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Negligent Credentialing - Physician with Multiple Malpractice Claims

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Bruce A. Vande Vusse
Foster Swift Health Care Law E-News
May 2012

In re-credentialing and granting staff privileges to a surgeon with a history of 17 medical malpractice suits, a hospital, through its credentialing committee, could not be found to have proximately caused a patient’s claimed injuries.  “We reject plaintiffs’ contention that the mere knowledge of these prior allegations by the credentialing committee was more likely than not to have generated some action by the committee that would have prevented plaintiff’s alleged harm” said a 2-1 divided panel of the Michigan Court of Appeals recently1 in determining that the hospital’s motion for summary disposition should have been granted.

A surgeon, Board certified in general and hand surgery, was claimed to have been professionally negligent in the course of performing hand surgery at the defendant hospital.  After settling with the surgeon, the plaintiff’s only remaining claim was against the hospital based on a theory that the hospital’s credentialing committee had negligently conducted its re-credentialing process.  The plaintiff claimed that the surgeon’s history of 17 medical malpractice actions at the time of his reapplication for staff privileges should have led the credentialing committee to either deny re-credentialing or take some other action such as a review examination, additional continuing education courses or direct observation and supervision by another surgeon during surgery, which would have prevented the plaintiff’s injuries.

The Court found the hospital did have a duty of due care in physician credentialing. This duty is based in the common law concept of “a reasonably prudent hospital” to insure the quality and competency of its physicians and in the statutory duty [MCL 333.21515(a) & (c)] to be “responsible for . . . selection of the medical staff.”  Plaintiff’s expert claimed the sheer number of the surgeon’s claims raised red flags requiring investigation looking for patterns or increased severity of outcomes as well as types of injuries.  Because there was evidence the credentialing committee had not received information regarding the “disposition” of the surgeon’s cases there was a question of fact for the jury whether the hospital had breached its duty.

The Court found the plaintiff had insufficient evidence of cause in fact, that “but for” the hospital’s failure to adequately investigate the surgeon’s malpractice history, plaintiff would not have been injured.  Plaintiff had produced no evidence regarding the surgeon’s “culpability” in the prior suits and the mere fact that lawsuits had been filed, without more, was insufficient proof the hospital would or should have denied re-credentialing.  The alternate actions (testing or more education or supervision) suggested by plaintiff were labeled “mere possibility” deemed inadequate by Supreme Court analysis.  Plaintiff’s theory of causation-in-fact supporting his negligent credentialing claims was “mere speculation”.

While this case demonstrates the difficulty in proving the causal connection between the actions of a group not involved in the subject surgery to surgery-related injuries, it may also represent that an inadequate amount of foundational data had been presented for the court to consider. Plaintiff’s expert had not done extensive review of the 17 case histories.  He had not reviewed 11 of the 17 cases at all, in five cases he had looked at the Complaint only and in one case he had reviewed the Complaint and some depositions.  He did not know the outcome of 16 of the 17 cases and believed the 17th had settled for an unknown amount.  The plaintiff may also have weakened his argument by pursuing the “speculative” alternative actions that the credentialing committee might have pursued rather than concentrating on the more straightforward re-credentialing should have been denied argument.  On the defense side, however, the hospital presented evidence that the injuries in the past cases were recognized complications, that the surgeon denied malpractice in all the cases, that the surgeon was not only properly licensed but also Board certified in general and hand surgery.

[1] Engelhardt v St John Health System, 2012 WL 1367543 (Mich. App.) (4-19-2012)