4Q 08 Newsletter by yantingting


									                                                                                                                          Four th Quar ter 2008

                            Physician Focus
                                                                                                                          Vol. IV • Issue 4

                                                                  Physicians Liability Insurance Company
                                                                  ...Service ...Stability ...Stewardship

                                                                                              sh    ip
                                                                                                               Se r vice                      Stabilit
                                                                                     L eade r                                                              y
                      C ommun
 Integrit y

Are You the
Captain of the Ship?
by Kevin Driskill, Driskill Law Firm
   In my practice, I have often seen plaintiff’s    acts because the employee’s acts were done in
attorneys argue that a physician is the “cap-       furtherance of the grocery store’s business. In
tain of the ship” in an effort to hold a physi-     applying the doctrine of vicarious liability to
cian liable for a nurse’s or other hospital staff   the practice of medicine, the Supreme Court of
member’s negligence. This argument is usually       Oklahoma has held that a physician was liable
raised by plaintiff’s attorneys in the context      for his nurse-employee’s failure to keep an            Insurance Corner:
of a claim arising from a surgery, although the     accurate count of the surgical sponges placed          PLICO Introduces the 360º
argument has been raised in other instances,        in the patient during surgery, thus causing the
                                                                                                           Exposure Review (ER) to
such as a physician’s management of a woman         patient to retain a surgical sponge after sur-
in labor. Plaintiff’s attorneys argue that under    gery. Aderhold v. Stewart, 1935 OK 479, 46             Oklahoma Doctors
the captain of the ship doctrine, a physician       P.2d 1301. In modern practice, it is relatively           Some have described it as a risk check
is responsible for the negligence of a nurse or     uncommon for the operating room personnel              up. When was the last time you had yours?
staff member solely because the physician is        to be employees of the surgeon. Therefore,                By utilizing the 360° ER, many physi-
present in the operating room or involved in        physicians will not have vicarious liability for       cians are discovering that they have unin-
the management of the patient when the neg-         the acts of the nurses or staff members in             sured exposures involving risks not
ligence occurred. However, the Supreme Court        the operating room for such things as sponge           associated with their medical professional
of Oklahoma has never upheld the captain of         counts, transferring of a patient into and out         liability.
the ship doctrine. Thus, a physician cannot be      of the operating room, sterility of equipment,            Since it’s introduction in early 2008, the
held liable for a nurse’s or staff member’s neg-    and the like. However, should a physician              360° ER has revealed uninsured medical
ligence merely because the physician was in         have an employed physician’s assistant, nurse          offices, under insured medical equipment,
the operating room or managing the patient’s        practitioner, or scrub tech with the physician         overlapping coverage, inadequate limits,
care when the negligence occurred. However,         at surgery, the physician would be responsible         expired policies, and more.
there are fact specific situations where a          for the acts of that employee.                            Your 360° ER begins with reviewing your
physician may be deemed as a matter of law to          The second doctrine for which a physi-              current coverage and the risks associ-
be “supervising” ancillary medical personnel        cian can be held liable for a nurse’s or staff         ated with your practice or organization.
including a physician’s assistant or a certified    member’s negligence is the loaned servant              Lawsuits, unpaid claims and loss of your
registered nurse anesthetist.                       doctrine. Under the loaned servant doctrine,           assets is a difficult way to learn about your
   Even though the captain of the ship doc-         the loaned servant is not the employee of              coverage.
trine is not in force in Oklahoma, a physician      the physician. Instead, courts look to the                Your review includes: Medical Profes-
may still be held liable for the negligence of a    amount of control, direction, and supervision          sional Liability, General Liability, Workers’
nurse or staff member under two other legal         the physician exercises over the nurse or staff        Compensation, Employee Benefits, Busi-
doctrines. The first doctrine is the doctrine of    member. If the physician exercises a sufficient        ness Personal Property, Building Coverage,
vicarious liability. The doctrine of vicarious      amount of control, direction, and supervision          Employment Practices Liability, Business
liability states that an employer is responsible    over the nurse or staff member, the nurse or           Income Interruption, Directors and Of-
for the negligent acts of the employee when         staff member is deemed to be the employee              ficers Liability, and more.
those negligent acts are committed in further-      of the physician for the time that the control,           Join other Oklahoma physicians who
ance of the employer’s business. As an exam-        direction, and supervision is exercised over           have closed gaps in coverage and dis-
ple, say that an employee of a grocery store in-    the nurse or staff member. The determina-              covered cost effective risk management
jured a customer while negligently restocking       tion of whether a nurse or staff member is             strategies.
a shelf. In that case, the grocery store would                                                                To schedule your 360° Exposure Review,
be liable to the customer for the employee’s        Continued on page 2                                    contact Scott Fikes at (405) 443-2024.
page 2

                                                   Stabilit y
S    er                                                                                                                               Stewar

Continued from page 1

the loaned servant of the physician depends        hold physicians liable for the negligence of a
on the facts of each case. Therefore, there are    certified registered nurse anesthetist (“CRNA”)
no safe harbor rules which, if followed, would     regardless of whether any relationship existed
prevent the physician from having the nurse        between the physician and the CRNA. The
or staff member deemed a loaned servant. As        licensing statutes for CRNA’s require that         actions of the CRNA. I would note that the
for an example of what constitutes a loaned        a CRNA practice under the direction of a           Supreme Court of Oklahoma has not decided
servant, the Supreme Court of Oklahoma             “supervising physician.” “A certified registered   this issue. Thus, whether the Supreme Court
found that a physician was liable for burns to     nurse anesthetist, under the supervision           of Oklahoma would agree with this position is
a patient from heated water bottles where the      of a medical doctor, osteopathic physician,        an open question and the recent decisions of
physician personally placed the water bottles      pediatric physician or dentist licensed in this    the Court on medical malpractice cases have
next to the patient, ordered that the bottles      state, and under conditions in which timely,       not been particularly favorable.
be at a certain temperature, ordered that the      on-site consultation by such medical doctor,          As a matter of professional practice, it
nurses leave the bottles until otherwise in-       osteopathic physician or dentist is available,     makes little sense to hold a surgeon respon-
structed, and was present during the time the      shall be authorized, pursuant to rules adopted     sible for the acts of a CRNA when that surgeon
bottles were on the patient. Randolph v. Okla.     by the Oklahoma Board of Nursing, to order,        is not the CRNA’s supervising physician.
City Gen. Hosp., 1937 OK 313, 71 P.2d 607.         select, obtain and administer legend drugs,        Since the surgeon is focused on the patient’s
                                                   Schedules II through V controlled substances,      surgery, the surgeon is not in a position to
  …the Supreme Court                               devices, and medical gases only when engaged       supervise the actions of the CRNA or monitor
                                                   in pre-anesthetic preparation and evaluation;      the patient’s response to the anesthetic medi-
  of Oklahoma has never                            anesthesia induction, maintenance and emer-        cations. More importantly, the surgeon lacks
                                                   gence; and post-anesthesia care. A certified       the requisite training and expertise to address
  upheld the captain of                            registered nurse anesthetist may order, select,    anesthesia issues and supervise a CRNA. How-
  the ship doctrine.                               obtain and administer drugs only during the
                                                   peri-operative or peri-obstetrical period.” 59
                                                                                                      ever, there is a concern that the Court may,
                                                                                                      as a matter of law, deem the physician in the
However, a surgeon was not liable for any neg-     O.S. § 567.13a (10)(b). Plaintiff’s attorneys      operating room to be the CRNA’s “supervising
ligence that resulted after the surgeon left the   argue that the surgeon present at the time         physician.”
operating room, Flower Hospital v. Hart, 1936      of surgery is the supervising physician. The          In my opinion, the public policy should be
OK 459, 62 P.2d 1248, or for the negligent acts    term “supervising physician” is a defined term     that a physician not be held liable for a nurse’s
of nurses in preparing the patient for surgery,    in the Oklahoma statutes. A “supervising           or other staff member’s negligence merely
McCowen v. Sisters of the Most Precious Blood      physician” is the licensed physician who has       because the physician was in the room when
of Enid, 1953 OK 37, 253 P.2d 830. Basi-           formally accepted the responsibility for the       the negligence occurred. The “bright line” rule
cally, in determining whether a nurse or staff     health care services rendered by the CRNA.         should be that in order for the physician to be
member is a loaned servant of the physician,       See 59 O.S. § 567.3a(11)(12). A surgeon’s          held responsible for the acts of a nurse or staff
courts look to whether the physician directed      mere presence in the operating room, without       member, such staff member must be found
the actions and supervised the conduct of the      more, should not make the surgeon the              to be the employee or loaned servant of the
nurse or staff member to such an extent that       CRNA’s “supervising physician” under the           physician. Without such a showing, the physi-
the physician should have been capable of          statute since the surgeon has not agreed to        cian should not liable for the negligent acts of
preventing the negligent conduct.                  accept this role for the CRNA. Therefore, the      such others. Whether that reasoning will be
   Plaintiff’s attorneys have also sought to       surgeon should not have responsibility for the     adopted by the Court has yet to be decided.
                                                                                                                                           page 3


                                                               week                   of the


                                                        The situation in the following case is controversial and remains an ongoing policy and pro-
                                                      cess issue that requires thought and discussion within the healthcare community. We invite
                                                      any comments and/or questions that it provokes.

                                                                                                         Transfusion Causes

True or
                                                                                                         Blood Incompatibility
                                                                                                            A 13-year-old girl was hospitalized

                                                                                                         after a car accident in which she sustained
                                                                                                         intraabdominal hemorrhage. Although
                                                                                                         her blood was type A-Rh negative, she
                                                                                                         was transfused with two units of A-Rh
                                                                                                         positive packed cells. Nine hours after
  After being made aware of the transfusion                                                              the transfusion, the blood bank director
error, the surgeon did not competently man-                                                              became aware of the error and notified
age the clinical situation because he:                                                                   the attending surgeon. Appropriate
Should have known that the patient’s progeny                                                             intervention within 72 hours might have
were at risk.                   True or False                                                            minimized sensitization. Because he did
                                                                                                         not want to face the overwrought parents
Had a professional relationship with the later
                                                      with the news of a medical error, the surgeon rationalized that the risk would not materialize
born child.                      True or False
                                                      and did not inform the patient or her parents.
Had a professional relationship with the later          Consequently, the patient did not learn of the sensitization until 10 years later during
born child’s mother.              True or False       routine blood testing during pregnancy. Despite intrauterine transfusion and preterm
Did not therapeutically intervene to prevent          induction of labor, her newborn had a severe blood incompatibility resulting from the
sensitization.                    True or False       sensitization of his mother’s blood and sustained permanent central nervous system damage.
   General principle drawn from your analy-           The patient sued, including a claim against the surgeon for concealment of the error that
sis of this case:                                     prevented the patient and her family from taking steps to avoid the injury to the later
A physician cannot be liable to a person who          conceived child.
is injured by a physician’s substandard care
unless that treatment occurs after the person’s
conception.                        True or False

See Correct Answers on page 4

                           Physician Focus
                           Volume IV, Issue 4 Physician Focus is published by Physicians Liability Insurance company
                           226 Dean A. McGee Ave., suite 200, P.o. Box 1838, oklahoma city, oklahoma 73101

                           For the latest PLICO news and information visit us at www.plico-ok.com.
page 4

                       week  of the
                                                                                                         Where early therapeutic
                                                                                                         response could prevent subsequent
                                                      Continued from page 3                              injuries, a physician who does
Transfusion Causes Blood Incompatibility                                   The surgeon knew, or          not disclose his/her medical error
After being made aware of the transfusion error, the surgeon did not    should have known, that          may be liable for the foreseeable
competently manage the clinical situation because he:                   an Rh-positive baby could        injuries resulting from the failure
                                                    Correct Answer      encounter incompatibility        of disclosure.
                                                                        problems as a result of the
  Should have known that the patient’s progeny were at risk.            transfusion administered to his mother. It was reasonably foreseeable
                                                 True                   at the time of this blood transfusion that a teenage patient might later
                                                                        bear a child who would be injured by the incompatible blood. Because
  Had a professional relationship with the later born child.            the patient and her other physicians were not informed of the erroneous
                                                    False               transfusion, no treatment was undertaken to prevent Rh sensitization.
                                                                        Further, even had the mother been sensitized, she could have ascertained
  Had a professional relationship with the later born child’s mother.   her spouse’s blood type and opted for insemination with an Rh-negative
                                                    True                donor. Although the blood bank error occurred before the child’s
                                                                        conception, the surgeon could be liable to the later born child because
  Did not therapeutically intervene to prevent sensitization.           failure to disclose the error foreclosed timely clinical intervention.
                                                                        About ELM
General principle drawn from your analysis of this case:                  ELM Exchange, Inc. is a leading provider of online, case-based risk
  A physician cannot be liable to a person who is injured by a physi-   management and patient safety education. ELM courseware is currently
  cian’s substandard care unless that treatment occurs after the per-   used in healthcare organizations nationwide including New York
  son’s conception.                                 False               Presbyterian, The Johns Hopkins Hospital, Clarian Health Risk Retention
                                                                        Group, University of Texas System, Sutter Health and Evanston-
                                                                        Northwestern Healthcare. For more information about ELM or a full
                                                                        course demonstration, please e-mail info@elmexchange.com.

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