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10/01/2007 FIRST DISTRICT AFFIRMS VIABILITY OF NEGLIGENT CREDENTIALING AS A CAUSE OF ACTION AGAINST HOSPITALS By: Alicia Brumbach Perrone, J.D. The Illinois Supreme Court first recognized that a hospital could be held liable for institutional negligence in 1965, in the case of Darling v. Charleston Community Memorial Hosp., 33 Ill. 2d 326, 331 (1965). The Darling Court held that hospitals have an independent duty “to review and supervise the treatment of their patients that is administrative or managerial in character.” See Advincula v. United Blood Svcs., 176 Ill.2d 1, 28 (2000). To fulfill this duty, a hospital must act as a reasonably careful hospital would under the same circumstances. Id. at 29. Since the Darling decision, numerous cases have been decided based on the principle of institutional negligence. See e.g. Fox v. Cohen, 84 Ill. App. 3d 744, 750 (1st Dist. 1980)(hospital could be held liable for failure to use reasonable care in maintaining medical records); Johnson v. St. Bernard Hospital, 79 Ill. App. 3d 709, 718 (1st. Dist. 1979)(hospital had a duty to assist staff physicians in obtaining consultations from other staff members). The First District relied on Darling when it held that a hospital had a duty to establish reasonable by-laws for the credentialing of its physicians. Andrews v. Northwestern Memorial Hospital, 184 Ill. App. 3d 486, 494 (1st Dist. 1989). Until recently, however, neither the Appellate Court nor the Supreme Court had specifically addressed whether a hospital could be held liable for negligently failing to follow its own credentialing by-laws. That changed with the First District’s decision in Frigo v. Silver Cross Hosp., 2007 WL 2141822 (Ill. App., 1st Dist. July 26, 2007). The Frigo plaintiff sued podiatrist Dr. Paul Kirchner and Silver Cross Hospital and Medical Center (“Silver Cross”) in connection with complications following bunion surgery. Plaintiff initially sought recovery from Silver Cross on an agency theory and on the general allegation that it improperly maintained and managed the hospital. She later filed an amended complaint adding a claim that Silver Cross negligently granted Dr. Kirchner credentials to perform the procedure that injured her despite the fact that Dr. Kirchner did not qualify for those credentials under the hospital’s own by-laws. Dr. Kirchner settled out of the suit, and Plaintiff proceeded to trial against Silver Cross. The jury found in favor of Plaintiff and against the hospital, awarding Plaintiff over $7 million in damages. Silver Cross raised several arguments on appeal, but it did not contest the viability of “negligent credentialing” as a cause of action. The Appellate Court nevertheless addressed that issue sua sponte. The Court held that Silver Cross had a duty to act as a reasonably careful hospital would with regard to the credentialing of its physicians. It relied both on the general principles of institutional negligence as discussed in Darling and on the fact that several other jurisdictions have recognized negligent credentialing as an independent cause of action against hospitals, including Wisconsin, Florida, Maine, Pennsylvania, Connecticut and Texas. The Court also relied on cases from those foreign jurisdictions in outlining the requirements of a negligent credentialing claim. It found that a Plaintiff can prevail on a negligent credentialing claim with evidence that: 1) the hospital failed to meet the standard of reasonable care in selection of the physician it granted privileges; 2) while practicing pursuant to negligently granted medical staff privileges, that physician breached the standard of care; and 3) the negligent granting of privileges was a proximate cause of the plaintiff’s injuries. The Court noted that expert testimony as to the applicable standard of care and what may constitute a violation of that standard is generally required in negligent credentialing. Notably, it also indicated that “evidence that the hospital complied with the requirements of the [Joint Commission on the Accreditation of Healthcare Organizations] may be sufficient to support entry of summary judgment for the hospital.” -------------------------------------------------------------------------------------------------------------------- Return to Previous Page |
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