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Hospital Avoids Medical Malpractice Lawsuit By Posting Hallway Notice

When you go to a hospital for treatment, is the hospital liable if something goes wrong? Not necessarily. Many of the physicians who work at a hospital are not employees, but rather “independent contractors” with medical privileges. Georgia law allows hospitals to escape liability for the medical malpractice of these independent contractor physicians if certain conditions are met.

A recent decision by the Georgia Court of Appeals helps illustrate the problem. The victim in this case had a “previous cardiac history” and was admitted to Emory-Adventist Hospital on New Year’s Eve of 2005. He complained of “chest pain, shortness of breath, and urinary difficulties.” The attending physician in the emergency department treated him. Two days later, however, the victim died of a heart attack.

Two years later, the victim’s widow sued the hospital, the attending physician and several other parties. The hospital argued it was not a proper party to the lawsuit because the attending physician was an independent contractor, not a hospital employee. In fact, the attending physician worked for Cobb Medical Associates, LLC.

Georgia tort law states a hospital is not responsible “for the acts or omissions of a health care professional unless there exists an actual agency or employment relationship between the hospital and the health care professional.” In order to take advantage of this safe harbor, the hospital must “conspicuously” post a notice in a “public area” informing patients that the doctors who treat them may not be hospital employees.

Emory-Adventist Hospital said it posted the required notice. Before the trial court, EAH introduced an affidavit signed by the hospital’s construction supervisor, who said he personally posted the notice on a wall “outside of the trauma room as you walk into the” emergency room. The plaintiff claimed this was still “not visible from any public area of the hospital.” Neither the trial court nor the court of appeals, however, found the plaintiff’s evidence sufficient to create a legitimate issue of fact. The hospital prevailed on summary judgment.

The Victim’s Widow Runs Into Additional Procedural Barriers

The plaintiff asked the Georgia Supreme Court to consider whether the notification law was itself constitutional. The high court refused, however, because the plaintiff never raised the issue before the trial judge. Similarly, in its recent opinion upholding the summary judgment, the court of appeals declined to revisit the question. (It’s unclear from the court of appeals opinion what exactly the constitutional claims are.)

To add a final insult to injury, the plaintiff attempted to add Cobb Medical Associates, the attending physician’s actual employer, to the lawsuit as a defendant, only to be thwarted by Georgia’s statute of limitations. In medical malpractice cases, a plaintiff must file suit within two years of the alleged injury. The plaintiff initially sued EAH and the physician just days before the two-year deadline. The motion to add Cobb came nearly a year after that. The plaintiff attempted to argue that Cobb still had “actual notice” of the suit before the two-year deadline, but neither the trial court nor the court of appeals agreed.