Ten with Ben: Episode 16 – Suing the Hospital but not the Doctor

Suing The Hospital But Not The Doctor

I'm Attorney Ben Schwartz. Today, we're going to talk about a recent Delaware Supreme Court opinion that just came out on April 8, 2019, in the case of Verrastro v. Bayhealth Hospitalists. This is a case where I read the decision and I found it quite interesting, and it really gives me the opportunity to talk about something that has been something I've been thinking about for a while.

In this case, it's a wrongful death case, and unfortunately, Mrs. Verrastro went to Bayhealth, and the doctors that she saw allegedly failed to properly diagnose her condition, and as a result, she passed away. A lawsuit was brought against the doctors who saw her at the hospital and against their employer, Bayhealth Hospitalists, LLC. Unfortunately, the lawsuit that was filed against the doctors was not filed in a timely manner. The lawsuit that was filed against the LLC was filed in a timely manner. The case proceeds along, and the defendants, the defense attorneys for the doctors moved to dismiss the malpractice case against the doctors. The court says, "Yeah, it's not timely filed." The doctors are out.

The lawyers for Bayhealth Hospitalists, LLC then say, "Well, if the doctors are out because they've been dismissed under the statute of limitations, then Bayhealth Hospitalists ought to be out too. They're the employer. How can you maintain a lawsuit against the employer if the employee whose negligence is the basis of the lawsuit, if the employee has been dismissed," and the court said, "Yeah, that sounds right. Let's dismiss the case against the employer too."

Now, this case went up on appeal to the Delaware Supreme Court, and the Delaware Supreme Court reversed. The Delaware Supreme Court said, "No, you can still have the lawsuit against the employer even though the lawsuit against the employees has been dismissed on statute of limitations grounds." The argument that the defense made was that the dismissal of the doctors is what's called an adjudication on the merits. Under the Delaware superior civil rules, a dismissal on statute of limitations grounds is an adjudication on the merits. The court said, "It's not an adjudication on the merits, so to speak. It's an adjudication that there's no liability." But, in order to hold the employer responsible, legally liable, for the employees' negligence, you don't have to have the employee included in the lawsuit.

The Delaware Supreme Court went back to a decision that it had issued in 1965, called Fields v. Synthetic Ropes, Inc. The citation for that is 215 Atlantic Second 427, and in that case, a husband and wife were involved in a motor vehicle accident. One spouse was injured, would have sued the other spouse, but at the time, there was spousal immunity. So instead of suing the other spouse, the plaintiff sued the employer of the other spouse, and the court said that's perfectly fine. You can have what's called respondeat superior liability, the liability of the employer based on the negligent act of the employee, even if you can't file a lawsuit against the employee. So in the Verrastro case, the Delaware Supreme Court said, "Look, that's been the law since 1965. In order to have respondeat superior liability, you don't have to have the liability of the employee. You have to merely have culpability," meaning a negligent act or omission causing injury.

So in Delaware, we have this little quirk in the law, and this is not in all states, but this is in the state of Delaware, where under Delaware law, you can have a lawsuit against the employer under respondeat superior, meaning you can have a lawsuit against the employer based on the employee's negligence even if you don't sue the employee.

That brings me to my question, and this is really directed towards other personal injury attorneys, or you know, insurance adjusters, insurance claims personnel, who deal with medical malpractice cases. In a medical malpractice case in Delaware, you know you can sue the physician's employer without suing the physician, based off of Verrastro, based off of the Synthetic Ropes case. Should you file only against the hospital? Should you file only against the physician's employer, and not sue the doctor at all, after the doctor negligently causes injury or death and you're going to pursue a medical malpractice case?

Suing The Hospital But Not The Doctor

This is a really interesting question, and it's a question that I would submit, as a plaintiff's attorney, you have an obligation, in every medical malpractice case you file, you have an obligation to talk to your client and find out what they want you to do. Does the client agree that you should only file against the hospital or against the physician's practice? Does the client want you to actually sue the doctor who rendered the negligent care? Which one is it? There are good reasons not to sue a doctor, and only to pursue a case against the hospital or the physician's practice. For example, this is the State of Delaware Division of Professional Regulation guidance on physicians' mandatory duties to report, and there is a mandatory duty to self-report each final judgment, settlement, or award against you, regardless whether you have malpractice insurance, within 30 days of the final judgment, settlement, or award. That's 24 Delaware Code Section 1731(A)(f).

Also, there's guidance with respect to the National Practitioner Data Bank, where a physician malpractice payment must be reported to the NPDB. So, if you are a plaintiff's attorney, and you are about to file a medical malpractice case, you should take into consideration that if you file against solely the practice, you may have an easier time getting the case resolved, where the doctor does not have a mandatory duty to report to the board, or to the National Practitioner Data Bank, the payment that is made in settlement of the medical malpractice case.

On the other hand, if you don't sue the physician, are you really carrying out your client's objectives in hiring you as an attorney, in going through the process to file that medical malpractice case in the first place? Isn't the purpose of the client bringing that medical malpractice case to bring the doctor to justice, who negligently, carelessly, recklessly caused the death of their family member or caused them catastrophic injury?

It's something to think about. It's an interesting topic to me because you know, every case is different, and really, medical malpractice cases tend to be what I would refer to as bespoke cases. You know, when you go to buy a suit, there are off-the-rack suits, there are custom-tailored suits, and there are bespoke suits, bespoke meaning that you pick the material, you pick the stitching, you pick the cut, you pick exactly how you want the suit made, and your tailor makes it specifically for you, to your particular specifications. I think medical malpractice cases are a bespoke type of case, and this is a conversation that I would have with my clients in this type of case, in order to make sure that their wishes are carried out and that they're fully informed of the pros and cons of each course of action.

Anyways, I'm interested to know what you think. Leave a comment in response to this video or send me an email. This has been an episode of Ten with Ben. I hope you enjoyed watching it and found it informative. Let me know if there's a topic you would like me to touch upon in another one of these videos. Thanks for watching.

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