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Does Senate bill protect hospitals or just bad doctors?

by Eric S. Peterson
- Posted // 2011-02-24 -

In 2006 a hospitals hires a doctor with a known record of malpractice and is now a malpractice defendant from a 2009 case. Should the hospital be liable for hiring him? One senator says no.

A recent article explored Senate Bill 150, which is designed to essentially reverse a May 2010, Utah Supreme Court decision that says patients have a right to sue their hospital on the claim of negligent credentialing. This claim holds the hospital liable for giving credentials to doctors that have histories of incompetence or professional problems like substance abuse addictions. The bill sponsor, Sen. J. Stuart Adams, R-Layton, argues the court’s decision will drive up healthcare costs through defensive medicine. 

City Weekly has previously examined a doctor whose hospital is facing a negligent credentialing claim for the doctor’s alleged poor care of a patient. Dr. Ghansyam Massand was featured in the City Weekly cover feature “What You Don’t Know About Your Doctor Could Hurt You.” In that story, attorney Dustin Lance is quoted discussing the case his client Tammie Hatton has currently against Massand in the 8th District Court. Hatton, alleges that her broken arm looked worse after it came out of the cast than when she had broken it in a May 2009 horse-riding accident. Hatton alleges her physician, Massand, failed to place the right plates on the bone break and failed to see those plates coming apart in the cast X-rays. She says when she took off the cast her arm could bend backwards at a 45 degree angle.

While Lance says the need for a negligent credentialing cause of action are rare, he says Massand is a perfect example of a doctor that had a bad enough rap that he should not have been credentialed by Ashley Regional Medical Center in vernal, Utah, in the first place (Ashley Regional declined comment for this blog). Massand came to Utah in 2006 where he was accepted at Ashley Regional Medical but his license was restricted in concurrence with disciplinary ruling from Rhode Island and Massachusetts that restrict the orthopedic surgeon from doing any spinal operations—though no documents with the Utah Department of Occupational and Professional Licensing indicate why that restriction is in place. Lance sees such a restriction as a red flag. “His license is restricted, but the hospital hires him anyway. Why?” Lance asks. “Because there’s no risk to them.”

Massand’s attorney David Epperson, sees the negligent credentialing claim as frivolous especially considering his client’s history. “In the past 18 years, Dr.Massand has only had two medical malpractice actions filed against him; one was dismissed without payment and the other is pending (the Hatton arm fracture case),” Epperson writes via e-mail. While Massand’s history seems dated, Lance points out Massand was involved in another legal action worth noting—one where he actually sued his insurers, the Medical Professional Mutual Insurance Company of Massachusetts, for imposing remedial action on his license on February 14, 1992.

The company at the time “notified the plaintiff that, because of the number and severity of the malpractice claims filed against him, the committee had agreed unanimously to impose remedial action to reduce the risk of malpractice,” according to a Massachusetts court filing. Lance points out that if a doctor’s insurer has to impose action to protect their bottom line, then those actions should be indicative of a possibly reckless doctor to future hospitals. Yet the lack of malpractice claims in the past two decades also suggests that a hospital like Ashley Regional Medical may have felt a physician like Massand had corrected any previous errors in his professional practice.

Sen. Adams, the sponsor of the bill to create legal language eliminating the negligent credentialing cause of action, says hospitals should be able to determine when doctors are fit to practice. “Maybe they’ve given you a second chance,” Adams says. “At what point do you say that’s a philanthropic thing to do and at what point do you say that’s the wrong thing to do? It’s just another cause of action that hospital’s have to buy liability insurance for.”

Adams’ bill passed Senate floor debate today and is now headed to the House.

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