With the increased litigation against short- or long-term care facilities and hospitals relative to the care and treatment rendered to elderly patients, there is an associated increase in litigation against physicians specializing in geriatric and palliative care medicine, as well as physicians who provide consultations to this population. So why and how are physicians brought into a lawsuit?
A common scenario is when an elderly patient, who previously resided in the community, is brought to the hospital for an acute ailment and, at discharge, is assessed as requiring either short- or long-term inpatient care. In many cases, these patients may have existing pressure ulcers and suffer from multiple comorbidities that place them at risk for further skin breakdown (e.g. nutritional deficits, vascular disease, immobility, diabetes, etc.). Often, an attending physician who has managed the patient’s general medical care during a hospital admission, refers and/or admits the patient to a short- or long-term nursing facility to which he or she is affiliated. With this, the attending physician may provide the nursing facility with discharge instructions, providing recommendations and/or orders for, among other things, nutrition (particularly if a PEG tube is in place), wound care, antibiotic therapy, etc. Under this scenario, the expectation of the family (and, thereafter, their attorneys) may be that the attending physician will continue to manage the patient at the nursing facility as he/she is most familiar with the patient and her/his various comorbidities due to the continuity of care that has been provided at the hospital and nursing facility. This may be, however, an unrealistic expectation, as certain interventions, in practice, are managed by other disciplines at the nursing facility, such as the nursing staff or consultants.
Conversely, an attending physician managing the patient’s care at a nursing facility may also manage the patient’s care during a hospitalization. Often, the attending physician at nursing facilities will have privileges at a hospital where a resident is transferred. In those situations, the care rendered to the patient at both the nursing facility and hospital may be an issue in the case and, thus, the physicians face potential exposure in these cases.
Similarly, consulting physicians are often included in such litigation. Throughout a resident’s admission to a nursing facility, various consultations are often obtained (podiatrist, wound care specialist, vascular surgeons, etc.). These physicians often provide care directly related to claims asserted against the nursing facilities and as such, face potential exposure in such cases.
In many cases, the plaintiff initiates the case directly against the nursing facility/hospital and the attending physician. In some cases, the plaintiff only commences an action as against the nursing facility/hospital under the belief that the attending physician or consulting physician is an employee of the facility. However, discovery often reveals that the attending or consulting physician at the nursing facility/hospital is not an employee. If the statute of limitations has expired, the plaintiff may be precluded from bringing an action against the attending or consulting physician. Notably, however, the expiration of the statute of limitations does not preclude the nursing facility/hospital from commencing a third-party action against the attending or consulting physician. In many situations, the nursing facility will still be vicariously liable for the physicians and, therefore, the initiation of a third-party action as against the physician is primarily to limit its exposure by engaging additional insurance coverage. In the case of a third-party action commenced against a physician by a defendant nursing facility, the plaintiff would not have any direct claims against the physician. The only potential exposure to the physician would be in the event that a finding of liability was made as against the nursing facility.
Rosaleen T. McCrory and Yuko A. Nakahara are Partners at Martin Clearwater & Bell LLP where they focus their practices on the defense of medical and nursing home malpractice matters from inception through trial. For more information, visit mcblaw.com.