(Schelling v. Humphrey, Ohio Supreme Court Case No. 2009-Ohio-4175)
An ongoing Ohio issue has existed of whether a negligent credentialing claim can be pursued against a hospital without a prior finding that the plaintiff’s injury was caused by the negligence of a physician who had privileges at the hospital.1 Hospitals have taken the position that it is unfair to require them to (a) incur the cost of participating in the physician’s separate medical malpractice case; and (b) be subjected to the prejudice and confusion that often results when the jury considers the two separate claims at the same time.
In response to this argument, a number of Ohio courts have agreed to bifurcation (having the claims presented and considered separately) i.e., (a) did the physician act negligently/willfully resulting in harm to the plaintiff; and (b) if the answer to the first question is “yes,” did the hospital act negligently in credentialing the physician thereby permitting him to treat the patient. If the answer to the first question is “no,” then the case is dismissed in its entirety.
However, not all courts have agreed to bifurcate. Further, the courts have not always agreed on whether the negligent credentialing claim should be stayed until the medical malpractice claim is decided (under the theory that the negligent credentialing claim must be dismissed if the physician is found not to be negligent) or whether both claims should continue to go forward (under the theory that this is a more economical and judicial use of the court’s time).
By decision dated August 26, 2009, the Ohio Supreme Court recognized the appropriateness of bifurcation in a negligent credentialing claim as well as the obligation to establish that the physician harmed the patient before a claim for negligent credentialing can go forward. However, in its holding, based upon the “unusual circumstances of this case,” the Court permitted the plaintiff to go forward and attempt to prove the physician’s malpractice even though the physician was not (and would not be) a party to the lawsuit.
In Schelling, Mrs. Schelling2 brought a medical malpractice claim against Dr. Humphrey and a negligent credentialing claim against the Hospital for injuries she claimed she sustained as a result of surgeries performed at the Hospital by Dr. Humphrey. The Hospital moved to bifurcate the claims and to stay the negligent credentialing claim. The trial court agreed to bifurcate the claims, but denied the motion to stay. Dr. Humphrey then filed for bankruptcy ultimately resulting in a discharge of any further claim by the Schellings. There was no finding of negligence (or admission of negligence) on the part of Dr. Humphrey.
The trial court granted the Hospital’s motion to dismiss the negligent credentialing claim agreeing with the Hospital that an essential element of the claim – physician negligence resulting in patient harm – could not be established. The District Court of Appeals reversed, holding that the case could go forward and that the Schellings would have the burden of proving that Dr. Humphrey committed malpractice. The Ohio Supreme Court in a 4 to 3 decision written by Justice Cupp, affirmed, stating:
[I]n the usual case either a plaintiff must obtain a prior determination that a doctor committed medical malpractice and that the malpractice proximately caused the plaintiff’s injury, or the doctor will be a party to the case that includes the negligent-credentialing claim against the hospital. However, in the unusual circumstances of this case … plaintiffs, through no fault of their own, cannot maintain their malpractice claim against him. Therefore, the Schellings are permitted to pursue their negligent credentialing claim against the hospital.
Justice Stratton, in a dissenting opinion joined by Justices O’Donnell and Lanzinger, argued that the “unusual facts of this case” did not justify creating an exception and placing a burden, not authorized by law, upon the hospital to defend an action against a nonparty.
Although the exception in this particular case may prove extremely difficult for the Hospital, it is to be hoped that the “unusual facts of this case” will not create future loopholes in what is otherwise a Court decision that, for the first time, clearly recognizes that (a) generally, the prior establishment of physician negligence causing patient harm is a required element of a negligent credentialing claim; and (b) bifurcation is necessary to avoid unfair prejudice, jury confusion, and to further judicial economy (case termination if medical malpractice is not established).
Although the Court’s decision also supports an argument that the negligent credentialing claim should be stayed until the physician negligence claim has been decided, such a statement is not part of the Court’s decision.
This case is available at: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-4175.pdf.