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Malpractice attorneys object to hospital protection bill

Published March 28, 2011 11:26 am

Malpractice • If guv signs legislation, facilities couldn't be sued for bad doctors.
This is an archived article that was published on sltrib.com in 2011, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

In the fall of 2005, weight- loss surgeon R. Chad Halverson allegedly pierced Tina Archuleta's bowel, causing stool to leak into her abdomen.

The Roy woman underwent seven surgeries to remove infected portions of her intestine, lost her job and racked up half a million dollars in medical bills, for which she sued to recoup from Halverson and St. Mark's Hospital where the initial procedure was performed.

As malpractice claims go, the lawsuit is unremarkable and might have escaped public attention. But it gave rise to a Utah Supreme Court ruling and legislation that, if signed by Gov. Gary Herbert, would spare hospitals from being sued for permitting problem doctors to practice at their facilities.



SB150 met with little debate, moving quickly through the Legislature with assurances from sponsoring Sen. Stuart Adams, R-Layton, that it would merely clarify existing state law and counter overreaching by "activist" judges. But personal injury lawyers say it's a game-changer that would have a chilling effect on malpractice claims and make Utah a mecca for cut-rate medicine.

"Utah is poised to join only four other states in the country that immunize hospitals for credentialing decisions, no matter how bad the decisions," said Charlie Thronson, an attorney and past president of the Utah Association for Justice, a nonprofit representing trial lawyers. "I don't think we want to become the dumping ground for doctors who can't get privileges any place else."

The governor is still reviewing the bill and hasn't indicated whether he supports it.

The measure likely wouldn't affect Archuleta's case, said her attorney Peter Summerill, of Ogden. But Summerill believes it's unconstitutional and weakens safeguards for patients.

Hospitals, like all employers, are liable for the actions of their employees, Summerill said. But most doctors are independent contractors and therefore solely responsible for any mistakes they make.

Hospitals do, however, have a gatekeeping role. "They hold the keys to the operating room and are obligated to make sure that the people who perform operations there are competent and qualified," Summerill said. The threat of negligent credentialing, he said, is the one tool patients have to ensure hospitals take that role seriously.

In Archuleta's case, St. Mark's overlooked at least four malpractice claims against Halverson, including one that named St. Mark's as co-defendant, said Summerill. "But they let him keep operating there."

Halverson declined to comment, referring questions to his lawyer who could not be reached Friday or Sunday.

He is still affiliated with St. Mark's, but has cut back on his practice and moved into semi-retirement, said hospital spokeswoman Audrey Glasby.

The hospital denied responsibility and sought to have claims against it dismissed, citing three state laws that protect those who furnish information for credentialing reviews, those who perform the reviews and "those who organize and sponsor" the review.

"To find people willing to evaluate their peers in an environment where they're not protected is virtually impossible to do," explained St. Mark's CEO Steve Bateman at a legislative hearing where he testified in favor of SB150. To get privileges at St. Mark's, doctors undergo three levels of review that looks "at everything from their creditworthiness and criminal behavior to their professional conduct at other hospitals," said Bateman.

Third District Judge Pat Brian agreed with St. Mark's reading of the law and dismissed Archuleta's negligent credentialing claim in 2008.

Archuleta appealed and the Utah Supreme Court reversed Brian's decision in a 3-2 ruling.

As a matter of common law, employers — including hospitals — are liable for the actions of their employees, the court ruled.

The decision didn't sit well with the Utah Hospital Association.

"The Supreme Court misread the law and basically legislated from the bench," said association vice president and legal counsel Dave Gessel. SB150 is an attempt, he said, "to go back to where we were for the last 25 years before the court intervened."

Thronson contends "cases have been brought for decades against hospitals for negligent credentialing. There have been settlements and jury verdicts. ... We're talking about patients who have been injured by physicians who are drug addicts and sexual predators."

One high-profile case in particular moved Sen. John Valentine, R-Orem, to vote against SB150.

In 2009, a Salem doctor was charged with trading drugs for sexual favors.

"This happened multiple times with multiple patients, which the hospital chose to ignore and credential him. He had no insurance and no assets and yet we had significant damages," Valentine said. "This bill will make it so that the only pocket you can look at is the doctor's."

Both the Senate and House, however, rejected Valentine's idea to cap liability instead.

"It's in the governor's hands now," Thronson said.

kstewart@sltrib.com —

The numbers

An estimated 44,000 to 200,000 people are killed in the U.S. because of medical errors.

Malpractice claims account for less than 1 percent of health care spending.

Of 96,000 civil lawsuits filed in Utah in 2008, 235 were malpractice claims.

Sources: Institute of Medicine of the National Academies, Utah Association of Justice

 

 

 

 

 

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