By Lawrence Landskroner

Suppose you were told that butchers, architects, coal miners, and makers of cars couldn't be sued and couldn't be burdened with a judgment. You would say, "That's ridiculous." Yet, every lawyer today knows he must advise his client in case of medical misadventure that doctors and hospitals are almost immune from recovery for their mistakes and misadventures.

Traditionally, hospitals have been viewed as hotels or innkeepers who provided a place for a doctor to treat his patients. If a doctor wasn't hired by a hospital he was considered to be independent and because of that the hospital wouldn't be responsible for any acts of negligence committed by the doctor.

We have discovered over passage of time the routine hospital supplies like gloves, syringes, antibacterial scrubs, and surgical sponges have implicate in death and injuries such as paralysis, anaphylactic shock, cranial nerve damage, cancer, contact dermatitis, and life threatening infections. We know further that good investigation will sometimes find that diagnostic tools should be suspected in medical injuries. The conclusions and recommendations of four scientists in a study of doctor-caused illness illuminate these dangers.

Another are of hospital responsibility is that it is important that all those using or caring for equipment in a hospital be trained in the safe use of the equipment. This is especially true in areas where unusual precautions must be taken against electrical shock. Failure of implants and prosthese have frequently resulted in patient injury, primarily where there has been negligent manufacture and failure to test and inspect as well defective design. Medical machinery-fetal monitors, anesthesia delivery systems and incubators-provide further examples of unsafe design, sale, and supply resulting injury. In addition to the aforementioned there is a substantial source of devastating injuries from negligently and defectively designed anesthesia delivery systems.

The recent trend in Ohio and elsewhere however has been to make hospitals increasingly accountable to patients for acts of malpractice committee by doctors while the patient is in the hospital. The result of his trend has been that victims of medical malpractice have increasingly been able to recover damages from the hospital involved. This article will briefly examine what the traditional legal view of hospital liability has been and how that view has changed.

Under the traditional legal doctrine of respondent superior, and employer is liable for the negligent acts of an employee that occur where the employee is "on the job." Thus any person who is damaged by the negligent acts of the employee may recover from the employer who is usually better able than the employee to compensate the injured person.

This doctrine is limited to persons over whom the employer can exercise direct control. If the persons are one who are not under the direct control of the employer, but who instead exercise their own independent judgment in performing their tasks they are said to be independent contractors. An employer is not usually liable for the negligent acts of such an independent contractor since he lacks the ability to control that person. Sometimes a defense lawyer will argue "no control," but the evidence will indicate otherwise and, therefore, the responsibility will exist.

In the normal hospital setting a private doctor who is not directly employed by the hospital but who merely has staff admitting privileges was thought of as being an independent contractor. He was thought to exercise independent medical judgment free from ay control by the hospital. Therefore, the hospital would not be responsible for damages to patients resulting from the negligent acts of the doctor.

Hospitals soon used this concept to attempt to further shield themselves from liability. Instead of hiring doctors to work directly for the hospital in such necessary areas as emergency rooms, the hospitals contracted these services to outside doctors or groups of doctors. In this way, almost all of the doctors in a hospital achieved independent contractor status cutting off much of the hospital's liability for malpractice.

The Ohio Court of Appeals for Cuyahoga County took a more enlightened approach in denying hospitals this independent contract shield and making them more accountable to injured patients. In the case of Hannola vs. City of Lakewood. et al. 68 O. App. 2d 61(1980) the court held Lakewood Hospital liable for malpractice of an emergency room doctor even though the emergency room was operated by and outside contractor who employed the doctor.

In the Hannola case, the hospital sought to avoid any liability for the death of Mr. Hannola allegedly due to malpractice committed by the emergency room physician. The court said that such a result would be contrary to the reasonable reliance the patient and his family places on a hospital that claims to be a full service hospital.

Members of the public often choose a hospital because it holds itself out as providing a wide range of services and because it has established a good reputation. It is not until disaster has struck that the patient or his family learns that their reliance on the hospital was misplaced. The injured patient is then left with only the doctor to recover from who often has limited insurance coverage. An injured patient might never fully recover his damages.

The court recognized this basic unfairness to those persons seriously injured. Since the hospital presents itself to the public as a institution serving the health needs of the community, it will be held accountable to the public for that image. Indeed the court concluded that to the extent that a hospital controls the granting and review of staff privileges to doctors, it has a duty to prevent malpractice by those doctors.

The Hannola case and the trend it represents can be of great importance to all of us. Most of us are hospitalized at least a few times during out lives and even more frequently have members of our families or friends who require hospital care. The hospital emergency room is frequently the only place where immediate medical attention can be secured in a emergency or after normal business hours.

This hospital care may, hopefully in only rare instances, be negligently and improperly rendered. Up until recently hospitals have often successfully avoided any liability for the substandard care rendered in their facilities. As a result the injured patient was often left with recourse only against the negligent doctor whose limited malpractice insurance might be wholly insufficient to compensate for the injuries received.

Fortunately for all of us the law in Ohio has recently made advances in protecting the innocent, but nevertheless injured patient. Hospitals can no longer shield their often enormous resources by hiding behind elaborate contractual relationships with other health-care providers. They must now be directly responsible to patients for the care rendered within their walls and provide compensation when unfortunate medical errors are made. Hopefully, the final result of such responsibility will be fewer such errors and better medical car for us and our families.