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Emergency Medicine News:
doi: 10.1097/01.EEM.0000436448.10171.ef
At Your Defense

At Your Defense: Third-Party Liability: Hidden Risks Lurking in Your EM Practice

Reyes, Carlo MD, JD

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Dr. Reyes is the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital and Medical Center in Thousand Oaks, CA. He is also a clinical professor of pediatrics and emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO of healthelaw.com, which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.

It has happened to all of us. You are feeling good, making challenging diagnoses, humming with efficiency through your shift. You start feeling confident about your skills, and something happens that changes the way you diagnostically approach all your future patients: the missed aortic dissection presenting as anxiety or the peripheral vertigo that ended up being a vasculitis-induced non-aneurismal intracranial hemorrhage. These missed diagnoses seem so unforeseen to you, but hindsight is 20/20 to a plaintiff's expert.

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The same thing can happen in medical negligence theory. A physician may not be directly negligent in a patient's care, but may still be negligent in failing to warn of adverse effects of prescription medications that contribute to the harm of a non-patient. This so-called third-party liability is the idea that a patient's negligent, or even criminal, act that causes a non-patient's injury may create liability for the patient's physician.

Vicarious liability is the most familiar form of third-party liability — an employer is liable, not because of the employer's fault, but for an employee's negligent act committed within the course and scope of employment. Physician groups that employ physicians, scribes, and advanced practice providers are vicariously liable for their employees' negligent acts by virtue of the employment relationship. The plaintiff in Monahan v. Sorour, 26 Mass. L. Rptr. 455 (Mass. Super., 2009) was injured when her esophagus was perforated when the nurse anesthetist intubated in preparation for an appendectomy. The court held that the anesthesiology group was vicariously liable for the nurse anesthetist's negligence because the group, not the hospital, possessed the right to exercise direct control over the nurse anesthetist.

Courts may apply ostensible agency theory to find that a physician group is liable for a physician's negligent act if the group held out the physician as an employee and the injured patient reasonably relied on the notion that that the physician was an employee, even in states that ban the corporate practice of medicine (and the employment of physicians). Determining whether an independent contractor-physician is an employee of the physician group for purposes of vicarious liability is fact-dependent, and includes whether the physician group has the right to direct and control the physician's actions, whether the group trains and provides tools of the trade, and whether the parties believe that an employment relationship exists.

Take-home point: Employees and independent contractors of physician groups may confer liability under two different theories: vicarious liability and apparent agency theory.

Several new concepts in third-party liability are worth exploring, including negligent failure to warn patients not to drive on medications. Plaintiff attorneys are finding other ways to find physicians liable for the negligence of third parties. The plaintiff in Manley v. Sherer, 2013 WL 4039391 (Ind.) suffered permanent neurologic injuries in a motor vehicle crash negligently driven by Dr. Sherer's patient, who was under the influence of medications that Dr. Sherer prescribed. The driver settled for an undisclosed amount.

The plaintiff filed a subsequent action against Dr. Sherer and his medical group two years and four days after the date of the accident, claiming negligence for failure to warn the patient not to drive while on prescription medication. The trial court granted summary judgment in favor Dr. Sherer. The case was transferred to the Supreme Court of Indiana, which reversed the trial court's ruling, finding a material issue about whether the statute of limitation defense applied because the plaintiff may not have known on the date of the accident that a physician's failure to warn caused the patient to continue to take the prescribed medications and drive, which led to the incident.

Take-home point: Appropriate discharge instructions and physician documentation of patient counseling will demonstrate proper patient warning of prescription medication dangers.

Providers can also be liable for criminal act of third parties. The patient in B.R. ex rel. Jeffs v. West, 275 P.3d 228 (UT 2012) shot and killed his wife while on six psychiatric medications prescribed by a nurse practitioner. The patient pled guilty, but the surviving children, through a conservator, filed a negligence action against the nurse practitioner and her supervising physician. The district court granted the defendants' motion to dismiss based on their argument that a physician owes no duty of care to non-patients in which no doctor-patient relationship exists. The Supreme Court of Utah reversed, reasoning that even in the absence of a doctor-patient relationship with the injured plaintiff, a provider's wrongful act that causes injury creates a duty of care.

Physician organizations are becoming concerned about the expansion of third-party liability that will affect medical malpractice cases. The plaintiff in Cordova v. City of Los Angeles filed a wrongful death suit against the city after a fatal motor vehicle crash and a driver was arrested for vehicular manslaughter. The California Medical Association filed an amicus brief in the California Supreme Court, concerned that a ruling in favor of the plaintiff would allow medical malpractice plaintiffs to look for “deep pockets” and to sue health care providers and hospitals for injuries caused by criminal actors.

Take-home point: The criminal conduct of third parties might not foreclose a medical negligence action against providers, and attorneys and medical organizations can help determine the relevant factors that establish the true culpability in these cases.

Click and Connect! Access the links in EMN by reading this issue on our website or in our iPad app, both available on www.EM-News.com.

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* Hear Dr. Reyes' lectures at the ACEP Scientific Assembly: “Beware! The New Hotbed of Litigation,” on Tues., Oct. 15 at 10 a.m., and “Black Boxed Drugs We Still Use: What's the Risk?” Tues., Oct. 15 at 5 p.m.

* Read Dr. Reyes' past columns at http://bit.ly/ReyesAtYourDefense.

* Comments about this article? Write to EMN at emn@lww.com.

© 2013 by Lippincott Williams & Wilkins

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