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Medical Liability Reporter #2

Patient May Pursue Claim For Administrative Negligence Against Physician Responsible For Implementing Hospital Policies

Physician Never Treated Patient
A federal district court in Kansas has allowed an infant whose jaundice allegedly was not properly treated to proceed with a claim against a physician who never treated the infant but was responsible for establishing hospital policies for the treatment of newborn infants.

Plaintiff’s filed a malpractice action against a hospital and two doctors, alleging that their newborn son suffered severe injuries as a result of negligence in failing to detect and treat jaundice at the hospital where he was born. The plaintiffs later filed a motion for leave to amend their complaint to add a claim against a third physician who never treated the child but was responsible for formulating policies regarding the treatment of newborn infants at the hospital. The proposed new claim alleged negligence in failing to recommend or implement policies and procedures or educate hospital personnel regarding jaundice and hyperbilirubinemia in infants. The defendants opposed the motion, arguing that the proposed amendment of the complaint would be futile because no physician-patient relationship existed between the family and the physician who was accused of administrative negligence.

The court granted the plaintiffs’ motion, finding that defendants had failed to demonstrate that the proposed amendment to the complaint would be futile. The court acknowledged that no liability for malpractice may be imposed in the absence of a physician-patient relationship, but observed that plaintiffs framed their proposed claim as one for general negligence based on the physician’s undertaking of an administrative duty to maintain policies for the hospital’s newborn infant unit. The court noted that plaintiffs based their claim on Restatement (Second) of Torts 324A, which recognizes a cause of action for negligence against one who undertakes to render services that are necessary for the protection of a third party. Finding no Kansas case law that either recognized or rejected a claim for administrative negligence against a physician who oversees a hospital department, the court concluded that – at least at the pleading stage – there was a possibility that the plaintiff could state a viable claim. – Deya v. Hiawatha Hospital Association, Inc., No. 10-cv-2263 (D. Kan. May 4, 2011).