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President v. Jenkins2/6/2003
(Ind. Ct. App. 1978), cert. denied, 444 U.S. 930, 100 S. Ct. 273, 62 L. Ed. 2d 187 (1979).
It is one thing to say that hospitals should have the right to determine the qualifications of its staff members and to impose conditions on physicians with admitting privileges. It is quite another thing to say, as plaintiff argues here, that such a right, which inures to the hospital's benefit, gives rise to a corresponding duty on the part of hospitals to monitor and enforce the physician's compliance with such requirements for the benefit of patients that the physician admits to the institution.
The by-laws of St. Barnabas impose no such duty on the hospital. Rather, they require physicians with medical staff appointment to furnish proof of professional liability insurance coverage not less than $1,000,000/$3,000,000, and further to notify the hospital if such insurance is canceled or otherwise allowed to lapse. As noted, although Jenkins provided St. Barnabas with proof of insurance on January 31, 1997 for a coverage period indicated through January 1998, he admittedly never advised the hospital that his policy had been canceled for non-payment of premium effective October 26, 1997.
The point is that St. Barnabas' by-laws clearly placed the burden of compliance on the shoulders on those uniquely situated and in a superior position - the physicians - as a rightful condition for initial appointment and continuing privileges. For obvious reasons, the hospital assumed no concomitant affirmative responsibility for monitoring the level of physician compliance, confirming the insurance coverage as represented, verifying that no cancellation or lapse has occurred, or ensuring that its staff and admitting physicians continue to make timely premium payments on an ongoing basis.
Indeed, the record is devoid of proof of any proactive steps taken by St. Barnabas on behalf of its patients from which it can be inferred that the hospital owes a duty of reasonable care to patrons to implement its by-laws properly, much less to protect them from physicians without malpractice insurance who admit them through its doors. Cf. Maussner v. Atlantic City Country Club, Inc., 299 N.J. Super. 535, 553 (App. Div. 1997). Simply put, in the absence of an obligation to act, investigate, or "check-up" on its physicians, there is no voluntarily-assumed duty.
Nor does such a duty arise from the common law. While a hospital may be liable vicariously for the negligence of a staff physician, Corleto v. Shore Mem'l Hosp., 138 N.J. Super. 302, 306 (Law Div. 1975), and directly for its selection and appointment of an unqualified, unskilled or incompetent physician, id. at 308-09; Darling v. Charleston Cmty. Mem'l Hosp., 211 N.E.2d 253 (Ill. 1965), cert. denied, 383 U.S. 946, 86 S. Ct. 1204, 16 L. Ed. 2d 209 (1966); Jack W. Shaw, Jr., Annotation, Hospital's Liability for Negligence in Selection or Appointment of Staff Physician or Surgeon, 51 A.L.R.3d 981 (1973), tort liability has never been extended to encompass a duty running from hospital to patient as formulated by plaintiff here, namely to ensure that physicians with mere admitting privileges have malpractice insurance. The only two cases we have discovered that relied on such a theory of liability involved a situation where the hospital granted staff privileges to a doctor knowing he had no medical malpractice insurance and was otherwise not financially responsible under a state law mandating financial responsibility as a condition of a physician's ability to maintain staff privileges at a hospital. Robert v. Paschall, 767 So. 2d 1227 (Fla. Dist. Ct. App. 2000), review denied, 785 So. 2d 1187 (Fla. 2001); Baker v. Tenet Healthsys. Hosps., Inc., 7
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