Medical Negligence
Addressing Am bulatoy Health Care Negligence
:ian appointment and credentials review hnctions. The credentials review process includes not only clinical competence, but the broader aspect of professional competence because a broad range of factors impact health care delivery by physicians. First and foremost, credentials review is performed to protect the public from substandard physicians and health care practitioners. Hospital and ambulatory care center standards require a mechanism to ensure that individuals provide services only within the scope of their privileges. There is scant appellate authority in Oklahoma regarding ambulatory care center liability. Hospital credentialing law would appear to be applicable in the ambulatory care center setting based on industry practices and industry standards. The Oklahoma Supreme Court adopted the theory of hospital corporate negligence in Strubhart v. Perry Memorial Hospital Trust Authority, 1995 OK 10,903 P.2d 263. In Strubhart, a baby was allowed to bleed to death after a negligent forceps delivery. Over the ยง 2404 objection of the Defendants, Plaintiffwas permitted to introduce at trial testimony about previous episodes of conduct by Dr. Seal which included failures to transfer patients to other facilities, leaving surgery or breaking scrub, failures to appear on time at the hospital, failures to prescribe antibiotics for an infection, and failures to report sexual abuse of children. Strubhart, 903 P.2d at 267-68. The Court ruled that such testimony was admissible, not to show the tendencies of the Defendant, but to show that the hospital knew or should have known of the poor performance record. Strubhart, 903 P.2d at 272-74: In our view, testimony about a doctor's prior conduct is admissible ifthe hospital, through its personnel, knows or should know with the exercise of ordinary care of the prior conduct, and the prior conduct of the doctor is such that a hospital exercising ordinary care would take some steps to either monitor or discipline the doctor . . . such episodes or information of prior conduct might include the fact the doctor has previously been sued for malpractice or experienced untoward results in prior cases . . . admissibility of such evidence can be analogized to the situation where a person is sued for negligently entrusting an automobile to a reckless or incompetent driver. . . . Stnibhart, 903 P.2d at 273. The Court in Strubhart held that there is a, "general duty of hospitals to exercise ordinary care and attention for the safety of their patients," (Strubhart,903 P.2d at 27576) which places an obligation on the part of the hospital to monitor doctors:
[A] hospital may satisfy the duty to the patient by taking lesser steps than total or full termination of staff privileges. Such steps may include limitations or restrictions on the staff privileges in regard to certain medical procedures. The duty might also be satisfied by requiring some type of oversight of the physician in certain situations or by requiring consultation with other physicians. Strubhart, 903 P.2d at 277.
L. Mark Bonner
Health care services are increasingly provided without the patient being admitted to the traditional hospital setting. Ambulatory care centers include ambulatory surgery centers, birthing centers, cancer centers, cardiac catheterization units, dialysis centers, MRI and CT centers, freestanding clinics, and freestanding urgent and emergency care centers. Services of ambulatory care centers, hospital outpatient departments, physicians' offices and home health care services fall under the ambulatory care heading provided that the patient remains at the facility less than 24 hours. The growth in ambulatory care is driven by a number of forces, primarily financial in consideration. Insurance companies favor ambulatory care because it reduces hospital bills generated by overnight hospital stays. Some doctors prefer to provide outpatient procedures in the setting of a clinic because it gives them more convenience and control. However, the savings to the insurance company and the convenience to the doctor come at a price. The patient is left to fend for himself or herself; when in the past, the patient would be monitored by trained nurses at the hospital during a recuperative period. Predictably, injuries occur as a result. According to the data collected by the Department of Veterans Affairs, ambulatory care procedures generate about 12% of negligence claims. Given the substantial number of claims generated by the ambulatory care process, and the continuing growth of the ambulatory care industry, questions about ambulatory care centers' duties arise. Hospitals and clinics play a central role in patient safety through their physi20 Third Quarter
The Court intended to prohibit hospitals from removing themselves from the oversight of physician credentialing: We believe failing to impose the above outlined duty on hospitals is to allow hospitals the ability to bury their heads in the sand in the face of known incompetents and to put in the hands of incompetent physicians the tools by which severe injury may be caused. Strubhart. 903 P.2d at 278.
Provision of services in an ambulatory care setting adds another dimension of liability in a medical negligence case beyond that for negligent credentialing. Ambulatory care centers are accredited by the Joint Commission on Accreditation of Healthcare Organizations pursuant to the standards articulated in the Comprehensive Accreditation Manual for Ambulatory Care (CAMAC). In Oklahoma, a national standard of care state, the standards of the preeminent national organization on the accreditation of healthcare organizations carry particular relevance. CAMAC provides standards for management of human resources, which identifies and provides that an adequate number of qualified, competent staff should be available to meet the needs of patients. CAMAC, however, goes beyond credentialing requirements to specify stan,dards for the assessment of patients, care of patients, and continuum of patient care, among other things. The following standards are typical of the CAMAC standards:
TX. 1 The patient care provided is appropriate to the patients' needs and severity of disease, condition, impairment, or disability. TX.2 Each patient's anesthesia care is planned. TX.2.2 Patients who have received anesthesia are discharged in the company of a responsible, designated adult. TX.3.4 Preparing and dispensing medication(s) adhere to law, regulation, licensure, and professional standards of practice. TX.5.2 Before obtaining informed consent, the risks, benefits, and potential complications associated with the procedure(s) are discussed with the patient and family. Thus, the CAMAC standards place significant obligations on the ambulatory care center not only to make a reasonable inquiry before credentialing a physician,
but also to take steps to insure the provision of an acceptable level of medical care to the patient. Ambulatory care centers may be tempted to deny that JCAHO standards apply to them, but it would be difficult to argue against such basic standards as those listed above. Further, the CAMAC standards are scored on a five level scoring system. Systematic failure to follow a standard would be classified at the lowest level of scoring. By arguing that the CAMAC standards do not apply, the ambulatory care center would be admitting that it would score in the lowest 20% of all ambulatory care centers if evaluated by JCAHO, the premier accreditation organization in the nation. In conclusion, ambulatory care procedures are likely to continue to increase in number. The number of negligence claims will increase commensurately. Accordingly, ambulatory care centers should be scrutinized to determine if they have violated their standard of care as the case is investigated.