Saturday, November 13, 2010

Increasing Recovery-Keep the Hospital in the Case

How to Increase Recovery in

Your Medical Malpractice Cases:

Keep the Hospital in the Case

Medical malpractice cases obviously require clinical review and lawyers realize that they must employ

medical experts to review their cases. Often overlooked is the use of a hospital

administration expert who can add significantly to the case by looking at the corporate responsibilities

of the hospital. Adding this type of expert to your team provides the opportunity to increase your recovery

by including the mandated insured capacity of the hospital in the case. In addition, the hospital always

has an interest in the results of the case and can provide leverage on the involved physicians as the case

moves forward. Adverse publicity, as well as potential financial losses, are both extremely important to

hospital leadership. The attorney can best determine the hospital’s responsibility through employing an

experienced hospital administrator to evaluate the case.

The administrative expert relies on the physician experts to determine if clinical errors were made

and utilizes this information to determine what hospital policies and licensure and accreditation standards

were violated as well. A seasoned hospital administrator will review the appropriate Joint Commission

on Accreditation of Health Care Organizations (JCAHO) manual to evaluate the degree of compliance of

the hospital with the standards For example, in a recent case where a

wrong site surgery took place, I was able to determine that the hospital did not follow the required JCAHO

standards for identifying the patient and the surgery site, nor did they perform the required time-out

procedure prior to starting the operation. Hospital employees could have and should have made certain

that the surgeon follow the correct procedures and the entire incident would have been avoided. Clearly,

in this case, corporate negligence took place and the hospital was certainly a party to the case. Ultimately,

this case had a much higher recovery then it would have if only the surgeon was pursued.

Another important review performed by the administrative expert is to look at hospital policies

And procedures. This evaluation includes determining if the hospital has the required policies in place,

and then ascertaining if they actually followed them. A recent case I reviewed looked at policies regarding

handling of critical test results and it became apparent that the hospital neither had a policy in place as they

should have nor did they follow the required procedures when a radiology examination showed a life

threatening situation for an emergency department patient . Again, the hospital had committed a violation

of accreditation standards and had liability in the matter.

I am frequently asked to review the credentialing procedures of hospitals to evaluate if they

complied with the appropriate standards. This is another often overlooked area of investigation as the

hospital has strict standards they must follow in credentialing and re-credentialing physicians and other

independent practitioners, and in determining their privileges. It is very common to find that steps were

skipped as the processes very often become rote as hospital staff perform this important task. I look at

such things as the composition of the credentials committee to see if the appropriate clinical specialist is

involved in evaluating the applicant physician, did they collect all the required original documentation,

and did they truly follow their own credentialing policies.

A particular area of interest is that of new procedures. Did the hospital actually approve the new

procedure or new piece of instrumentation used in the procedure? Were hospital staff trained in the new

procedure? Did the materials management department purchase the instrument per their policy or did the

surgeon bring it in? Were the surgeon’s privileges expanded to include this new procedure? It is amazing

to see how many times the hospital does not do this correctly and then finds the physician is involved in a

malpractice case.

Utilizing a hospital administrative expert can strengthen the case. The hospital, through its board and

management, has significant impact on the quality of care delivered by its medical and nursing staff and

the ability to reduce medical errors by holding staff accountable to their policies and standards. Reviewing

this should take place in most medical malpractice cases and can benefit and improve patient care for all, as

well as providing an additional and large source of funds for the patient who was injured.

For many attorneys, the JCAHO standards are unfamiliar and a hospital administrative expert can assist

them in navigating these voluminous and sometimes confusing standards. I would also note that an

administrator can often assist in the strategy of the case through explaining the inner workings of the

hospital, the internal politics of medical staff relationships, and the rules regarding the use of independent

contractors. It is usually best to bring the administrative expert into the case as early as possible to help

determine what is asked for in discovery and also in the types of questions to ask hospital representatives in

the deposition process.

Add a hospital administrative expert to your team and strengthen your case and increase your recovery for

your clients!

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