November 6, 2013
Waddoups v. Noorda, — P.3d —, 2013 WL 5864481 (Utah 2013)
Three years ago, Utah’s Supreme Court held that hospitals can be sued in torts for negligently credentialing doctors: Archuleta v. St. Mark’s Hosp., 238 P.3d 1044 (Utah 2010). The legislature decided to abolish this precedent by a statutory provision, Utah Code section 78B–3–425, that reads as follows:
“Prohibition on cause of action for negligent credentialing. It is the policy of this state that the question of negligent credentialing, as applied to health care providers in malpractice suits, is not recognized as a cause of action.”
In a case decided last week, Waddoups v. Noorda, — P.3d —, 2013 WL 5864481 (Utah 2013), the Court ruled that this statute was substantive, rather than merely procedural or declaratory, and thus did not apply retroactively to claims that accrued prior to its enactment.
An interesting question here is whether an aggrieved patient can still sue the hospital for negligent supervision of a doctor who was not properly credentialed. My sense is that the patient would be able to file such a suit. The traditional common-law doctrine of corporate negligence imposes on hospitals “(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.” Welsh v. Bulger, 698 A.2d 581, 585 (Pa. 1997). For good or ill, Utah’s legislature repealed only the second item on that list.