Healthcare Legal Issues

Yes. A hospital owes a duty of care to the clients, ensuring that the doctor attending to the patient is qualified to conduct a surgery before allowing the doctor the privilege of performing surgery in the facility. Failure to observe the “Joint Commission on Accreditation of Healthcare Organizations (JCAHO)” standards depicts some negligence since the hospital accepted being bound by the standards. Credentialing and re-credentialing at NMMMC were required to abide by JCAHO standards. NMMMC admits that the American Board of Orthopedic Surgery does not certify Dr. Follies to perform surgery because he failed the certification. The courts essentially apply the standards provided by JCAHO as negligence standards (Gamber, 2007).

Under the principle of hospital corporate liability, NMMMC, like any other hospital, has a non-delegable, direct duty to offer safe and up-to-standards care to all the patients. The duty is a non-product of principle-agent or master-servant relationship or hospital/healthcare tort liability founded on showing indirect liability since the hospital’s liability streams straight from the hospital to the patients. A duty of care means that the health care professionals within the hospital assume responsibility for their client’s care. Hence, once the clinician-patient relationship is created, there is a duty to care and act. The hospital is liable for any negligent omission to comply with the professional requirement. One of the professional requirements is the qualification to act. The hospital must ensure that all its professionals are qualified as per the law to act on the patients (Mitchell, Ploem, Chico, Ormondroyd, Hall, Wallace, & Kaye, 2017). Accreditation ensures that the physician meets particular undergraduate and graduate academic requirements to operate on a patient.


Health care standards and regulations such as those provided by the JCAHO are essential to enforce compliance and ensure safe health care for every citizen visiting a healthcare system. Local, state and federal regulatory agencies establish regulations and rules for the healthcare industry, including qualifications required to perform particular medical procedures, and their oversight is obligatory. The JCAHO accreditation is one of the requirements to perform a medication procedure and helps establish and reinforce hospital patient safety efforts. Accreditation communicates the hospital’s commitment to providing high-quality healthcare services (Frankel, Federico, Frush, Haraden, & Kaplan, 2013). Failure to comply with accreditation requirements sends a signal that the hospital does not care about the safety of its patients, and any person qualified or not can be allowed to perform a medical procedure, which is a sign of negligence.

NMMMC faces corporate negligence or liability because of the failure to credential Dr. Follies. Hospitals are accountable for negligent acts of staff physicians even if the doctor is an independent contractor. The majority of United States courts have held explicitly that hospitals have the duty to scrutinize, select, and maintain only qualified and competent doctors and nurses as members of their medical teams (McMullen & Howie, 2020). The courts have branded a failure by some hospitals to implement this duty with several terms such as institutional or corporate negligence, negligent selection and supervision, and negligent credentialing. The hospital is liable if an unqualified or incompetent physician injures the patient based on the liability doctrine. The liability, in this case, is not because of a negligent act of the doctor but because of the failure of the hospital to effectively perform the credentialing process (Bobinski, 2019). Hospital’s medical team composition is a privilege that many hospitals partake keenly and seriously.

After a doctor applies to be part of the medical staff, the hospital’s credentialing committee conduct an elaborate credentialing process often in three parts: (a) a comprehensive review of the doctor’s application, (b) independent proof of applicant’s veracity, and (c) a recommendation to the hospital’s governing board on the suitability of the physician to part of the hospital’s medical team (Cass, 2016). Credentialing a physician entails obtaining, evaluating, and verifying the applicant’s academic and professional qualification and proficiency to practice medicine in the hospital. Privileging, the process of determining the services the physician is mandated to conduct in the hospital, happens in concurrence with the credentialing process, often after the verification (Holley, 2016). Hospitals permit only accredited physicians to be part of the medicate team to guarantee patient safety and ensure that only qualified physicians are given the honour to practice medicine within the facility. Besides promoting quality care delivery, the credentialing process also safeguards the hospital against the liability of unqualified or incompetent physicians. It transfers the liability to the physician and the credentialing agency (Ryan, 2015). The hospital will have done its duty of ensuring that the recruited doctor is qualified and accredited as per the law and through agency recognized by law; hence the responsible agency is liable to explain how the physician passed the accreditation test.

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In a study, Heller (2017) noted that because of the recent tort law reforms and caps on medical negligence damages, plaintiffs are increasingly seeking compensations for injuries caused by hospitals’ medical staff. In most cases, plaintiffs succeed in their claims against the healthcare organizations for negligent credentialing. This has prompted most hospitals to carefully reexamine and restructure their credentialing procedures to evade liability due to negligence by one of the staff (Heller, 2017). Unfortunately, the slightest nonconformity to the acceptable credentialing standards is often adequate to initiate a colorable claim that will permit a lawsuit to progress (Flis, 2016). Either way, the hospital still loses even if the claim is unsuccessful because the resources utilized to defend against it are always considerable.

A landmark ruling on negligent credentialing case happened in Illinois Supreme Court 1965 in Darling v. Charleston Community Memorial Hospital. Darling sued the hospital for corporate negligence after an emergency physician at the hospital inappropriately fixed a cast on a patient’s broken leg, restricting circulation and leading to necrosis. The physician did not understand the current practice procedure to set a broken bone, but the hospital failed to question the physician’s knowledge on the same, causing the patient’s injuries. The physician also could not recall having studied any orthopedic practice textbook in medical school, and the hospital never bothered to examine his knowledge about fracture treatment (Brenner, Teo, & Bal, 2017). In a recent case, Johnson v. Misericordia Community Hospital, 1983, a physician at Wisconsin hospital botched a hip surgery, causing paralysisth to the patient. The patient sued both the staff and the hospital. The physician opted for an out-of-court settlement, which corporate negligence claim against the hospital remained in court, and the plaintiff won the case and was paid $315,000 (Cass, 2016). Negligent credentialing has proven an effective ground to sue a hospital for a claim if a physician’s act leads to injury because they are obligated by law to employ only qualified staff to be part of the medical team.  

Overall, a hospital owes a duty of care to every patient and should ensure that only qualified physicians are given the privilege to operate on the patient. Besides, people are not machines, and any error by the physician can cause permanent damage to the patients, hence the need to ensure that the physician understands their work meet the right qualification and is accredited to practice medicine. Otherwise, a hospital faces corporate negligence liability if the physician’s action causes an injury to the patient.


Bobinski, M. A. (2019). Law and Power in Health Care: Challenges to Physician Control. Buff. L. Rev.67, 595.

Brenner, L. H., Teo, W. Z., & Bal, B. S. (2017). Medicolegal Sidebar: Expanding Hospital Liability—The Concept of Willful Blindness. Clinical orthopaedics and related research475(5), 1315.