DQ 2-2

I would assume the patient is claiming the misfeasance form of negligence, or “improper performance of an act, resulting in injury to another” (Pozgar & Santucci, 2016, p. 65). Gross misconduct would also be claimed, or “the intentional or wanton omission of required care or performance of an improper act” (Pozgar & Santucci, 2016, p. 65). For the patient to win the case, the standard of care component of negligence must be proven. “…if an employee [the physician] fails to adhere to a hospital’s written standards of care and a patient is injured, the employee who violates those standards can be considered negligent if the patient is injured as a result of that violation. The hospital, in turn, could be found liable for the employee’s negligence under the doctrine of respondeat superior” (Pozgar & Santucci, 2016, p. 69).

While it is obvious that the patient suffered injury on behalf of the physician, who assaulted the patient, I do not feel negligence is established. “The mere occurrence of an injury ‘does not establish negligence for which the law imposes liability…” (Pozgar & Santucci, 2016, p. 72). It is difficult for me to establish causation in this case. There is obvious connection between the physician’s action and the resulting injury to the patient. My confusion lies in the patient leaving the hospital and then returning. Ultimately, I do feel causation could be proven, but it is a gray area for me. Eliminating causes and foreseeability, two other components of establishing negligence, would be easy for the plaintiff’s attorney to prove.

If I were the hospital administrator, I would fire the physician for his clear wrongdoing. His actions violate hospital policies and procedures. However, I do not feel the patient will win the court case, as I do not feel negligence via respondeat superior can be proven. The hospital’s legal team may represent the physician successfully.

Pozgar, G. D. & Santucci, N. M. (2016). Legal Aspects of Health Care Administration. (12th ed.).

Burlington, MA: Jones & Bartlett Learning.

2

Respondeat superior is the legal theory that employers are responsible for negligent acts of their employees. Under this theory employers are liable for the actions of their employees within the scope of their employment. Employers are responsible for hiring, training, supervising, and retaining their employees making them liable for their actions. In this scenario, it is dependent on whether the ER physician had an employer-employee relationship with the hospital, or in other words did the employer have the “right of control” over the employee (Thornton, 2010). The right of control means the control of details and manner of the work done by the employee or the ability to control the employee’s delivery of service, diagnosis, or treatment of the patient.

Hospital emergency room physicians may have different relationships with the hospital and are sometimes seen as independent contractors and not hospital employees. In this scenario the patient is claiming that the hospital is liable for the ER physicians’ actions under ostensible agency, the appearance of being an employee (Thornton, 2010). In scenarios such as this one, if the ER physician is considered an independent contractor and not a hospital employee, it is important to understand whether the hospital did anything to lure the patient to the emergency room, or why the patient went to that specific emergency room.

As the hospital administrator it would appear as if the emergency room physician, as an independent contractor would not fall under the employer/employee relationship of the hospital making the hospital not liable for their actions. However, I do see an issue with the fact that the patient was able to disconnect himself from telemetry and walk out of the hospital since those patients are often in critical conditions and need continuous monitoring and care. Since the legal action being pursued is against the hospital as negligent via respondeat superior for the physician's actions, it would still be their responsibility to end their agreement with the physician and their terms of employment there and to further investigate and determine if the sequence of events starting at the telemetry unit led to the patients injury and if the hospital is liable.

Thornton R. G. (2010). Responsibility for the acts of others. Proceedings (Baylor University. Medical Center), 23(3), 313–315.

3.

The doctrine of respondeat superior asserts employers can be liable for the actions of employees, if the employee is subservient to the employer and the employee commits a wrongdoing while in the course of their job (Pozgar, 2016). As the administrator of a hospital in which the ER physician hits a patient as in the scenario given in this discussion topic, I would want to do several things. First, immediately following the incident, it would be important to ensure the patient is properly cared for and ensure there are no serious injuries. This could be accomplished in the ER by another physician or the patient refuses, he could be transferred to another facility. Next, I would want to follow hospital policy in notifying an attorney and completing a full investigation. This investigation would likely include getting statements from the physician and other witnesses to the event. Many things must be considered in order to do a root cause analysis and determine how such an event could occur. The investigation must look at how the patient was able to enter and walk through the ER unhindered. It should also be determined if the physician is an employee, contracted, or a locum. Then the hospital’s hiring and credentialing practices and relevant contracts should be reviewed. Findings uncovered during the investigation whether through staff interview or process and policy review may lead to other areas to investigate. As the investigation unfolds any gaps in practice should be handled and corrected. The findings of the investigation would also help the administrator know what stance to take in any legal proceedings. While the goal would be to minimize any negative impacts of the event to the organization, if the organization was at fault, not only will it will bear responsibility for the physician’s actions, it also needs to work to improve processes to help prevent such an event from recurring.

Pozgar, G. D. (2016). Legal aspects of health care administration (12th ed.). Burlington, MA: Jones & Bartlett Learning.