0:01

We talk about, uh, liability.

0:02

You know, remember all medical malpractice cases have three

0:05

parts, liability, causation, and damages.

0:09

We all know that most of the errors

0:10

that are committed in any medical setting

0:14

do not harm harm patients.

0:16

Uh, the vast majority

0:18

of errors ha have no real effect on the patient.

0:21

But to those who do, where there's liability,

0:24

where there's an error, and where that error is connected

0:27

to a specific cause, that's a malpractice case.

0:31

Now, people in my business will only be able to take cases

0:36

involving death, which is about half our cases

0:40

or serious permanent physical injury.

0:42

Not serious, not permanent, but both

0:45

because there has to be, as Dr.

0:47

Berlin talks about, uh, the economics control,

0:51

I always tell my lawyers it involves a

0:54

economic critical mass that has to be met

0:56

because the experts are gonna get paid,

0:58

the lawyers are gonna be paid,

1:00

but we've gotta have a situation

1:01

where the patient has a real change here.

1:04

How do you mitigate vicarious liability?

1:08

There are various ways to do that.

1:10

Uh, contract terms, the contract terms in the hospital,

1:14

in the office, and getting back to the venture cap people,

1:18

how they set their contracts.

1:20

What is in the contracts can guide the, the amount

1:24

that you may have to pay out.

1:26

But really, it, it, it, it guides who will pay

1:29

that out if there's, if there's liability and causation.

1:32

And you can, you can ameliorate that by making sure that

1:37

of your responsibilities, the standards of supervision

1:43

reasonableness rules.

1:45

It, it, it does. It's all what is reasonable.

1:47

Under, under the circumstance. When you were reading the

1:49

films and the patient was falling off the table,

1:51

was it reasonable to hold you liable for that?

1:53

No, it was not. Okay.

1:56

So we, we, we work off of that,

1:58

but I will have to tell you a question that I

2:03

frequently ask in depositions.

2:06

Is there a protocol in this hospital?

2:08

Is there a policy or a protocol in this hospital

2:11

that tells you how to designate

2:13

or when to designate test results as either routine, urgent,

2:19

or critical?

2:20

Is there a policy that says

2:21

what you do if you have an urgent test,

2:24

or what you do if you have a critical test?

2:28

The answer I frequently get from physicians

2:32

from every specialty I frequently get the answer is,

2:36

th there, there might be, uh, uh, I don't know.

2:40

It's really surprising to me the number of times I get

2:43

that answer in every kind of specialty.

2:47

And so if you want

2:49

to mitigate your vicarious liability risk,

2:52

make sure you know the institution.

2:54

You don't work for the institution,

2:56

fine. You need to know the

2:58

Institution's policies

3:00

and protocols that are related to your specialty.

3:03

For example, when a patient is,

3:05

I bet you in every hospital there is a policy

3:08

or protocol on the supervision of patients

3:12

who are on the table what to do.

3:15

I'm sure something says never leave them

3:18

or leave them only in this circumstance.

3:19

I'm sure there's a policy and procedure on that.

3:22

I'm telling you most times I depose people,

3:25

they don't know the answer

3:26

because they practice the way they practice.

3:29

And, and I think they don't believe it applies to them.

3:31

It does. And it will be hurtful to you

3:34

if there's a supervision claim.

3:37

Um, insurance coverage is important.

3:39

You need to be in a circumstance where you know

3:42

what your supervisory relationships are with the hospital

3:45

and with staff borrowed servant stuff.

3:48

You need to know what that is

3:49

to make sure you're protected in your own policy.

3:53

So those are the issues that I would talk, I,

3:55

I would think about in the vicarious liability risk,

3:58

especially with the venture cap stuff happening.

4:01

Now, you really want to be able to go to a lawyer

4:04

who knows not me, uh, go to a lawyer

4:07

who knows this particular area of protecting from liability

4:11

in terms of mitigation of vicarious liability.

4:15

The basic premise is what we have here.

4:17

You're not gonna be held liable

4:18

where there's no evidence control,

4:20

supervision or involvement.

4:22

Um, let me give you an example.

4:24

There was a, there was a, a case where, um, woman came in,

4:29

had a catheter put in, the catheter, showed

4:32

that it was in a vein.

4:34

They pulled it back out.

4:36

They ordered a second follow up, uh, film.

4:40

And, uh, that follow up film was listed as routine

4:43

because the, the woman was getting hyper and,

4:46

and, uh, she seemed to be stable.

4:48

Um, it was listed as routine.

4:49

It was supposed to come by Monday morning at seven 30.

4:53

It was not. The order was somehow either lost,

4:58

they don't know, lost or, or misplaced in some way,

5:02

and it didn't get done.

5:04

Turns out that on Tuesday morning,

5:07

the woman went into cardiopulmonary failure due

5:10

to a puncture of the catheter into her, uh, pericardium.

5:16

And she died and she was, I think 36 or 37.

5:20

The radiologist not knowing that she had died,

5:23

read the film Tuesday morning after she had died

5:27

and said, oh, there's a, the catheter's in the pericardium,

5:31

the gastroenterologist who placed that was sued,

5:35

the hospital was sued,

5:36

but also the chairman of the Department

5:39

of Radiology was sued.

5:41

And the chairman of Department of Radiology said,

5:44

I have nothing to do with this.

5:46

You know, and they, and the plaintiff said, no, you did.

5:48

You run that department,

5:50

you put out the policies and procedures.

5:52

Somehow this got screwed up and the systems

5:55

and the procedures weren't

5:56

Proper, and that's on you went to trial,

6:02

jury found the chairman, not liable, it was liability.

6:06

The, the verdict was, I think six and a half million

6:08

or something like that for the death.

6:11

But the chairman was found not liable

6:13

because radiologists will not be held liable

6:17

where there's no evidence of control, supervision

6:21

or involvement in the procedure.

6:22

And there wasn't in that case.

6:24

There are all sorts of instances

6:26

where control is just not there.

6:29

And just as I mentioned in the case of the, the,

6:31

the shooting, the surgeon wasn't liable there.

6:35

And in this case, the chairman was found not to be liable.

6:38

We also have cases, we have one right now

6:42

involving equipment failure.

6:44

The, the case we have right now is not a radiology case,

6:47

but it may be instructive.

6:49

A a gentleman comes in with stroke symptoms.

6:53

Uh, it's determined that he needs, um, cardiac bypass

6:58

and the heart lung machine that's being used in a very large

7:03

hospital malfunctions both at the beginning

7:06

and the end of the procedure causing according

7:08

to the hospital, causing a massive stroke.

7:13

Who's liable? Is the cardiologist liable?

7:18

No, the cardiologist is not liable for the function

7:23

of the machine there.

7:25

But fax control.

7:26

If the cardiologist saw something

7:28

or should have seen something that gave him some, gave him

7:32

or her some reason to stop the procedure,

7:35

then the answer might change the yes.

7:37

But the answer is, is no.

7:39

If it's based on just the malfunction of the machine,

7:44

machines are gonna malfunction.

7:45

We know that. Who has the responsibility

7:48

for making sure the machines don't malfunction?

7:50

Well, it starts with who owns the machine.

7:54

And let me be completely honest

7:57

and say, who's making money from the machine?

7:59

Who has a responsibility for seeing

8:01

that the machine is maintained?

8:03

One of the questions I had here is,

8:06

how about if we assume normal maintenance was applied?

8:09

Well, okay, machines can fail even when normal

8:12

maintenance is applied.

8:15

But the hospital, the institution,

8:18

not generally the radiologist, not the radiologist group.

8:23

Because what happens is the radiology group usually in,

8:28

in my practice at least, has a relationship

8:31

with the institution.

8:32

The institution has the responsibility

8:35

to maintain equipment.

8:36

If they don't maintain the equipment

8:38

and the equipment fails, the hospital's liable.

8:40

The radiologist is not in that circumstance.

8:44

And uh, uh, it says assuming they left it

8:46

to the service contract with the equipment company

8:48

to maintain machinery.

8:50

This all gets to who's liable. If any of you ever had

8:56

A homeowner's liability where some part of your house

9:00

flooded because a hot water heater ruptured

9:04

because the heating system failed,

9:08

the insurance company pays you the homeowner,

9:10

then what's the insurance company?

9:12

Do they sue the people who put the heater in

9:17

or manufactured the heater?

9:20

It's not any different here.

9:22

The hospital is responsible here.

9:24

The radiologist is not responsible here

9:27

and under vicarious liability with

9:30

that one exception that I mentioned.

9:32

And then the hospital is liable,

9:35

but the hospital can bring in third party defendants.

9:38

The service company or the manufacturer

9:42

and whoever's responsible is going to be liable, alright?

9:47

But in the first instance to the patient,

9:50

the institution is responsible.