This article is an expanded version of a paper presented to the Health Law Teachers Conference at the University of Maryland on June 4, 1993.Google Scholar

See, e.g., Holt v. Godsil, 447 So.2d 191 (Ala. 1984); Senesac v. Associates in Obstetrics and Gynecology, 141 Vt. 310, 449 A.2d 900 (1982). See generally Morris, Custom and Negligence, 42 Colum.L.Rev. 1147 (1942).Google Scholar

See King, , “In Search of a Standard of Care for the Medical Profession—the ‘Accepted Practice’ Formula,” 28 Vand.L.Rev. 1213, 1236 (1975).Google Scholar

See, e.g., Toth v. Community Hospital at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S.2d 440, 239 N.E.2d 368 (1968), where the defendant doctor had ordered a reduction in the flow of oxygen to the plaintiff, and the nursing staff had failed to carry out the order. “There is no policy reason why a physician, who knows or believes there are unnecessary dangers in the community practice, should not be required to take whatever precautionary measures he deems appropriate.” See also Burton v. Brooklyn Doctors Hospital, 88 A.D.2d 217, 452 N.Y.S.2d 875 (S.C.N.Y., App. Div. 1982); Lundahl v. Rockford Memorial Hospital Association, 93 Ill.App.2d 461, 465, 235 N.E.2d 671, 674 (1968) (“what is usual or customary procedure might itself be negligence”); Favalora v. Aetna Casualty & Surety Company, 144 So.2d 544 (La.App. 1962); Toth v. Community Hospital at Glen Cove, 22 N.Y.2d 255, 263, 292 N.Y.S.2d 440, 447–48, 239 N.E.2d 368, 373 (1968) (“evidence that the defendant followed customary practice is not the sole test of professional malpractice”).Google Scholar

519 P.2d 981 (Wash. 1974), reaffirmed in Gates v. Jensen, 595 P.2d 919.Google Scholar

Other states that have considered Helling have rejected the Washington courts' position. See Barton v. Owen, 139 Cal. Rptr. 494 (Cal. Ct. App., July 1, 1977) (claims physicians negligently acted in treatment of brain abscess); Osborn v. Irwin Memorial Blood Bank, 7 Cal. Rptr. 2d 101 (Cal. Ct. App., April 8, 1992) (child contracted AIDS from blood transfusion in course of heart surgery). But see Hernandez v. Nueces County Medical Society Community Blood Bank, 799 S.W.2d 867 (Tex. Ct. App., Aug. 31, 1989) (personal injury action against blood bank for negligence in failing to conduct surrogate test for hepatitis although not required to by American Association of Blood Banks and Food and Drug Administration; held that where precautions are imperative, their disregard will not excuse their omission.)Google Scholar

466 So. 2nd 856 (Miss. 1985).Google Scholar

Zintek v. Perchik, 471 N.W.2d 522, 530 (Wis. C.A. 1991).Google Scholar

See generally Eddy, Clinical Policies and the Quality of Clinical Practice, 307 N.Eng.J.Med. 343 (1982).Google Scholar

See Warrick v. Giron, 290 N.W.2d 166 (Minn. 1980) (the defendants introduced a computerized search they had conducted, revealing no evidence that the surgical and anesthesiological techniques utilized by the defendants were improper.)Google Scholar

See generally Kinney, and Wilder, , “Medical Standard Setting in the Current Malpractice Environment: Problems and Possibilities,” 22 Univ. Cal. Davis L. Rev. 421 (1989).Google Scholar

See generally Chapter 15, Legal Impediments to Physician Efforts to Increase Appropriateness of Care, in Physician Payment Review Commission: Annual Report to Congress 1990.Google Scholar

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See also Vermont Health Care Reform Act, Act 160, 18 V.S.A. s. 9403 et seq (1992); The HealthRight Act(MnCare), Mn. Laws 1992, Ch. 549; The Florida Health Plan, Fl. Laws, Ch. 92-33, s. 408.02 (1992).Google Scholar

For a discussion of the politics of the Maine Treatment Guidelines, see Edward Felsenthal, “Cook Care: Maine Limits Liability for Doctors Who Meet Treatment Guidelines,” Wall St. J. A-1, A-9 (May 3, 1993).Google Scholar

The leading law review article, often relied upon by courts adopting the doctrine, is King, “Causation, Valuation and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences,” 90 Yale L.J. 1353 (1981). See also Boggs, Beth C., “Lost Chance of Survival Doctrine: Should the Courts Ever Tinker with Chance,” 16 So.Ill.U.L.J. 421 (1992); Orloff, and Stedinger, , “A Framework for Evaluating the Preponderance of the Evidence Standard,” 131 U.Pa.L.Rev. 159 (1983); Note, “The Loss of a Chance Theory in Medical Malpractice Cases: An Overview,” 13 Am.J.Trial Adv. 1163 (1990); King, J., The Law of Medical Malpractice in a Nutshell 203–209 (1986); Health Care Law and Ethics (Southby, R.M.F. and Hirsh, H.L., eds. 1989); Shoenberg, Allen E., “Causation and Valuation in the Loss of a Chance to Survive,” 6 J.Legal.Med. 51 (1985); Note, “Increased Risk of Harm: A New Standard for Sufficiency of Evidence of Causation in Medical Malpractice Cases,” 65 Bos. Univ.L.Rev. 275 (1985); Comment, “Proving Causation in ‘Loss of a Chance’ Cases: A Proportional Approach,” 34 Cath.U.L.Rev. 747 (1985); Hodson, John D., “Annotation, Causation — Loss of Chance,” 54 A.L.R. 4th 10 (1987).Google Scholar

See Fabio v. Bellomo, 489 N.W.2d 241 (Minn.App. 1992).Google Scholar

See, e.g., Waddell v. Jordan, 302 So. 2d 74 (Ala. 1974) (doctor delayed in seeing a patient suffering from heart attack and the court held that a scintilla of evidence of negligence is enough for the issue of proximate cause to be submitted to the jury).Google Scholar

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Note, “The Loss of a Chance Theory in Medical Malpractice Cases: An Overview,” 13 Am.J.Tr.Advoc. 1163 (1990). See Waffen v. United States Dep't of Health & Human Servs., 799 F.2d 911 (4th Cir. 1986) (loss of a substantial chance of survival is a legally compensable harm); DeBurkarte v. Louvar, 393 N.W.2d 131 (Iowa 1986) (family physician failed to timely diagnose plaintiff's breast lumps as cancerous).Google Scholar

See, e.g., Hicks v. United States, 368 F.2d 626 (4th Cir. 1966) (if any substantial possibility of survival existed and if defendant's conduct destroyed it, the defendant is answerable); Voegli v. Lewis, 568 F.2d 89 (8th Cir. 1977) (necessary to prove by a preponderance of the evidence that physician's negligence substantially reduced chances of saving a leg).Google Scholar

See, e.g., Roses v. Feldman, 608 A.2d 383 (N.J.Super.Ct. 1992) (delayed diagnosis of lung cancer); Snead v. United States, 595 F.Supp. 658 (D.D.C. 1984) (District of Columbia law applied to a physician who failed to obtain a Pap smear during a gynecological exam that could have disclosed cancer).Google Scholar

See, e.g., Rewis v. United States, 503 F.2d 1202 (5th Cir. 1974) (New Mexico law applied to a case involving a physician who prescribed aspirin to a baby suffering from aspirin poisoning); Abille v. United States, 482 F. Supp. 703 (N.D. Cal. 1980).Google Scholar

A recent example is In Re Englert, 605 So.2d 1349 (La. 1992) (plaintiff alleged that physician failed to diagnose brain tumor, delaying surgery to remove tumor. Court allowed damages for increased risk of recurrence of tumor and for accompanying anxiety about that possibility); see also Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958); Howard v. Mt. Sinai Hospital, Inc., 217 N.W.2d 383 (Wisc. 1974).Google Scholar

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See, for a recent example, Gilliam v. Roche Biomedical Laboratories, Inc., CA. 8, No.92–1854 (March 25, 1993)(reported in BNA's Health Law Reporter, 4-1-93 (Vol.2, p. 407) (expert's testimony as to chance of increased cancer risk linked to misread laboratory test admissible to help jury evaluate patient's fear of future illness in calculating damages.)Google Scholar

583 A.2d 422 (S.C. Pa. 1990)Google Scholar

See also Shephard v. Redford Community Hospital, 390 N.W. 2d 239 (C.A. Mich. 1986).Google Scholar

See Skillings v. Allen, 173 N.W. 663 (Minn. 1919); Edwards v. Lamb, 45 A.480 (N.H. 1899); Lemmon v. Freese, 210 N.W. 2d 576 (Ia. 1973); Jones v. Stanko, 160 N.E. 456 (Ohio 1928). See generally Physicians and Surgeons, 61 Am.Jur.2d 170 (1964); McDonald, , “Ethical Problems for Physicians Raised by AIDS and HIV Infection: Conflicting Legal Obligations of Confidentiality and Disclosure,” 22 Univ. Cal. Davis L. Rev. 557 (1989).Google Scholar

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In Meyers v. Quesenberry, 144 Cal. App. 888, 193 Cal. Rptr. 733 (1983), the physician failed to warn his patient, a diabetic, of the dangers of driving. In Gooden v. Tips, 651 S.W.2d 364 (Tex. Ct. App. 1983), the physician failed to warn the patient of the dangers of driving while taking tranquilizers. In Watkins v. United States, 589 F.2d 214 (5th Cir.1979) the plaintiff was injured in a collision with a patient of the defendant. The defendant had prescribed a 50 day supply of Valium without checking the patient's psychiatric history and the patient proceeded to drink alcohol and take the pills. He then tried to kill himself by deliberately driving his car into the plaintiff's car. Held: defendant was negligent as to anyone who would be endangered by the patient's predictably irresponsible behavior. In Freese v. Lemmon, 210 N.W.2d 576 (Ia. 1973), liability was found where the doctor failed to warn the patient about the risk of a sudden seizure, and the patient then drove into the plaintiff during a fainting spell. In Kaiser v. Suburban Transportation System, 65 Wn.2d 461, 398 P.2d 14 (1965) amended, 65 Wn.2d 461, 401 P.2d 350 (1965), the doctor prescribed a drug for a patient, a bus driver, but neglected to tell him that it might make him sleepy. The doctor was held liable to the bus passengers and other third persons who were harmed when the driver fell asleep at the wheel. But see Forlaw v. Fitzer, 456 So.2d 432 (Fla. 1984) (doctor prescribed Quaaludes to a known addict, who then drove into a child riding a bicycle and killed her. The court ruled that there was no negligence per se, because there had been no violation of the Florida controlled substances statute).Google Scholar

See for example Davis v. Lhim, 335 N.W. 2d 481 (Mich.C.A. 1983), in which the Michigan Supreme Court held that a psychiatrist owes a professional duty of care to those who could be foreseeably injured by his patient.Google Scholar

551 P.2d 334 (Cal. 1976)Google Scholar

See also McIntosh v. Milano, 403 A.2d 500 (N.J.Super. 1979); Hedlund v. Superior Court of Orange County, 669 P.2d 41 (Cal. 1983); Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185 (D.Neb.1980).Google Scholar

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Hales v. Pittman, 576 P.2d 493 (Ariz. 1978) (discussing the battery count of the plaintiff's complaint).Google Scholar

See generally Rheingold, Paul D., “The Admissibility of Evidence in Malpractice Cases: The Performance Records of Practitioners,” 58 Brooklyn L. Rev. 75, 80 (1992); Twerski, Aaron D. and Cohen, Neil B., “Comparing Medical Providers: A First Look at the New Era of Medical Statistics,” 58 Brooklyn L. Rev. 5, 12-13 (1992); Note, “Provider-Specific Quality-of-Care Data: A Proposal for Limited Mandatory Disclosure,” 58 Brooklyn L. Rev. 85 (1992).Google Scholar

Holt v. Nelson, 523 P.2d 211 (Wash.C.A. 1974)Google Scholar

Logan v. Greenwich Hospital Association, 465 A.2d 294 (Conn. 1983). In Wenger v. Oregon Urology Clinic, P.C., 796 P.2d 376(Or.C.A. 1990), the court held that defendants failed to properly inform plaintiff of several treatment alternatives to treat Peyonie's disease, a male genital condition which can impair sexual function. The procedure used by the defendant caused an infection, ultimately leading to the amputation of the plaintiff's penis.Google Scholar

See Lienhard v. State, 431 N.W.2d 861 (Minn. 1988) (managing pregnancy at home rather than in hospital not a choice between alternative methods of treatment; disclosure therefore not required).Google Scholar

578 So.2d 1192 (C.A. La. 1991).Google Scholar

727 P.2d 819 (Ariz.C.A. 1986).Google Scholar

592 A.2D 1251 (N.J.Sup. 1991).Google Scholar

See, e.g., Hermann, and Gagliano, , “AIDS, Therapeutic Confidentiality, and Warning Third Parties,” 48 Md.L.Rev. 55 (1989); Gostin, “Hospitals, Health Care Professionals, and AIDS: The ‘Right to Know’ the Health Status of Professionals and Patients,” 48 Md.L.Rev. 12 (1989); Comment, “Doctor-Patient Confidentiality versus Duty to Warn in the Context of AIDS Patients and Their Partners,” 47 Md.L.Rev. 675 (1988); Note, “Between a Rock and a Hard Place: AIDS and the Conflicting Physician's Duties of Preventing Disease Transmission and Safeguarding Confidentiality,” 76 Geo.L.J. 169 (1987).Google Scholar

The court observed that the actual risk of transmission is small, in the range of 1/130,000 to 1/4,500. But it also found that the cumulative risk to surgical patients would be much higher.Google Scholar

592 A.2D 1251, 1278.Google Scholar

592 A.2D 1251, 1280.Google Scholar

Id.Google Scholar

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For an effective argument that human rights are violated by such an expanded duty to disclose provider infection, see Glantz, Leonard H., Mariner, Wendy K. and Annas, George J., “Risky Business: Setting Public Health Policy for HIV-infected Health Care Professionals,” 70 Milbank Memorial Fund 43 (1992)Google Scholar

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See Entin, , “DRGs, HMOs, and PPOs: Introducing Economic Issues in the Medical Malpractice Case,” 20 Forum 674 (1985).Google Scholar

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42 U.S.C. 1395nn.Google Scholar

321 S.E.2d 240 (N.C.A. 1984).Google Scholar

See Mehlman, , Rodwin, , Boyd, , Pellegrino, , Feldman, , Lambert v. Park, Ostojic v. Brueckmann, Margaret S. v. Edwards, supra note 53.Google Scholar

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See also Valdez v. Lyman-Roberts Hosp., Inc., 638 S.W.2d 111 (Tex.App.1982)Google Scholar

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See Emory University v. Porter, 120 S.E.2d 668, 670 (Ga.App. 1961); Lauro v. Travelers Ins. Co., 261 So.2d 261 (La. App. 1972); Bellaire General Hosp. v. Campbell, 510 S. W.2d 94 (1974) (hospital liability for supplying deficient oxygen equipment).Google Scholar

In Blakev. D.C. General Hospital (discussed in Mehlman, “Rationing Expensive Lifesaving Medical Treatments,” 1985 Wisc.L.Rev. 239) the trial court allowed a case in which the plaintiff's estate claimed that she died because of the hospital's lack of a CT scanner to diagnose her condition to go to the jury. The court found a duty to transfer in such circumstances.Google Scholar

Air Shields, Inc. v. Spears, 590 S.W.2d 574 (Tex.Civ.App. 1979)(negligently created rules and regulations as to oxygen administration to infants, basis for liability).Google Scholar

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See also Habuda v. Trustees of Rex Hospital, 164S.E.2d 17 (N.C. App. 1968), where the hospital was liable for inadequate rules for handling, storing, and administering medications; Herrington v. Miller, 883 F.2d 411 (5th Cir. 1989) (failure to provide for adequate 24-hour anesthesia service). See also Ball Memorial Hosp. v. Freeman, 196 N.E.2d 274 (Ind. 1964).Google Scholar

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See, e.g., Johnson v. University of Chicago Hospitals et al., 982 F.2d 230 (1992).Google Scholar

Several definitions of patient dumping have been set forth in the case law and various commentary, and each interpretation varies the scope of EMTALA. In Deberry v. Sherman Hosp. Ass'n, 741F. Supp. 1302, 1304 (N.D. Ill. 1990), the court stated patient dumping refers to a “hospital's refusal to treat an emergency patient, even though the hospital is physically capable of doing so, simply because the patient may be unable to pay.” The court in Owens v. Nacogdoches County Hosp. Dist., 741 F. Supp. 1269, 1271–72 (E.D. Tex. 1990), noted “the Act was a response to a national epidemic of dumping, the practice of hospitals refusing emergency care to indigent patients outright or of transferring such patients, without regard to the necessity for stabilizing their condition, to other—typically public—hospitals.” In Jones v. Wake County Hosp. System, Inc., 786 F. Supp. 538, 541-42 (E.D. N.C. 1991), the court said “the practice of patient dumping, the refusal of a hospital emergency room to treat a person who does not have medical insurance.”Google Scholar

One recent commentator believes that the Act has evolved into a federal malpractice law. Comment, “Son of COBRA: The Evolution of a Federal Malpractice Law,” 45 Stan. L. Rev. 163 (1992). The federal courts have plainly rejected the notion that EMTALA is a federal malpractice law.Google Scholar

42 U.S.C. 1395dd(d)(2)(A); see also Baber v. Hospital Corporation of America, 977 F.2d 872 (4th Cir. 1992).Google Scholar

42 U.S.C. § 1395dd(d)(2)(A). See Ballachino v. Buffalo Medical Group, No. 92-CV-216C, (W.D. N.Y. January 27, 1993), 1993 U.S. Dist. Lexis 909 (the Act's enforcement provision, codified at § 1395(d)(2)(A), is explicitly limited to actions against the participating hospital so that there is no private right of action against individual physicians under EMTALA). A minority of courts have held that emergency room physicians could be sued under the Act. In Sorrells v. Babcock, 733 F. Supp. 1189, 1193 (N.D. Ill. 1990) the court cited EMTALA's legislative history and held that federal jurisdiction over emergency room physicians was proper and a federal cause of action can be brought against a physician violating the Act.Google Scholar

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42 U.S.C. s. 1395dd(b)(1).Google Scholar

42 U.S.C. s. 1395dd(b); Thornton v. Southwest Detroit Hospital, 895 F.2d 1131 (6th Cir. 1990); Smith v. Richmond Memorial Hospital, 416 S.E. 2d 689 (Va. 1992); McIntyre v. Schick, 795 F.Supp. 777 (E.D. Va. 1992); Helton v. Phelps County Regional Medical Center, F. Supp. (1992 WL 1742298, E.D. Mo.)Google Scholar

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See Thornton, , supra.Google Scholar

If the patient refuses to consent to treatment or transfer, the hospital has met its obligations under COBRA, so long as it informed the patient of the risks and took all reasonable steps to get the patient's written informed consent to refuse the treatment or transfer. 42 U.S.C. s. 1395dd(b)(2),(3).Google Scholar

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42 U.S.C. s. 1395dd(e)(3).Google Scholar

Bryant v. Riddle Memorial Hosp., 689 F. Supp. 490, 491–93 (E.D. Pa. 1988); Thorton v. Southwest Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990).Google Scholar

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Ibid.Google Scholar

Lee v. Alleghany Regional Hosp. Corp., 778 F. Supp. 900, 903 (W.D. Va. 1991).Google Scholar

Lee v. Adrales, 778 F. Supp. 904, 906 (W.D. Va. 1991)(rejecting defendant's state law challenge to testimony of plaintiff's expert witness, a nonspecialist who did not practice in the state where alleged tort occurred). Physicians are reluctant to testify that a colleague breached a standard of care. Under EMTALA, they may be willing to testify that the plaintiff had an emergency condition, did not receive an appropriate medical screening, or was not stabilized. Chessick, Kenneth & Fisk, John, “Outlook: Using Federal Law to Protect Against Patient Dumping,” 6 Prof. Negl. L. Rep. 175, 176 (1991).Google Scholar

Son of COBRA: supra note 78.Google Scholar

§ 1395dd(d)(2)(A).Google Scholar

12§ 1395dd(f).Google Scholar

709 F. Supp. 853 (S.D. Ind. 1989).Google Scholar

Reid, 709 F. Supp. at 855–56 (citing 42 U.S.C. § 1395dd(d)(3)(A).Google Scholar

42 U.S.C. § 1395cc(a)(1)(N)(iii).Google Scholar

727 F. Supp. 495, 497 (S.D. Ind. 1989).Google Scholar

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See, e.g., Reid v. Indianapolis Osteopathic Medical Hospital, Inc., 709 F.Supp. 853 (S.D. Ind. 1989)(held that s. 1395dd(d)(2)(A) did not incorporate requirement that complaint be presented before a medical review panel, but did incorporate the cap on damages, therefore denying hospital's motion to dismiss).Google Scholar

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Evitt v. University Heights Hospital, 727 F. Supp at 497; see also Steward v. Myrick, 731 F.Supp. 433 (D.Kan. 1990) (claim did not present dumping complaint of type Congress sought to eliminate); Nichols v. Estabrook, 741 F.Supp. 325, 330 (D.N.H. 1989) (despite evidence of negligence, court required showing that “financial condition or lack of health insurance contributed to Dr. Estabrook's decision not to treat their son…”; Zaikaner v. Danaher, No 4-89-749, 1990 WL 264721 (D. Minn. October 21, 1990); Thorton v. Southwest Detroit Hosp., 895 F.2d 1131, 1132 (6th Cir. 1990).Google Scholar

“Any individual” applies to any patient presenting himself or herself in a hospital emergency room regardless of ability to pay. Ballachino v. Buffalo Medical Group, No. 92-CV-216C, (W.D. N.Y. January 27, 1993), 1993 U.S. Dist. Lexis 909; Woessner v. Freeport Memorial Hospital, No. 91 C 20005, (N.D. Ill. January 11, 1993), 1993 U.S. Dist. Lexis 160; Urban v. King, 783 F. Supp. 560, 562 (D. Kan. 1992); Collins v. DePaul Hosp., 963 F.2d 303, 308 (10th Cir. 1992).Google Scholar

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Burditt v. United States Dep't of health and Human Services, 934 F.2d 1362, 1373 (5th Cir. 1991)Google Scholar

See also Boyle v. Lauengco, 1991 Westlaw 1563 (Ohio App.), where court held that hospitals have a requirement to provide the screening for all patients to determine if an emergency medical conditions exists or a pregnant woman is in active labor.Google Scholar

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Cleland, at 268-69, 271-72. The Cleland court noted that, to violate COBRA, a deviation from standard procedure must also result from an “improper motive,” such as racial prejudice, political opposition, or the patients's indigence. Id. at 271–72. The court apparently intended the category of improper motives to be broad, so it is unclear how much of a limitation this would be. Id. Subsequent decisions have rejected the improper motive test because it does not appear in the statute. Gatewood v. Washington Healthcare Corp., 933 F.2d 1037,1041 (D.C. Cir. 1991).Google Scholar

Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1041(D.C.Cir. 1991)(noting that while some overlap may exist between federal and state causes of action, “most questions related to the adequacy of… standard screening and diagnostic procedures must remain the exclusive province of local negligence law”); cf. Thorton v. Southwest Detroit Hosp., 895F.2d 1131, 1133 (6th Cir. 1990) (using the fact that “Congress has created a new, federal cause of action…not analogous to a state medical malpractice claim,” to support federal subject matter jurisdiction).Google Scholar

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See, e.g., Baber v. Hospital Corporation of America, 977 F.2d 872, 878–79 (4th Cir. 1992).Google Scholar

See generally Hylton, Maria O'Brien, “The Economics and Politics of Emergency Health Care for the Poor: The Patient Dumping Dilemma,” 1992 Brig. Y. U. L. Rev. 971; Karen Rothenberg, “Who Cares? The Evolution of the Legal Duty to Provide Emergency Care,” 26 Hous. L. Rev. 21 (1989). For background evidence, see Kellerman, & Hackman, , “Emergency Department Patient Dumping: An Analysis of Interhospital Transfers to the Regional Medical Center at Memphis, Tennessee,” 78 Am.J.Publ.Health 1287 (1988). See also Schiff, , Ansell, , Schlosser, et al., “Transfer to a Public Hospital: A Prospective Study of 467 Patients,” 314 New Eng.J.Med. 552 (1986)Google Scholar

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The Harvard Community Health Plan is engaged in the National Demonstration Project on Industrial Quality Control and Health Care Quality; the Park Nicollet Medical Foundation and Med Centers HealthPlan, a network model HMO with 250,000 members in Minnesota and western Wisconsin, is studying practice patterns, with variations to be subjected to peer review to correlate them to outcomes. For a summary of many of these current outcome-based research projects, see 7 Health Affairs 145–150 (1988)]Google Scholar

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See generally Rheingold, Paul D., “The Admissibility of Evidence in Malpractice Cases: The Performance Records of Practitioners,” 58 Brooklyn L. Rev. 75, 80 (1992) (“It does seem inescapable…that part of the information about risks would be what the doctor's own experience has been, even if all risks are lumped together.”); Twerksi, Aaron D. and Cohen, Neil B., “Comparing Medical Providers: A First Look at the New Era of Medical Statistics,” 58 Brooklyn L. Rev. 5, 12–13 (1992) (as statistical validity of data is established, it will become part of litigation); Note, “Provider-Specific Quality-of-Care Data: A Proposal for Limited Mandatory Disclosure,” 58 Brooklyn L. Rev. 85 (1992).Google Scholar

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See Emmons, David W., Wozniak, Gregory D., Otten, Robert D. and Baker, Neal A., “Data on Employee Physician Profiling, Data on Employee Physician Profiling,” 26 J. Health and Hosp. Law 73 (March 1993); see also Eichhorn, , Cooper, , Cullen, , Maier, , Phillip, and Seeman, , “Standards for Patient Monitoring During Anesthesia at Harvard Medical School,” 256 J.A.M.A. 1017 (1986).Google Scholar

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Firm statistical distributions may also generate inferences, akin to those of res ipsa loquitur, that a patient injury is more properly attributable to provider negligence than innocent explanations, recognizing the increased statistical likelihood that a provider was negligent in the particular case. The fairest and most likely use of this is at the level of the institutional provider, with more cases and more individual providers on staff or employees.Google Scholar

Classen, , “Hospital Liability for Independent Contractors: Where Do We Go from Here?” 40 Ark.L.Rev. 469, 478 (1987)Google Scholar

See generally Havighurst, , “Doctors and Hospitals: An Antitrust Perspective on Traditional Relationships,” 1984 Duke L.J. 1071, 1084–92.Google Scholar

Corleto v. Shore Memorial Hospital, 350 A.2d 534(N.J. 1975). This appears to be an isolated decision at present, with no other courts following suit.Google Scholar

Bell v. Sharp Cabrillo Hospital, 260 Cal. Rptr. 37 (Cal.C.A. 4th Dist. 1989)Google Scholar

Johnson v. Misericordia Community Hospital, 301 N.W.2d 156 (Wis. 1981)Google Scholar

Rule v. Lutheran Hospital, 835 F.2d 1250 (8th Cir. 1987)Google Scholar

Insinga v. LaBella, Humana et al., 543 So.2d 209 (Fla. 1989) (non-physician fraudulently obtained an appointment to the medical staff, after having assumed the name of a deceased Italian physician); Bell v. Sharp Cabrillo Hosp., 212 Cal.App.3d 1024,260 Cal.Rptr. 886 (1989) (extreme laxity in pre-credential investigation; applicant's file was full of obvious indications of his incompetence); Rule v. Lutheran Hosp., 835 F.2d 1250 (8th Cir. 1987)Google Scholar

Pub.L.No. 99-160, 100 Stat. 3784 (codified at 42 U.S.C. s. 11101-ll152 (amended by Public Health Service Amendments of 1987, Pub.L.No. 100–177, 101 Stat. 986).Google Scholar

No. 228566 (Sacramento County Super. Ct., Cal. 1973), rev'd on other grounds, 131 Cal.Rptr 717 (C.A. 1976).Google Scholar

Cronic v. Doud, 523 N.E.2d 176 (Ill. C.A. 1988) (unnecessary surgery by physician should have been detected by hospital through utilization review, since it had data to put it on notice of problem). Contra, Reynolds v. Mennonite Hospital, 522 N.E.2d 827 (Ill.App. 4 Dist), reh'g denied, 530 N.E.2d 264 (1988) (summary judgment for hospital on same facts as Cronic, but plaintiff had not pleaded utilization review data).Google Scholar

Cronic v. Doud, 523 N.E.2d 176 (Ill. C.A. 1988); Corleto v. Shore Memorial Hospital, 350 A.2d 534 (N.J.Super. 1975).Google Scholar

Albain v. Flower Hosp, 50 Ohio St.3d 151 (1990). See also Purcell v. Zimbelman, 500 P.2d 335 (Ariz. 1972) (hospital liable for failing to restrict operating privileges of staff surgeon, when it had constructive notice that he was incompetent to perform certain procedures, including past malpractice claims).Google Scholar

Oehler v. Humana, Inc., 775 P.2d 1271 (Nev. 1989).Google Scholar

See Schenck v. Guam, 609 F.2d 387 (9th Cir. 1979); Hull v. North Valley Hosp., 498 P.2d 136 (Mont. 1972).Google Scholar

See generally the writings of John Blum on the subject of economic credentialing. Blum, John D., “Economic Credentialing: A New Twist in Hospital Appraisal Processes, 12 J. Leg. Med. All (1991); Blum, Evaluation of Medical Staff Using Fiscal Factors: Economic Credentialing,” J. Health & Hosp. L. 65 (1993).Google Scholar

Cronic v. Doud, 168 Ill. App.3d 665, 523 N.E.2d 176 (1988) (unnecessary surgery by physician should have been detected by hospital through utilization review, since it had data to put it on notice of problem). Contra, Reynolds v. Mennonite Hospital, 522 N.E.2d 827 (Ill.App. 4 Dist), reh'g denied, 530 N.E.2d 264 (1988) (summary judgment for hospital on same facts as Cronic, but plaintiff had not pleaded utilization review data).Google Scholar

Cronic v. Doud, 168 Ill. App.3d 665, 119 Ill. Dec. 708, 523 N.E.2d 176 (1988); Corleto v. Shore Memorial Hospital, 138 N.J.Super. 302, 350 A.2d 534 (1975).Google Scholar

Albain v. Flower Hosp, 50 Ohio St.3d 151 (S.CT. 1990).Google Scholar

Oehler v. Humana, Inc., 775 P.2d 1271 (Nev.S.Ct. 1989).Google Scholar

See Restatement (Second) Agency s. 214 (failure of principal to perform non-delegable duty).Google Scholar

A non-delegable duty is an exception to the rule that an employer is not liable for the negligence of an independent contractor. Keeton, W., Dobbs, D., Keeton, R., Owen, D., Prosser and Keeton on The Law of Torts, § 71 at 511–12 (5th ed. 1984).Google Scholar

743 P.2d 1376 (Alaska 1987).Google Scholar

See also Williams v. St. Claire Medical Center, 657 S.W.2d 590 (C.A. Ky. 1983) (“when a hospital has received a patient, under whatever circumstance, and has undertaken treatment, that patient is owed a duty by the hospital through its employees and staff, including independent staff personnel, to exercise appropriate care to provide for the patient's well-being and to promote his cure…. Any lesser rule would be insensible to the true role of a hospital as an institution in present day society.”)Google Scholar

Griffin v. Matthews, 522 N.E.2d 1100 (Ohio App. 1987) (emergency room operation); Stratso v. Song, 477 N.E. 2d 1176 (Ohio App. 1984) (anesthesiologists in operating room); Stropes v. The Heritage House Children's Center of Shelbyville, Inc., 547 N.E. 2d 244 (Ind. 1989), reh'g denied, Mar. 1, 1990) (retarded child in children's center as ward of state was sexually assaulted by employee; court held that nondelegable duty owed to child to provide protection and care).Google Scholar

“The practice of emergency room medicine is not an activity that ‘starts with danger and requires preventive care to make safety,’ which would characterize the practice of medicine as an inherently dangerous activity; instead, the practice of emergency room medicine ‘starts with safety and requires negligence to make danger.’” Kelly v. St.Luke's Hospital of Kansas City, 826 S.W.2d 391, 396 (Mo.App. 1992).Google Scholar

793 P.2d 824 (Mont. 1990).Google Scholar

553 N.E.2d 1038 (Ohio 1990).Google Scholar

The mission of a hospital, and its projection to the community at large, creates expectations. “Voluntarism, community, and cooperation are potent values for hospitals, which deliver care. Hospitals sit in one place and render intimate, caring human services to people who often feel a personal identification with the institutions' histories, staffs, and corporate identities. None of this applies to health insurance, whose tasks are actuarial, technical, impersonal, and bureaucratic.” Brown, Laurence D., “Capture and Culture: Organizational Identity in New York Blue Cross,” 16 J. Health Politics, Policy and Law 651, 669 (1991).CrossRefGoogle Scholar

Priest, A.J.G., “Possible Adaptation of Public Utility Concepts in the Health Care Field,” 35 L. & Contemp. Prob. 839 (1970).Google Scholar

See Southwick, , “Hospital Liability—Two Theories Have Emerged,” 4 J.Legal.Med. 1, 49 (1983).Google Scholar

Such judicial decisions have changed institutional provider behavior. The decision by the Alaska Supreme Court in Jackson, for example, led plaintiff's attorneys in Alaska to include hospitals in every suit they brought against individual physicians. Some hospitals in Alaska responded to this by deciding to hire their own emergency room physicians so the hospital would not have to worry about being joined in suits brought against independent contractor physicians. See Health Week, June 6, 1988, P. 1, 33.Google Scholar

The American Law Institute, Reporters' Study, Enterprise Responsibility for Personal Injury, Vol.II: Approaches to Legal and Institutional Change (April 15, 1991) at 113 et seq. (hereafter ALI Study).Google Scholar

See generally Priest, G., “The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law,” 14 J.Leg.Stud. 461 (1985). The idea can certainly trace its foundations to worker's compensation arguments. Discussions of “channeling” of liability, driven by insurance concerns, can be found in Kenneth Abraham, “Medical Malpractice Reform: A Preliminary Analysis,” 36 Maryland L.Rev. 489, 520-522 (1977). Abraham, along with Paul Weiler of Harvard, is one of the architects of the enterprise liability approach of the American Law Institute.Google Scholar

Southwick, A., “Hospital Liability: Two Theories Have Been Merged,” 4 J.Legal Med. 1 (1983).Google Scholar

ALI Study at 114.Google Scholar

ALI Study at 115.Google Scholar

ALI Study at 119.Google Scholar

See ALI Study, pp. 121-126. See generally Kornhauser, , “An Economic Analysis of the Choice Between Enterprise and Personal Liability for Accidents,” 70 Cal.L.Rev. 1345 (1982); Sykes, , “The Economics of Vicarious Liability,” 93 Yale L.J. 1231(1984).CrossRefGoogle Scholar

Physician profiling has become commonplace by insurers and providers to track provider behavior. See Emmons, David W., Wozniak, Gregory D., Otten, Robert D. and Baker, Neal A., “Data on Employee Physician Profiling,” 26 J.Health and Hosp. Law 73 (March 1993); see also Eichhorn, , Cooper, , Cullen, , Maier, , Phillip, and Seeman, , “Standards for Patient Monitoring During Anesthesia at Harvard Medical School,” 256 J.A.M.A. 1017 (1986).Google Scholar

The position of the American Medical Association's House of Delegates is summed up by Corlin, Richard, MD: “One proposal Clinton's made that is absolutely nonnegotiable is enterprise liability, which means if you work for an HMO and get sued, you could get fired. This will lead to a firestorm like nothing they've ever seen. If they want a doctor strike, this is the best way to do it.” American Medical News 7 (May 17, 1993) 165; ALI Study at 118.Google Scholar