State Appellate Court Reverses Jury Verdict Against Hospital for Negligent Credentialing Without Proof that the Physician was Unqualified

St. Luke’s Surgicenter-Lee’s Summit LLC appealed the circuit court’s judgment against St. Luke’s after a jury trial. The gist of the claim was for negligent credentialing. The claim had been brought by the plaintiff, Thomas E. Tharp and Paula M. Tharp, his wife. The jury found in favor of the Tharps and awarded damages. On appeal, the jury verdict was reversed by the Missouri Appellate Court.

“This case arises from a medical malpractice action against a surgeon operating out of St. Luke’s Surgicenter in Lee’s Summit, Mo. In December 2011, Thomas Tharp underwent a laparoscopic cholecystectomy — a surgical procedure to remove his gallbladder.”

The surgeon who handled the gallbladder removal applied for staff privileges at St. Luke’s in 2005 and renewed his privileges several times thereafter. Among other requirements, St. Luke’s required physicians applying for staff privileges to disclose whether they had ever been sued for professional malpractice and, if so, the number of lawsuits they had defended.

The evidence presented at this jury trial established that Tharp’s surgeon had defended more lawsuits at the time he operated on Tharp than he reported to St. Luke’s on his application.

Generally, modern hospitals staff their facilities with two classes of physicians: staff physicians who are hospital employees and independent physicians to whom the hospital grants staff privileges. Under this arrangement, the physicians working under staff privileges are typically independent contractors and not hospital employees.

The trend for allowing recovery against hospitals for injuries caused by independent physicians has begun to accelerate under the theory that “an employer is liable for an independent contractor’s negligence when the employer fails to exercise reasonable care in hiring a competent contractor. LeBlanc v. Research Belton Hospital, 278 S.W. 3d 201, 206 (Mo. App. 2008). . . .” In other jurisdictions, this theory of liability is called apparent authority, which means that a patient views a physician as being an employee of a hospital by appearance that is apparent to the patient such as the cloak, badge or name tag the doctor wears.

In this case, St. Luke’s argued that the evidence was insufficient to support a negligent credentialing claim because there was no evidence showing Tharp’s surgeon was incompetent to conduct the procedure he performed. Also, the hospital argued that credentialing the surgeon was not the proximate cause of Tharp’s injuries.

“This Court has never before considered the scope of the duty hospitals owe to their patients when deciding whether to grant staff privileges to a physician.” St. Luke’s owed a duty to its patients to credential only competent and careful physicians because it is foreseeable that incompetent or generally careless physicians could injure St. Luke’s patients.

The hospital, therefore, fulfills its duty by using reasonable care to credential competent and careful physicians. Accordingly, St. Luke’s did not breach its duty to the Tharps unless it chose not to use reasonable care to determine whether Tharp’s surgeon was qualified and therefore should be granted staff privileges. Hoover’s Dairy, 700 S.W.2d at 433.

The Tharps argued that St. Luke’s breached its duty by credentialing Tharp’s surgeon because the surgeon did not list all of the lawsuits he had defended over his career in his application for staff privileges as required by St. Luke’s bylaws. However, St. Luke’s failure to follow its bylaws is insufficient to show St. Luke’s breached its duty to credential competent and careful surgeons. Even though the surgeon did not list every lawsuit he had defended in his career, there was no evidence showing he was unqualified due to the number of lawsuits the surgeon had defended.

The Tharps presented evidence that St. Luke’s deviated from its bylaws, but there was no evidence showing St. Luke’s credentialed an unqualified surgeon. The record is devoid of any evidence that Tharp’s surgeon lacked the knowledge, skill, and experience necessary to operate on patients like Tharp “without creating unreasonable risk of injury.”

Because the hospital’s duty to its patients is to credential competent and careful physicians, a hospital’s act of credentialing a physician is not the proximate cause of the patient’s injuries unless the injuries are a consequence of receiving treatment from an unqualified physician. Accordingly, the plaintiff cannot establish a causation element of a negligent credentialing claim unless there is evidence showing the patient’s injuries were the natural and probable consequence of the surgeon’s general incompetence or carelessness.

For these and other reasons, the jury’s verdict — based on negligent credentialing without proof that the physician was not qualified — was reversed.

Tharp v. St. Luke’s Surgicenter-Lee’s Summit, LLC, No. SC 96528, 2019 WL 925542 (Mo. Banc, Feb. 26, 2019).

Kreisman Law Offices has been handling medical malpractice lawsuits, birth trauma injury cases, hospital negligence lawsuits and wrongful death cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Riverside, Melrose Park, Oak Park, Villa Park, Lombard, Bensenville, Glenview, Northfield, Wheeling, Riverwoods, Lincolnshire, Highwood, Wilmette, Bloomingdale, Geneva, Streamwood, Franklin Park, Burbank, Oak Lawn, Chicago (South Side, Roseland, East Side, South Chicago, Hyde Park, Little Village, Lower West Side, Chinatown, West Town, Wicker Park, Humboldt Park, Pilsen, Portage Park, Albany Park, Austin, Mont Clare, North Lawndale, Brighton Park, Archer Heights), Brookfield, LaGrange Park, North Riverside, Western Springs, Burr Ridge, Hickory Hills, Palos Heights, Crestwood, Midlothian, Blue Island and Calumet Park, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.