When the E.R. doctor is abusive, is the hospital liable? Ask the Lawyer – Press Enterprise

Q: I went to the E.R with severe abdominal pain. The doctor literally chewed me out, said I am there too often, that I am wasting the hospital’s resources, and then told me my blood sugar was grossly abnormal. He said I should just leave. Turns out, I had never seen that doctor before and had not been to the hospital in quite awhile, so he possibly mistook me for someone else. But in either event, he has serious issues. The nurse whispered to me my blood sugar was within normal limits, and on my way to the car indicated that I should complain to the Department of Public Health (which I did). A couple of days later, I had to go to the E.R. of another hospital and was admitted for bowel obstruction. The DPH has found the doctor acted wrongfully and the hospital has let him go. I plan to bring claims, not just against the doctor but the hospital also. Do you think both could be liable?

L.Y., El Segundo

A: Sounds like you have a supportive witness, the nurse. In addition, you submitted a complaint to the California Department of Public Health, which issued a report indicating the doctor’s conduct was unacceptable. Note, you could also submit a complaint to the California Medical Quality Assurance Board. These are administrative complaints, but can be part of your effort, not solely the lawsuit in court.

It is of interest the hospital has pushed the doctor out. I wonder if that is the first such incident with this doctor. Bottom line, given the circumstances described, you have a direct claim against the doctor (one claim may be for intentional infliction of emotional distress), and, as to the hospital, you may well have a negligent supervision claim. This arises if you can show the hospital knew or should have known that the doctor was a risk to others. (For example, negligent supervision arises if a teacher molests a child after the school district already had notice of parental complaints about the teacher’s inappropriate behavior.)

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You indicate you spent some time at another hospital, not long after this incident. It is possible your condition was exacerbated by the aberrant doctor’s failure to treat. So you should at least evaluate a medical malpractice claim as well.

My impression is that, yes, you can pursue both the doctor and the hospital. Consultation with a lawyer, however,  is firmly recommended. There may be an issue as to whether the doctor was an employee of the hospital, or an independent contractor, which could possibly impact who will be liable.  Also, you should get the pertinent medical records to review.

Oversight

Reference above is made to the California Department of Public Health and the California Medical Quality Assurance Board. The CDPH seeks to protect the public’s health and to promote positive health outcomes. It also regulates various health care providers. A complaint can be submitted to the CDPH about a health care provider’s misconduct online at cdph.ca.gov.

The CMQAB works to protect health care consumers and to prevent harm through proper licensing and regulation (including of physicians, surgeons and licensed midwives). A complaint about a physician’s misconduct can be submitted to the board online at mbc.ca.gov.

Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator.  It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.