The types of negligence that can lead to patient harm in the hospital setting cover most of the medical malpractice spectrum, from physician malpractice to nursing malpractice to malpractice by a physical or occupational therapist. Hospital administration itself can also be liable when a patient's condition is made worse by failure to maintain a reasonably safe environment.
While many health care providers who work in hospitals are independent contractors i. Because the hospital is liable for the negligence of its employees, a patient harmed by the medical malpractice of an employee doctor or other health care professional would be entitled to sue both the hospital and the individual employee. Physicians are more often not hospital employees but independent contractors who work at but not for the hospital, so some investigation may be necessary more on this below.
There are many tasks that nurses perform related to a patient's treatment, and if the nurse's conduct falls below the applicable medical standard of care , a malpractice claim might be possible. Any one of these mistakes can constitute negligence. If the nurse is an employee of the hospital, the nurse's negligence is extended to the hospital. Therapists—whether they be physical , occupational, or mental health therapists — can also be negligent.
For example, a physical therapist might fail to follow a physician's instructions properly, or might manipulate a patient's injured limb too aggressively, re-breaking a bone or re-tearing a ligament or tendon that the patient was supposed to be rehabilitating. What if the negligent doctor, nurse, or therapist was an independent contractor and not an employee of the hospital?
Is the hospital still vicariously liable for that health care provider's negligence? This is a complicated issue that depends on your state's law, but in general the courts will look at factors like:.
As a general rule, the more control that an employer has over the performance of a supposedly independent contractor, the more likely it is that a court might find that the independent contractor was actually an employee. These actions are termed ultra vires and do not bind the corporation. If the actions harm anyone, the board members themselves may be sued and held individually liable for damages.
The second situation involves certain transactions that, while not illegal or specifically forbidden by the corporation rules, are not in the interests of the corporation. This does not apply to simple, bad business decisions; it usually involves a director or trustee abusing a duty to the corporation by making a deal that is personally rewarding at the expense of the corporation. Board members may be held personally liable if they neglect their duty to the corporation. An example of this would be a refusal to dismiss a staff member whom the board knows to be guilty of severe misconduct.
The hospital would be liable for the misconduct, and the board members could be sued individually for dereliction of their duty to supervise the hospital operations. While most cases involve personal knowledge of the wrongdoing, the law may hold the board members liable if they should have known of the wrongdoing. This prevents the board from avoiding liability by not inquiring into potential misconduct.
When the hospital corporation is first formed, all of the rights and duties of the corporation are vested in the board. The board may then delegate certain duties to employee or medical staff committees. Board chairs who work effectively with committees keep up-to-date on their activities and are available as a sounding board. The board of trustees is the governing body of the hospital. The board guides the long-term goals and policies for the hospital by making strategic plans and decisions.
As part of their oversight duties, the board of trustees sets the job description for the CEO and is responsible for hiring, firing and monitoring the CEO. The board typically sets clear goals and expectations for the CEO, in keeping with strategic planning. Trustees assist and support the CEO with input about management policies, procedures and decisions.
Upper management, along with human resources, is responsible for hiring hospital staff. Board trustees oversee the employee credentialing process, making sure healthcare professionals have the proper training, licensing and accreditation. The board is also responsible for making sure that processes are in place to discover any history of disciplinary action by prospective employees and to ensure that they have the proper level of malpractice insurance.
They must also make sure that the hospital makes the best use of the resources it has. Board trustees need to stay abreast of the latest in industry news and best practices. Hospital boards must engage in self-regulation by performing regular self-evaluations on themselves, their peers and the whole board. Trustees typically find it necessary to continually educate themselves on healthcare trends by subscribing to magazines like Trustee.
As in many other industries, the role of the company secretary is evolving into one of primary importance. In fact, some governance experts favor a title change from Secretary to Chief Governance Officer.
Many hospitals are lagging behind the times, marginalizing the secretary and deeming them as little more than a note-taker and file clerk. With major changes in governance taking place, company secretaries are the prime people to champion governance expertise for their boards. Company secretaries work closely with the board chair and the CEO when recruiting, electing or appointing new board members.
They also assist the board chair with recruiting and selecting committee chairs and committee members. The secretary often serves as the committee chair for the governance committee. Secretaries also take on much of the responsibility for orienting board members and arranging mentors and continuing education for them. As needed, the company secretary also helps the board perform self-evaluations.
The secretary also takes a primary role in working with the board chair to address dysfunctional or non-participatory board trustees. The secretary works with the board chair to set and distribute agendas and board packets prior to board meetings. In addition to these important duties, the secretary assists the board chair in fulfilling his or her responsibilities.
Hospitals have not historically appointed anyone to fill the role of General Counsel. When hospitals needed legal advice or representation in the past, they typically hired outside firms after the board identified a prospective or pending legal matter. First, the healthcare arena is becoming increasingly litigious, which has led to the need for healthcare reform.
Second, the fall of the financial industry is promoting governance changes. Hospitals are feeling the impact of increasingly stringent regulatory constraints. As a result, many hospitals now employ robust legal teams, headed up by the General Counsel.
The General Counsel may act alone, but usually oversees a team of attorneys. Hospitals no longer generally have one or two general law attorneys.
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