Two recent Tennessee Supreme Court cases could affect the way local hospitals handle their admissions procedures, said local attorney Barry Shanker of Bass, Berry & Sims PLC.

The cases allege medical negligence and malpractice by physician contractors and have been sent back to the trial courts. They might proceed to trial or be settled out of court.

The state’s high court said the hospitals involved had not done enough to let patients know the accused doctors were contractors instead of employees. Therefore the hospitals should be held accountable.

“This ruling ultimately is important because plaintiffs’ lawyers are trying to hold the hospitals liable for any type of negligence or malpractice by a physician and that imposes additional, essentially unknown, amounts of liability on the hospital,” Shanker said.

At most local hospitals, patients may sign a paper informing them of the relationship, but some may not even realize how important it is. And the basis of the hospital/physician relationship is vital in case something goes wrong and a lawsuit is filed later.

Non-employee pitfalls

One of the cases behind the need to make this distinction known is Marvin M. Boren v. Dr. Mark T. Weeks, et al.

The plaintiff sued Weeks, an emergency room physician at River Park Hospital in McMinnville, Tenn., as well as several other related entities for allegedly misdiagnosing a case of what turned out to be pulmonary emboli (multiple blockages of a patient’s pulmonary artery).

The McMinnville courts ruled that Boren, who was filing the suit on behalf of his dead wife, Dorothy, could not hold the hospital liable for Weeks’ actions.

The plaintiffs in Amanda Lynn Dewald v. HCA Health Services of Tennessee, et al, had the same outcome.

But when both cases went before the Supreme Court, the justices ruled that the hospitals had not done enough to limit their liability.

“Upon thorough consideration of the record and of the applicable law, we hold that summary judgment was inappropriate because genuine issues of material fact exist concerning whether the hospital may be held vicariously liable under an apparent agency theory, and in particular whether the hospital provided its patient with adequate notice that the emergency room physicians were independent contractors rather than employees,” the justices wrote.

Listening up

Ayoka Pond, communications specialist at Baptist Memorial Health Care Corp., said the legal team at the hospital and hospital administrators are paying attention.

“We are aware of (the cases),” she said. “We do give patients information (about the independent contractor status of some physicians) upon admission.”

Calls to Methodist Healthcare and the Regional Medical Center at Memphis were not returned by press time.

Though hospitals appear to be taking small measures to inform patients of the relationship, it soon could be necessary for health care attorneys like Shanker to advise their clients of some more obvious means of revealing the relationship.

Shanker said in some cases, the disclaimers were buried in hospital admissions forms.

“I would probably suggest hospitals do a number of things like post signs in waiting rooms and triage, and maybe even throughout the emergency department,” he said. “I’d also think you’d want to have a standalone separate page (in admission forms) that says the doctor is not an employee of the hospital and that the doctor is an independent contractor of the hospital.”

Shanker said it also would be wise to have a conversation with either the patient or patient’s representative specifying the relationship.

Another option is having the physicians wear badges that identify them as either hospital employees or independent contractors.

“The more the hospital can do to specifically identify the physician as an independent contractor the better,” said Shanker. “I think you’ve got to do it on a number of different levels.”