Minnesota Supreme Court Recognizes Cause of Action Against Hospitals for Negligent Privileging of Physicians

(August 2007)  Recently the firm represented a client in a case where the Minnesota Supreme Court held that hospitals owe a duty to patients to use reasonable care in granting hospital privileges to physicians. This duty exists even when the physician is not an employee of the hospital. This is the first time that an appellate court in the State of Minnesota has recognized a common law cause of action for negligent privileging. The firm's client was represented by Terry L. Wade.

This case arises from serious injuries suffered by the client after undergoing gastric bypass surgery performed by a doctor in Minnesota. During the course of discovery, it was found that the doctor had a history of educational, training, and practice issues. These issues included a failure to obtain board certification from the American Board of Surgery and a history of malpractice actions, discipline by the board of medical practice in Minnesota and North Dakota, restrictions on privileges by a medical center, and an inability to obtain malpractice insurance in the private sector since the 1980’s.

In its decision, the Supreme Court noted that recognition of the tort of negligent privileging would be a natural extension of well-established common law rights. The Court had previously recognized a hospital’s duty to protect patients from harm by third parties in other settings. In addition, the common law generally, as expressed in the Restatement of Torts, recognized a cause of action for negligent hiring of an independent contractor.

The Supreme Court reversed the decision of the Court of Appeals and reinstated the decision of Wilkin County District Court Judge Gerald Seibel, the trial court judge who initially allowed the negligent privileging claim to go forward. The Court held that recognition of the cause of action would not conflict with the peer review statute. The peer review statute evidenced no intention to abrogate such a cause of action and in fact may recognize such an action.

The Supreme Court reversed the decision of the Court of Appeals. The case has now been remanded for trial. A trial date will be set in the near future.