Institutional Liability

Question 1

Healthcare institutions (Hospitals and Nursing Homes) subject to:

Answer 1

Health care institutions need licensing in every state
Healthcare institutions (Hospitals and Nursing Homes) subject to:

-Municipal building codes, zoning regulations, licensing fees
-Licensing fees for a hospital are determined by the number of beds
-Regulations govern an extensive number of things that may occur in a hospital
-Example of pharmacy regulations: some hospitals need to have pharmacy on site.

-Subject to regular inspection
-States have very robust input to ensure quality of care
-Certificate of Need required in some states (Not CA)
-Fire safety codes

Question 2

Joint Federal-State Regulations

Answer 2

Nursing Homes (Medicaid)
Smith v. Heckler: the care needs to be aligned with the focus of the Medicaid Act
Sunshine Haven: Nursing home found not to be in compliance with Medicaid via several surveys. Surveys did have substantial evidence. Life safety codes. Incredible long list of things to keep up with, institutions will say they are OVER-regulated. Sunshine only corrected things that they got caught doing.

Long Term Care
Skilled Nursing Facilities
Intermediate Care Facilities (Medicaid)
Acute Care Hospitals

Question 3

(Common Law)
The Old Rule for Charitable Immunity:

Answer 3

hospitals immune from the harm that happened due to their charitable nature
no longer applies.
Even not-for profit hospitals doesn’t mean hospitals don’t make $$ → it just means the money doesn’t go to shareholders

Question 4

Common Law
Theories under which Hospital Could be Liable

Answer 4

(1) Simple Negligence

(2) Respondeat Superior

(3) Actual Agency

(4) Apparent Agency

(5) Direct Corporate Liability

Question 5

Simple Negligence

Answer 5

Rule: that the hospital owed a duty of care to the patient and breached that duty of care.
Ex: if flooring is uneven

Question 6

Respondeat Superior

Answer 6

R: Employer can be held liable for negligently inflicted harms of its employees. Respondeat Superior is a form of strict liability. The employee must be: (1) acting within the scope of employment, or (2) the employee was in reality an independent contractor.
Limit: hospital has to say they are an employee

Question 7

Actual Agency

Answer 7

R: Even if the hospital argues that the doctor is an independent contractor, the hospital may still be liable under actual agency theory. The more control a hospital exerts over that physician, the more liable they will be under actual agency. Even though a hospital cannot exert control over medical decision-making,

Question 8

Apparent Agency

Answer 8

R: Allows hospitals to be held liable for their negligently inflicted harms of their independent contractors if: (1) they committed an act that would cause a reasonable person to believe the doctor was an agent of the hospital, or (2) they failed to take an action, which failure under the circumstances would allow a reasonable person to hold such a belief.

How to meet this:
was the hospital holding out that doctor as their own? → look at advertisements.
Mejia presumption: that the hospital is presumed to be holding out all of its physicians as its own agents or employees → forces hospital to show that they adequately informed the patient that the doctor was not their employee

Burless v. WV University Hospitals: having patients sign waivers was NOT enough.
If no (1) or (2), then hospitals can still be found liable under apparent agency if the plaintiff reasonably relied on the apparent agency relationship

Question 9

Direct Corporate Liability

Answer 9

Per Darling, hospitals have a duty to ensure a patient’s safety and well-being at the hospital. They have to uphold the standard of care → a reasonable hospital standard. No more charitable immunity for hospitals anymore. Negligence law can apply directly to hospitals
Plaintiffs can still sue a doctor but they can also sue the hospital. The hospital should have:
Standard reporting systems in place: should set up a reporting system where nurses can report irregular conditions and administrators can take action.
Have a doctor on staff that is skilled in the particular specialty of the injury
= very concrete things hospitals have to do to avoid liability

Question 10

Hospital Duties: 4 Duties

Answer 10

A duty to use reasonable care in the maintenance of safe and adequate facilities and equipment
A duty to select and retain only competent physicians
A duty to oversee all persons who practice medicine within its walls as to patient care
A duty to formulate, adopt, and enforce adequate rules and policies to ensure quality care for patients

Question 11

Policy Rationales:

Answer 11

Enforcing an existing standard of quality
Creating and imposing standard of quality
Providing injured patients with other sources of recovery
Incentivizing hospitals to allow only qualified physicians to practice there
Reducing injures: hospitals as the best accident avoiders (Systems approach)

Policy: theories may be too limited, direct hospital liability cannot be reached through the above theories of liability. Faults of PURELY the hospital.