By Anna Gurevich
On December 27, 2012, the Massachusetts Superior Court, Worcester recognized that a cause of action based on “negligent credentialing” could be brought against Massachusetts hospitals. In Rabelo v. Nasif et al., 30 Mass.L.Rptr. 547 (2012), the plaintiff, Julio Rabelo, sued defendants Ronald Nasif, M.D. (“Dr. Nasif”), Milford Regional Medical Center, Inc. (“Milford Regional”), and Parkway Orthopedics and Sports Medicine, Inc., for medical malpractice.[i] The plaintiff specifically alleged that Milford Regional negligently credentialed Dr. Nasif, and the hospital subsequently filed a motion to bifurcate and stay all discovery on that claim until the medical malpractice claim against Dr. Nasif was adjudicated. Ultimately, the court denied the defendant hospital’s motion to stay discovery on the negligent credentialing claim, and reserved for a decision by the trial judge the part of the hospital’s motion to bifurcate the negligent credentialing claim from the medical malpractice claim against the defendant doctor.
The court first noted that although Massachusetts had not explicitly recognized claims for negligent credentialing, it would recognize such an action where a hospital grants privileges to an unqualified physician, even though the physician is not an employee or agent of the hospital. In coming to this conclusion, the court drew a comparison to the recognized causes of action for negligent retention and negligent hiring.[ii] The court expressed that under those doctrines, many jurisdictions find that “liability exists on the part of the employer entirely independent of the employer’s liability under the principles of respondeat superior.”[iii] Specifically, the court noted that a special relationship between the employer and the customer may imply an employer’s duty to safeguard those customers from incompetent or dangerous employees.[iv] The court further noted that a key consideration in determining whether a special relationship exists is whether the defendant could reasonably foresee that it was expected to act affirmatively to protect the plaintiff from incompetent or dangerous employees, and that the failure to do so could reasonably cause harm to the plaintiff.[v] The court reasoned that because hospitals can reasonably foresee that they are expected to protect patients from incompetent or negligent surgeons, and that failure to do so will likely cause harm to the patients, the hospital is therefore bound by this special relationship.[vi] The court thus recognized a cause of action for negligent credentialing in the context of physicians with hospital privileges.
The court next deferred defendants’ request to bifurcate the trial with respect to the claim of negligent credentialing, noting that bifurcation is solely within the discretion of the trial judge.[vii] The court expressed that the law generally disfavors bifurcation, as it results in extended adjudication and greater expense to the litigants.[viii] The court did note that although in some cases there may be grounds for bifurcation where a party can show that adjudicating claims together might be prejudicial,[ix] Milford Regional did not make any such arguments for prejudice.[x]
Last, the court denied the part of Milford Regional’s motion to stay discovery on the negligent credentialing claim. First, the court noted that information relating to the hospital’s negligent credentialing of Dr. Nasif might be valuable to the plaintiff’s malpractice action against him. Second, the court held that discovery and admission of that information would not be prejudicial to the claim against the hospital.[xi] The court further noted that any information related to negligent credentialing would have been created before the occurrence of the event that formed the basis of the medical malpractice claim against Dr. Nasif.[xii] Thus, discovery on the negligent credentialing claim may in fact produce information prejudicial to Dr. Nasif in the underlying malpractice claim.
Anna Gurevich is a third year law student at the Boston University School of Law, where she is a writer on the American Journal of Law and Medicine. She received her undergraduate degree from New York University.
[i] Rabelo v. Nasif et al., 30 Mass.L.Rptr. 547 (2012). The claim additionally named two unknown defendants, John Doe and Jane Roe.
[ii] A claim for negligent hiring requires that the plaintiff allege (1) that the person whose action forms the basis of the complaint was an agent or employee of the defendant; (2) that the agent or employee came into contact with the public during the course of the employer’s business; (3) that the employer failed to use reasonable care in selecting, supervising, or retaining that agent or employee; and (4) that the failure to use such reasonable care proximately caused harm to the plaintiff. Rabelo v. Nasif et al., 30 Mass.L.Rptr. 547 (2012) (citing Limone v. United States, 497 F.Supp.2d 143, 233 (D.Mass. 2007)).
[iii] Rabelo, 30 Mass.L.Rptr. at 547 (citing Foster v. Loft, Inc., 26 Mass.App.Ct. 289, 290 (1988)).
[iv] Id. at 548.
[v] Id. (citing Coughlin v. Titus & Bean Graphics, Inc., 54 Mass.App.Ct. 633, 639 (2002)).
[vii] Id. (citing Dobos v. Driscoll, 404 Mass. 634, 645 (1989)).
[ix] In Shilling v. Humphrey, 916 N.E.2d 1029, 1036 (Ohio 2009), the court bifurcated the claims of negligent credentialing and medical malpractice where the defendant doctor argued that it would be prejudicial not to. Specifically, the doctor argued that any evidence related to past problems with his conduct that was admitted in the negligent credentialing claim against the defendant hospital might prejudice the doctor in the medical malpractice claim.
[x] Rabelo, 30 Mass.L.Rptr. at 548.
[xi] Id. at 549.
[xii] The court draws a parallel to staying discovery in unfair insurance settlement claims, where discovery is usually stayed to protect the claim-related work product of insurers from being admitted into the trial of the underlying claim (citing to Kai v. Kim-Son, Appeals Court No. 98-M-65 (Feb. 11, 1988)).