Rachel and Choo Hospital Choo Choo's Liability

The fact that Rachel was initially discharged from the emergency department following examination by a physician with nothing more than a prescription for pain medication when she was in fact suffering form a very serious blood infection could definitely leave Choo Hospital exposed to litigation. There are several key elements of this case, as briefly as it has been described, that lead to this potential exposure to liability and tortuous action. First, the emergency room physician is expected to provide a certain level of care in his diagnosis, and if it was reasonable to foresee a more serious underlying problem of the general pain the patient presented with, the physician (and by extension the hospital) could be liable for failing to make proper recommendations and determinations. Second, then, a determination must be made as to whether or not the blood infection that was the underlying cause of pain could have been reasonably foreseen by the physician, and if this would have led to a different course of care and potentially a different outcome.

Because the physician took a full and detailed medical history of the patient when she was admitted to the emergency department, including specifically noting the boil and the botched lancing job that was later identified as the cause of the blood infection, this diagnosis was definitely foreseeable. The risk presented to the patient by having this go undiagnosed and untreated was likely substantial. All of this exposes Choo Hospital to a definite legal liability.

Additional Information Needed

A full determination of the potential liability fro Choo Hospital in this scenario cannot be made without knowledge of certain additional factors. While it is likely that a certain level of liability exists, there are certain facts that could possibly mitigate the potential damages of this liability, and that could even limit the scope of the exposure or eliminate it altogether. If there were other aspects of the patient's medical history that obscured the possibility of the blood infection or provided other more likely causes for the pain the patient was presented with, and/or if the blood infection was very rare and not easily or cheaply diagnosed, it could be that it would be considered acceptable by medical experts to have provided the pain medication prescription and discharged the patient just as the attending physician in the emergency department did. This would likely not eliminate the potential for a tortuous action, but would certainly shift the scenario towards a more favorable outcome.

Other factors that could affect Choo Hospital's liability in this case include the hospital's status as a non-profit, government operated, or private entity, as some blanket protections are provided in the first two cases. Knowledge of the ultimate outcome of the case, any actual medical damages inflicted on the patient as a result of the prolonged time before diagnosis and treatment, and knowledge of the specifics of the contract and relationship between the hospital and the physician would also be necessary in order to make a full determination of the hospital's exposure. It is highly likely that the hospital has some liability however.

Administrative Steps to Minimize Risk

While there is no way for a medical organization to provide services to patients without taking on some measure of liability for the care provided, there are many things that administrators at Choo Hospital could do to limit the exposure to liability and risk of the organization in this case. First and foremost, of course, establishing appropriate procedures for medical staff and programs that help to ensure compliance with these procedures will ensure that mistakes and actions that create greater risks and liabilities simply do not happen, and that the standard of care legally required is met or exceeded in the majority of cases. In order to truly limit liability, however, administrators need to take steps to ensure that when such mistakes and actions do occur, the hospital is not unduly exposed.

One way to accomplish this is through establishing an arbitration clause in all patient-hospital contracts, which generally requires that malpractice cases are heard by fair and objective arbitrators, often with medical expertise, rather than in standard civil courts where cases are heard and determined by judges and/or juries. This can limit the overall risk by tending towards more balanced and informed decisions, limiting damages awarded to those more directly attributable to the case and with a sometimes more appropriate concept of reasonableness and how foreseeable a given diagnosis/event/outcome was. Administrators can also ensure that ongoing care for this patient is provided for, so as to limit any potential further...

This enforceability -- and the lack thereof -- has many implications for the relationship between these two entities and the environment in which they are operating. While on the surface this provision is rather simple, it has many far-reaching implications and effects that are placed under direct and explicit legal control.
Contract language could be inserted that establishes the law of a certain region must govern a contract regardless of where contracted services or payments are actually performed, and this could potentially extend the enforceability of this provision into other regions, although this would be risking reversal on judicial review. Such enforceability would increase consistency and improve BCBST's forecasting and planning abilities, as well as providing easier means of controlling costs and revenue streams to ensure an appropriate balance is reached. Even if the provision cannot be enforced in all areas, other contracts could be (and in fact would need to be) put into place to determine pricing structures, and other means of achieving competitive or advantageous prices could be inserted that would be enforceable in these regions. The unenforceable language could be considered invalid on its face if it is not something the parties can legally agree to in the first place, which could potentially put both BCBST and Jones in more advantageous bargaining positions.

In fact, one of the downsides to the consistency and planning advantages of enforceability is the limiting factor this contract clause places on competition. While managed care strives to control costs in a regular and predictable manner, it also attempts to make healthcare more cost effective (and more profitable) by paying out the lowest possible amount for services. While an enforceable price ceiling based on market rates might only seem to limit the upper amount BCBST would have to pay out and the upper amount Jones could charge, this agreement all but guarantees that Jones will charge BCBST the same as it charges other managed care entities/healthcare payers, eliminating the potential for BCBST or Jones to achieve more advantageous positions in specific areas. In some ways, this attempt at creating a certain measure of price fixing -- likely the reason the contractual provision is not enforceable in all states -- creates a problem the reverse of what such monopolistic/collusion practices usually lead to. Specialization is somewhat diminished in the areas where this provision is enforceable; should trends towards certain procedures be witnessed in BCBST patients, better rates for such services will be difficult to negotiate when rates are tied to market rates.

All in all, while the enforceability of this contract is ideal form a planning perspective, it is not conducive to competition and negotiations and thus is not conducive to promoting true cost effectiveness. On the other hand, it would decrease administrative costs, which would ostensibly reduce costs to the end payer (i.e. The patient). All of this must be considered when deliberating contract changes.

Jane Jones and Happy Valley Nursing Facility

Happy Valley Nursing Facility Operates a special residential Alzheimer's unit that includes a series of requirements above and beyond normal standards and measures of care, in accordance with the facility's licensing with the state of Tennessee. The fact that special requirements exist for the facility and this unit already increases the liability risk and exposure of Happy Valley Nursing Facility, as it increases the potential for error and makes the delineation of reasonably foreseeable actions, events, and outcomes far more explicit than it would be in many other settings. If part of the licensing requirements are that all patients/residents must receive three-and-a-half hours of direct care every day, as they were for Happy Valley Nursing Facility, then a very clear and explicit standard of care exists, making a case for negligence easily established should this requirement be breached. When patient Jane Jones was discovered to be missing from her bed one morning, there was clear negligence and thus liability exposure on the part of Happy Valley Nursing Facility based on this simple feature of the facility's licensing agreement with the state.

The Case for Negligence

When patient/resident Jane Jones was found, it was determined that she had spent the night outside, on…