Senator Adams R-Layton has sponsored SB150.  It aims to grant immunity to hospitals who knowingly hire bad doctors and then hide that fact from patients.

A little background might help.  Traditionally, employers have always been liable for the negligence of their employees.  If a UPS delivery truck gets in a crash due to the negligence of the driver, both the driver and UPS are liable.

In order to escape liability for the negligence of doctors, many hospitals have decided not to hire doctors as employees.  Instead, they hire them as independent contractors.  The law for independent contractors is different.  The law for independent contractors is that the company who hires the independent contractor is only liable for the negligence of the contractor if the company doing the hiring had reason to know that the contractor was dangerous.  In that event, both the contractor and the hiring company are liable for the negligence of the contractor.

Under this long standing law, hospitals have always been liable when they knowingly hire bad doctors.  For short, many people call this negligent credentialing.  In fact, many Utah cases have been tried and won under that legal theory in the past.

Recently, St. Mark’s hospital decided to challenge that long standing law.  The hospital claimed that the legislature had abolished liability of hospitals for knowingly hiring bad doctors.

In May 2010, the Utah Supreme Court published its opinion on the case.  Here is a link to that opinion.  The Supreme Court divided its decision into three sections.  They were entitled:

“I.  THE PLAIN LANGUAGENT OF UTAH CODE SECTION 58-13-5 DOES DOES NOT BAR NEGLIGENT CREDENTIALING CLAIMS”

“II. THE PLAIN LANGUAGE OF UTAH CODE SECTION 58-13-4 DOES NOT BAR NEGLIGENT CREDENTIALING CLAIMS”

“III. THE PLAIN LANGUAGE OF UTAH CODE SECTION 26-25-1 DOES NOT BAR NEGLIGENT CREDENTIALING CLAIMS”

Now comes the deception.  In an article in City Weekly, Senator Adams is quoted as saying, “I think this is a clear case of [the courts] legislating from the bench” and then added that health care will increase because hospitals will be forced to buy additional insurance that they weren’t required to purchase before the May 2010 decision.

That is an outright deception.  The Supreme Court did not legislate from the bench.  It did not create a new cause of action in Utah.  It merely recognized a long standing rule of law and analyzed whether the legislature had abolished it.  The Supreme Court determined that no legislation had been passed to immunize hospitals for knowingly hiring bad doctors.

This brings us to the final issue.  Should hospitals be immunized for knowingly hiring bad doctors?

 Dave Gessel, vice president of government affairs for the Utah Hospital Association, claims that hospitals need immunity.  He claims that many hospitals have no choice but to hire doctors that they know are not safe.  If they aren’t hired, some people might not be able to get medical care.

I disagree.  Hospitals shoudl not be given immunity for hiring bad doctors.  It’s hard to drive around town without seeing an ad about how great the medical care is at some hospital.  If the shortage of good doctors is so acute that hospitals are forced to hire dangerous doctors, those ads are an outright lie.

Under the current law, a hospital can protect itself from liability by disclosing to patients that it has hired dangerous doctors and give details on why the doctor is dangerous.  The patient can then choose whether to seek medical care at that hospital or choose a different hospital.  If the patient chooses to seek care from the bad doctor, the hospital is off the hook.

I think that is a better alternative than allowing hospitals to advertise that their care is excellent and then grant them immunity for hiring dangerous doctors.