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Hospital can be sued for ‘credentialing’ physician

A hospital could be sued for its alleged negligence in granting a physician credentials to practice medicine at the facility, a Superior Court judge in Worcester, Mass., has ruled.

The defendant hospital argued that there is no common law or statutory cause of action in Massachusetts “sounding in negligent credentialing” and that discovery should be stayed pending resolution of a separate malpractice claim against the co-defendant doctor.

But Judge John S. Ferrara disagreed, diverging from a recent decision by a Suffolk Superior Court judge in a similar case involving the same physician, Dr. Ronald J. Nasif.

“It would be reasonable for [the plaintiff], or any other patient, to expect that a physician treating him at the hospital was competent and would comply with all requisite standards of care,” Ferrara wrote. “Thus, in this context at least, a ‘negligent credentialing’ claim appears cognizable under Massachusetts law.”

Ferrara also found that “the fact that there will be issues to resolve in discovery is not a reason to stay discovery in its entirety.”

The nine-page decision is Rabelo v. Nasif, et al.

‘Take it seriously’

Plaintiff’s counsel Steven H. Schafer of Needham and Boston said Ferrara’s ruling is the only decision he is aware of that both recognizes negligent credentialing as an allowable claim in Massachusetts and does not bifurcate the claim.

“We think it’s significant because, although the negligence of the doctor is clear, in a case like this the hospital has to be held responsible for credentialing and re-credentialing the negligent doctor,” said Schafer, who was joined by Matthew Andrade in representing the plaintiff. “Judge Ferrara reiterated that that is the law in Massachusetts.”

In permitting Nasif to see and treat patients, co-defendant Milford Regional Medical Center essentially endorsed him, Schafer said.

Elizabeth N. Mulvey, a medical-malpractice lawyer at Crowe & Mulvey in Boston, agreed.

“When patients choose doctors, they often rely on the hospital. I think they have a right to expect that a hospital will stand behind the doctors it chooses,” Mulvey said.

Both Schafer and Mulvey said the negligent credentialing claim has been slow to develop in Massachusetts. One reason is the state’s charitable immunity law, which, until recently, capped damages against non-profit hospitals at $20,000.

The cap has since been raised to $100,000. That move, combined with the fact that more for-profit hospitals are moving into Massachusetts, could make the claim more common, especially in light of Ferrara’s ruling.

“The cause of action will have more importance because of the financial reality of the situation,” Mulvey said.

Schafer said medical-malpractice lawyers would be wise not to overlook potential negligent credentialing claims in their cases.

“One of the basic tenets of tort law is obviously to obtain compensation for the [victim], but also to discourage bad behavior in the future,” he said. “It’s one thing to sue a doctor who is a bad actor and who repeatedly shows up in medical-malpractice cases. It’s another thing to go to the root of the problem. I would say to other plaintiffs’ lawyers not to overlook the remedial aspects of what we do and not to overlook holding a hospital responsible for the credentialing process.”

Schafer said he believes that, at many hospitals, credentialing has been a rubber-stamp process by boards of trustees.

“I think this decision says they have to take it seriously or end up in litigation like this,” he said.

Jeffrey W. Colman and John Faggiano, who practice at Hunter & Faggiano in Boston, represented the defendant hospital. They did not respond to messages seeking comment.

But medical-malpractice defense lawyer Judith Feinberg Albright of Nelson, Kinder & Mosseau said the decision is an overreach and could negatively impact the provision of health care in Massachusetts.

“The law should reflect change, and not, in the absence of core constitutional issues, create it,” the Boston lawyer wrote in an email. “The decision in Nasif creates a cause of action for ‘negligent credentialing’ predicated on a ‘special relationship’ between a credentialing entity (such as a hospital) and the general public.”

The expansion of tort law by the creation of special duties weakens the concept of tort itself, she said, creating an ever-expanding duty that ultimately acts as a curb on activity, rather than a curb on negligent conduct.

“Translated into the health care context, this expanding duty may discourage new clinics from opening and new physicians from being credentialed, contributing to an already critical shortage of primary care providers in underserved areas such as the Pioneer Valley,” Albright wrote.

Foot injury

According to the suit, the emergency department at Milford Regional Medical Center called Nasif, an orthopedic surgeon, to examine and treat plaintiff Julio Rabelo, who suffered a right foot injury in November 2008.

The plaintiff subsequently developed osteomyelitis in his foot and required amputation of his right big toe.

Milford Regional suspended Nasif’s privileges in May 2009, six months after the plaintiff’s injury. The Board of Registration in Medicine placed significant restrictions on Nasif’s license in December 2009 and June 2011, including prohibiting him from performing all types of surgical procedures.

The plaintiff alleged that Nasif was negligent, careless and unskillful in several ways and that Milford Regional “failed to exercise reasonable care in granting privileges to Nasif by failing to investigate and evaluate him.”

According to the plaintiff, Nasif “had failed board certification examinations; many claims of medical negligence had been asserted against him; he had a history and practice of inappropriate referrals; he had a history and practice of inadequate documentation in patient medical records; he had a history and practice of failing to perform appropriate and necessary diagnostic tests; he had a history and practice of performing unnecessary surgery; he had a history and practice of failed surgeries; and other factors called Dr. Nasif’s qualifications and abilities into question.”

The plaintiff filed suit in November 2011. The following January, Suffolk Superior Court Judge Paul E. Troy allowed a motion to bifurcate a negligent credentialing claim and stay discovery in Dejesus v. Nasif, et al., a case involving Nasif that is also being brought by Schafer.

Not a good alternative

Milford Regional cited Troy’s ruling in its motion to bifurcate plaintiff Rabelo’s negligent credentialing claim against the hospital and to stay discovery until there is an adjudication of the underlying medical-malpractice claim.

But Ferrara sided with the plaintiff, finding that “the alternative presents greater problems, such as the need to re-depose many of the same witnesses several years after the events at issue.”

As for the request to stay discovery, Ferrara ruled that information from the credentialing process conducted prior to the plaintiff’s surgery could prove prejudicial, but only to the underlying claim against Nasif, not the hospital, “and Dr. Nasif has raised no objection of his own.”

Ferrara further noted “that while the tort of ‘negligent credentialing’ has not been explicitly recognized here as it has been in some thirty states, it has not been found invalid either.”

The judge said the claim is similar to a claim of negligent hiring or retention, which has been recognized as viable in Massachusetts, with the distinction being that doctors may not be employed by a hospital but merely approved to see and treat patients there.

“It may be that Dr. Nasif was not acting as an employee of the hospital, per se,” Ferrara wrote. “However, the comparative analysis of a negligent credentialing claim and a negligent hiring or credentialing claim still has force, because the duty of an employer to customers or clients is premised on a special relationship that may give rise to a common-law duty of the employer to safeguard patrons from an incompetent or dangerous employee.”

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