The Washington Post published an article recently about a man who had practiced for years at a Maryland hospital as an OB/GYN physician.
The man used a fake name and Social Security number, and admitted to authorities that he used four Social Security numbers under three different names to apply for his medical license, medical certifications, and federal education loans for his children.
The phony doctor saw lots of patients, performed annual checkups, and even delivered babies. Once federal authorities uncovered his fraud, the man disappeared into thin air. Over 100 patients are part of a class-action lawsuit against the hospital who granted this man privileges to practice medicine at its facility.
Understandably, these patients are upset and distressed that the hospital did in an adequate background check on the imposter, allowing him to practice medicine there for five years. The hospital contends that the fake doctor’s licensure and experience appeared valid, based on what it described as several highly reliable agencies.
As a Houston, Texas medical malpractice attorney, this sad case brought to mind the terrible state of Texas law when it comes to holding hospitals accountable for the doctors that they allow to practice in their facilities.
When I meet with patients and family members regarding their concerns about poor medical care in a hospital, I explain how, under Texas law, doctors are not hospital employees. Under a bizarre Texas legal concept known as the corporate practice of medicine doctrine, hospitals are not allowed to employ doctors. Most of my clients react with surprise, considering hospital advertisements that seem to be everywhere emphasizing the quality and expertise of hospitals’ positions.
In the Lone Star State, a hospital only has legal responsibility—and very limited, almost non-existent responsibility, at that—for making the decision to allow a doctor to practice medicine at the hospital. This is a process called credentialing. The hospital’s decision to allow a physician to practice medicine at its facility is called a granting of staff privileges.
When a doctor applies for staff privileges, hospitals are required to verify medical licensure and work experience, and to check the National Practitioner Databank for any disciplinary or adverse actions taken against the doctor. Once a doctor starts working at the hospital, any quality of care issues are addressed by peer review committees. If a concern is validated by committee, then there should be an adverse action, in the form of a reduction, suspension, or termination of staff privileges, which is reported to the National Practitioner Databank.
This all sounds good on paper, but in reality it often does not happen. The Washington Post article is a good example. Another one is a case that I handled in the Plano, Texas area, where a hospital wanted to terminate a surgeon’s staff privileges, but instead decided to informally recommend him to another Dallas area hospital. Unfortunately, he went on to continue his pattern of poor care, leading to patient deaths and paralysis.
The type of judicial review that is happening in the Maryland case, where hundreds of patients are joining together in a class-action lawsuit against the hospital, is simply unavailable in Texas. Texas has two laws that protect hospitals from essentially any oversight concerning the manner in which they grant credentials or staff privileges to physicians.
The first law is one that makes the entire credentialing and peer review processes privileged and confidential. In the event that an anesthesiologist, surgeon, or other doctor has a pattern of poor care and outcomes, and the hospital knew about it, it will be virtually impossible for a medical malpractice plaintiff to obtain those documents from hospital credentialing or peer review committee records.
Concerning the second law, the Texas Supreme Court eliminated the legal cause of action for negligent credentialing. Negligent credentialing means that when deciding whether to allow a physician to practice at its facility, a hospital should use the same degree of care is any reasonable hospital would under the same or similar circumstances.
Attorneys from other states who refer cases to me are shocked to find out that in Texas, negligent credentialing no longer exists, and that the standard is now one of malice. In my opinion, it is virtually impossible to prove malicious credentialing. After all, it requires evidence of the hospital’s actual, subjective knowledge about credentialing or competency concerns about a physician that should have caused the hospital to prevent a physician from practicing at its facility. I consider it virtually impossible because the credentialing and peer review privileges make the hospital’s own records and documents unattainable.
We are here to help
These tough, hospital-and doctor-friendly laws illustrate the importance for injured patients and family members in Texas to hire an experienced medical malpractice lawyer to investigate and handle their cases. For free consultation about your potential medical negligence or wrongful death matter, call Painter Law Firm, in Houston, Texas, at 281-580-8800, for a free consultation about your potential case.
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Robert Painter is an experienced medical malpractice and wrongful death attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who frequently writes and speaks on topics related to health law and medical negligence. He is a former editor-in-chief of The Houston Lawyer magazine and serves on the editorial board of the Texas Bar Journal.
