Do Kentucky patients have a cause of action against a hospital for the negligent credentialing of a non-employee physician who is given staff privileges by the hospital?  In March of 2016, the Court of Appeals answered that question in the affirmative, recognizing a new, stand-alone tort and avenue for recovery against Kentucky hospitals.

On November 2, 2017, the Kentucky Supreme Court disagreed.  Citing its far-reaching implications, as well as the unknown impact on rural hospitals and communities, the Court declined to recognize the new tort of negligent credentialing as a cause of action in the Commonwealth.

In rejecting the new cause of action, the Court explains that plaintiffs already have available the means to bring their claims under common law principles of negligence.  The Court offered specific future guidance for such litigation, which will be of interest to hospitals and physicians faced with malpractice claims.  Principles derived from the Court’s guidance include:

• The standard of care applicable to hospitals is the objective, reasonable hospital standard.  Higher standards adopted by a hospital’s bylaws do not create a higher standard of care or otherwise alter a hospital’s liability.
• Expert testimony regarding the standard of care and breach thereof must be established by the plaintiff in a negligence action against a hospital.
• A negligence action against a hospital for the selection of its physicians is derived from the negligence of the physician. If a claim against a physician is dismissed, leaving only the claim against the hospital, the plaintiff must present evidence of the physician’s negligence in order to prove causation in the claim against the hospital.
• If the claim against the physician is not dismissed, then bifurcation of the trial (with the negligence claim against the physician going first) is “best practice.”
• If the plaintiff does not prevail in a malpractice action against the physician, a subsequent trial against the hospital is neither necessary nor warranted.

The Court’s entire November 2nd opinion is available in the Court’s November 2017 minutes, found at here.