Paulino v. QHG of Springdale, Inc.
| Decision Date | 15 March 2012 |
| Docket Number | No. 11–26.,11–26. |
| Citation | 386 S.W.3d 462,2012 Ark. 55 |
| Parties | Theresa Enuart PAULINO and Eddie Paulino, Appellants v. QHG OF SPRINGDALE, INC., d/b/a Northwest Medical Center and Northwest Arkansas Hospitals, LLC, d/b/a Northwest Medical Center, Appellees. |
| Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
Frank H. Bailey, Sach D. Oliver, Timothy Ryan Scott, Bentonville, Brian Gene Brooks, Greenbrier, David H. Williams, Little Rock, Robert B. Leflar, Fayetteville, for appellant.
Walker Dale Garrett, Shannon L. Faint, Vincent O. Chadick, Fayetteville, Brian D. Malkmus, Debra Liane Gullett, Springfield, MO, Elisa M. White, Little Rock, L. Kyle Heffley, Rogers, for appellee.
The instant appeal involves an action filed by appellants Theresa Paulino and Eddie Paulino, husband and wife, against appellees QHG of Springdale, Inc., d/b/a Northwest Medical Center and Northwest Arkansas Hospitals, LLC, d/b/a Northwest Medical Center (collectively, NMC) for negligent credentialing and negligent retention. The circuit court granted summary judgment in favor of NMC. We affirm.
The facts are these. On November 17, 2006, Dr. Cyril Raben performed a cervical diskectomy and fusion surgery on Mrs. Paulino's spine. A follow-up scan showed failure of the fusion in the C6–7 region and that two screws used to hold medical hardware in place were backing out or shifting out of place. After looking at these scans, Dr. Raben recommended that Mrs. Paulino schedule a second surgery to remove the medical hardware and replace it with newer hardware. According to the Paulinos, the purpose of the second surgery was to replace the medical hardware, remove bone spurs, and attempt to fuse the region where the earlier fusion had failed.
The second surgery occurred on December 17, 2007. After the surgery, Mrs. Paulino complained of extreme pain in her neck and shoulders and told the nurses that she could not feel anything below her chest. A CT scan was performed on Mrs. Paulino's cervical spine, and the radiologist found that part of the medical hardware replaced by Dr. Raben was extending into the spine's central canal and was likely contributing to the impingement of Mrs. Paulino's spinal cord. The radiologist also found that a bone was extended into the epidural space approximately five to seven millimeters. After reviewing the CT scan, Dr. Raben performed a third surgery on Mrs. Paulino. The third surgery was also performed on December 17, 2007. After that surgery, Mrs. Paulino could barely move her arms, had pain in her neck, and could not feel her legs. At the time the appeal was filed, Mrs. Paulino remained unable to walk.
The Paulinos filed their first complaint against Dr. Raben and his employer, Arkansas Spine and Orthopedic Association, LLC (NWA Spine Clinic) and alleged that Dr. Raben was negligent and that his employer was vicariously liable for that negligence. The Paulinos amended their complaint a total of five times. In the second amended complaint, they asserted new claims against three new defendants: QHG of Springdale d/b/a Northwest Medical Center; Melanie Richard, R.N.; and American Intraoperative Monitoring, LLC (AIM). The Paulinos maintained their claims for medical negligence against Dr. Raben and NWA Spine Clinic but added claims for medical negligence against Richard, the monitoring nurse, and AIM. According to the second amended complaint, Richard negligently failed to communicate the loss of lower-extremity response to Dr. Raben. The complaint further alleged that AIM was “an employer of Richard and was vicariously liable for her negligence.” The Paulinos also asserted a claim for negligent credentialing against NMC and a claim against AIM for the negligent hiring, supervision, and training of Richard.
Dr. Raben and NWA Spine Clinic were dismissed from the litigation after reaching a settlement with the Paulinos. Richard and AIM were likewise dismissed after reaching a settlement. After these parties were dismissed, the Paulinos filed a third amended complaint. In this complaint the parties making up NMC were named as the defendants. The Paulinos alleged that NMC negligently credentialed Dr. Raben. In support of this claim, the Paulinos asserted that NMC first credentialed and granted privileges to Dr. Raben to perform orthopedic surgery in 1998, although the complaint alleged that he was never credentialed to perform cervical corpectomies. Since that time, NMC had re-credentialed Dr. Raben every two years. The complaint further alleged that NMC knew that Dr. Raben was performing cervical corpectomies and that NMC knew he was not competent to perform such surgeries. The Paulinos contended that NMC's credentialing policies and its complacency in allowing Dr. Raben to perform surgeries for which he was not credentialed or competent to perform led to their damages.
In their third amended complaint, the Paulinos pled several causes of action based in negligence against NMC relating to NMC's oversight of Dr. Raben and Richard. The Paulinos added a plea for declaratory judgment and damages and sought to revoke Dr. Raben's privileges at NMC.
They subsequently filed two more amended complaints. The final complaint in this case, the fifth amended complaint, asserted claims against NMC, John Doe 1, John Doe 2, and/or John Doe 3. The causes of action asserted were negligence, corporate negligence, negligent credentialing, negligent selection, negligent retention, lack of informed consent, and outrage. All of the negligence counts related to NMC's negligently permitting Dr. Raben to perform surgery on Mrs. Paulino and negligently permitting Richard to monitor that surgery. The Paulinos also requested punitive damages.1
On July 8, 2010, NMC moved for summary judgment and contended that no cause of action exists against NMC under the Arkansas Medical Malpractice Act or in Arkansas's common law for negligent credentialing or corporate negligence with respect to independent contractors. NMC added in its motion that, were the circuit court to recognize a cause of action for negligent credentialing, NMC would still be entitled to summary judgment based on the immunity granted to it under the Arkansas Peer Review Statute and the federal Healthcare Quality Improvement Act (HQIA) that protects hospitals in connection with credentialing and privileging. NMC further asserted that a third alternative basis for summary judgment was that the Paulinos could not meet their burden of proof because they could not prove two essential elements of a negligence action, which are standard of care and causation. NMC contended that it was entitled to summary judgment on the Paulinos' claim of outrage and for punitive damages because the facts alleged by the Paulinos did not rise to the level required. NMC, similarly, moved for summary judgment on the causes of action relating to Richard, arguing that she was the employee of an independent contractor, AIM, and not an independent contractor herself. Thus, NMC contended that it could not be held liable for negligent hiring, supervision, or retention of Richard.
The Paulinos responded and asserted that negligent credentialing was recognized under Arkansas's Medical Malpractice Act, because it was a “medical injury.” They further contended that negligent credentialing was a “long-recognized theory of recovery for direct negligence” against a hospital for violation of a duty owed to its patients that should be recognized in Arkansas. They added that Arkansas's Peer Review Statute did not immunize NMC's governing board for credentialing decisions, because it only protects hospital medical staff who are members of the peer review committee. Furthermore, they claimed that the federal HQIA did not immunize credentialing decisions, because it carved out an exception for state-law malpractice claims based on a provider's negligent treatment or care. They maintained that they could prove causation, because the proximate cause of Mrs. Paulino's injuries was NMC's decision to credential Dr. Raben. As a final point, they asserted that, although Richard was an employee of AIM, she was also an independent contractor and that NMC was liable for negligence in employing her.
The circuit court granted summary judgment to NMC on all of the Paulinos' claims. Specifically, the circuit court found that, as a matter of law, the Medical Malpractice Act did not confer a cause of action for negligent credentialing. The circuit court also found that it was the job of a hospital's peer review committee to determine whether doctors have complied with the standard of care and questioned how a jury could make an intelligent decision about a hospital's credentialing decisions when Arkansas's Peer Review Statute provides a hospital with a “privilege” for those decisions. Accordingly, the court concluded that a cause of action for negligent credentialing does not exist in Arkansas. In addition, the court determined that NMC was immunized under the HQIA and that no exceptions applied, because negligent credentialing is not part of a negligent treatment or care claim. See42 U.S.C. § 11115(d). The circuit court ultimately agreed with NMC that the Paulinos could not show causation, because Mrs. Paulino—not NMC—selected Dr. Raben to perform the surgery and Dr. Raben had selected the hospital for the surgery. The circuit court next found that the facts alleged were insufficient to support a cause of action for outrage or punitive damages, and it dismissed all claims concerning Richard, because NMC was not her employer.
The Paulinos urge on appeal that the circuit court erred in finding that Arkansas does not recognize a cause of action for negligent credentialing under the Medical Malpractice Act or at common law. The Paulinos urge, in the alternative, that Arkansas should recognize a new tort for negligent credentialing, using the analysis set out in Larson v. Wasemiller, 738 N.W.2d 300 (Minn.2007). Th...
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