In 2005, Tina Archuleta went to St. Mark’s Hospital in Salt Lake County for a laparotomy, a minor surgical procedure that involves an incision to the abdomen. Two days later, Archuleta was admitted to Ogden’s McKay-Dee Hospital Center for severe pains in her abdomen. Her initial procedure would take six corrective surgical operations, spread across an entire year, to fix. More than five years since Archuleta alleged that a surgeon’s incision damaged her physically, her court case has, in turn, cut to the heart of a legal debate over whether or not Utah patients should be allowed to sue hospitals for giving credentials to bad doctors.
On May 14, 2010, the Utah Supreme Court decided that Archuleta was entitled to a legal remedy against St. Mark’s based on “negligent credentialing,” a cause of action that faults hospitals for inadequate oversight of their physicians. Now Sen. Stuart Adams, R-Layton, is presenting Senate Bill 150 to essentially reverse the Utah Supreme Court decision by codifying that Utah hospitals can’t be sued for credentialing a bad doctor.
“I think this is a clear case of [the courts] legislating from the bench,” says Adams, adding that the new ruling will inflate health-care costs by forcing hospitals to purchase more liability insurance. For medical-malpractice attorneys like Dustin Lance, however, Adams’ bill is a prescription for hospitals to hire bad doctors without suffering any consequences.
“This gives hospitals a free hand to court, retain and profit from the exploits of predatory, addicted, sloppy or incompetent physicians,” Lance says. “Why? Because there’s no risk to them. This [bill] allows hospitals to take a dangerous [physician] and turn them into a moneymaker,” Lance says.
“It’s easy for trial lawyers to sit in their ivory tower and say, ‘We need to make all these changes,’ but they don’t often consider what the reality of that is for the average citizen,” says Dave Gessel, vice president of government affairs for the Utah Hospital Association, the trade group for Utah’s hospitals.
Gessel argues that rural hospitals need specialized service, and sometimes they can only provide that service by credentialing physicians with discipline histories.
Rural health care, however, is not Gessel’s biggest concern with the court’s decision.
“Until this Supreme Court decision, it was very clear that credentialing could be an open dialogue for everyone involved—peer physicians, hospital administrators, to the physician being credentialed, himself,” Gessel says. “If you have full and frank discussions on what the best type of medical practice is and what the best physician to have is, then you’re going to have better health care.” He says the new cause of action would have a “chilling effect” on hospitals’ internal discussions by targeting decision makers.
“[Malpractice attorneys] still have plenty of ways to sue us,” Gessel says. “But we’re drawing a line in the sand and saying Utah doesn’t need this one.”
Charles Thronson, a malpractice attorney with Parsons, Behle & Latimer (a firm that does legal work for City Weekly) and former president of the Utah Trial Lawyers Association, says hospitals are misstating the court’s decision, which only clarified that immunity was reserved for doctors and administrators against other doctors in peer-review situations. “The statute has nothing to do with a claim against a hospital by a patient,” he says.
“A majority of states permit a claim by patients for negligent credentialing. Utah would be one of very few states to give [hospitals] absolute immunity to hire a ‘Dr. Death’ ” or other dangerous physicians, he says.
While Gessel and Adams contend health-care costs will increase through more defensive medicine because of the court’s decision, Lance argues that costs will actually rise if Adams’ bill passes.
“There will be far more malpractice cases because hospitals will credential dangerous doctors because there really is no risk to them whatsoever,” Lance says.
Adams’ SB150 passed favorably out of the Senate Health and Human Services Committee on Feb. 14 and, at press time, is waiting to be heard on the Senate floor.