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| Wrona DuBois, P.L.L.C.

If you’ve been injured as a result of  the negligence of hospital employees, the hospital is still liable under a legal doctrine known as respondeat superior. It means an employer is responsible for the wrongful acts and omissions of employees.

When you go to a hospital, you may be treated by a variety of employees, such as nurses, technicians and other staff members. Most doctors working in hospitals today, however, are not employees, but are independent contractors. They work for themselves, but are granted permission by the hospital to practice medicine there. If a doctor commits malpractice, the hospital itself is not usually liable for the physician’s negligence.

When a hospital considers whether or not to grant privileges to a doctor, it uses a process called “credentialing.” Hospitals have their own credentialing process through which they screen the qualifications of physicians before deciding to grant privileges. In general, it involves seeking references from peers, ensuring that physicians have the medical degrees that they claim, and checking their backgrounds for malpractice suits and other types of complaints. If a hospital errs in its credentialing process, and extends privileges to an unqualified physician, the hospital can be liable for negligent credentialing.

In 2010, the Utah Supreme Court recognized that injured patients had a right to seek relief from hospitals for negligent credentialing (see Archuleta v. St. Mark’s Hospital, 2009 UT 36, 238 P.3d 1044).

The legislature responded the following year by enacting Utah Code. § 78B-3-425, which stated that negligent credentialing “is not recognized as a cause of action.

In 2013, the Utah Supreme Court determined that § 78B-3-425 was a prospective, substantive change in the law, and thus did not apply retroactively (see Waddoups v. Noorda, 2013 UT 64, 321 P.3d 1108).

The statute, however, remains “on the books.”

This can create challenges for injured patients and families who are harmed by a physician to whom the hospital should not have granted privileges.

Although the issue of whether or not the statutory proscription of negligent credentialing claims is valid, the Utah State Constitution offers a possible solution.

The statutory proscription on negligent credentialing “abrogates a cause of action existing at the time of its enactment,” and therefore violates Art. I, Sec. 11 (the Open Courts Clause) of the Utah Constitution. Accordingly, the statute could be held to be void and unenforceable.

The intersection of medical malpractice cases and state constitutional law raises a number of interesting legal issues that are likely to be addressed by higher courts in the near future.

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