Liability of a Nursing Home’s Medical Director
Publication Date: January 2019
Author: Roger J. Leslie
Categories: Elder Law, Liability, Legislation and Legislature, Nursing Homes
State and federal regulations require a nursing home to have a medical director.1 However, nursing homes often deny vicarious liability for medical director negligence by claiming the medical director is an independent contractor. The medical director sometimes describes her position as a general service to the facility; she has no duty to an individual resident, unless she is also that resident’s physician. Medical directors do have duties to individual residents under federal regulations enforced by the Centers for Medicare & Medicaid Services (CMS) and under Washington’s Vulnerable Adults Statute. A detailed description of a medical director’s duties is found in the guidance to surveyors section of the Long Term Care Survey, Phase 2 under the label of “FTAG 841.”2
Under Washington regulations, a medical director has two responsibilities to the residents of a nursing home. First, she must implement and evaluate resident care policies and procedures that reflect current professional standards of practice. Second, she must coordinate medical care in the facility. “‘Current professional standards of practice’ refers to approaches to care, procedures, techniques, treatments, etc., that are based on research and/or expert consensus and that are contained in current manuals, textbooks, or publications, or that are accepted, adopted or promulgated by recognized professional organizations or national accrediting bodies.”3 In deposition, the plaintiff’s attorney should have the medical director confirm that the facility’s policies and procedures represent current professional standards of care.
One requirement of the medical director under the duty to coordinate medical care is to intervene if a deficiency is identified in the resident’s care. In this role, the medical director should intercede with other physicians or practitioners to provide feedback or intervene with the physician or practitioner when the medical care is inconsistent with current professional standards of care. A conflict occurs when the medical director is also the resident’s attending physician. A medical director cannot be expected to supervise himself; such a circumstance deprives the resident of one layer of safety protection in that no one is overseeing the medical director’s private practice in the nursing home. CMS requires that the nursing home have a process to address concerns about the performance of a medical director who is also an attending physician.
Defense counsel will often describe how a medical director who is also an attending physician wears two hats. They may argue that the physician has a duty to the plaintiff as their attending physician, but not as the medical director for the facility. The significance of this distinction is that attending physicians are not subject to civil suit under the Vulnerable Adults Statute because they are not employees of the facility and they are not licensed by the Department of Social &?Health Services (DSHS).4 However, medical directors are identified as potential defendants in the Vulnerable Adults Statute. The plaintiff who brings a claim under the Vulnerable Adults Statute has two advantages. First, a prevailing plaintiff under this statute is entitled to recover their attorney’s fees and costs. Second, resident safety is an important element under the definition of “neglect” in this statute.5 The focus on resident safety opens the door for the topic of safety at trial, which is an important motivation for jurors. Where a physician is liable to a resident of a nursing home, it is important to determine whether the neglect occurred while the physician was wearing the hat of a medical director.
The CMS guidelines give an example of negligence of a medical director that creates immediate jeopardy to a resident’s health and safety.
The facility’s medical director was aware of and did not intervene when a health care practitioner continued over several months to provide inappropriate medical care for infection prevention to a resident that was inconsistent with current professional standards of care. As a result this resident’s health continued to decline, and was hospitalized with a severe infection.6
Under the above scenario, a complaint for damages and attorney’s fees and costs against the medical director should be filed alleging neglect under the Vulnerable Adults Statute.
The facility may not dodge liability for the medical director’s negligence by claiming he is an independent contractor. The facility is liable for the subsequent negligence of the medical director or attending physician under the Lindquist case.7 The Lindquist Court held that a tortfeasor is liable for the exacerbation, or augmentation in severity, of a plaintiff’s injuries resulting from later medical treatment where the tortfeasor’s negligence arguably created the need for that treatment. In some cases, nurses employed by the facility may neglect a resident by failing to follow physicians’ orders. If a medical director fails to follow up with the resident or follows up, but provides negligent care, the facility is liable for the damage caused by the medical director’s neglect.
Plaintiff’s initial discovery should include requests for copies of the facility’s policies and procedures and of its audit trail. Plaintiff’s attorney should always remember that under Washington law, the facility’s policies and procedures must be made available to the public.8 The facility cannot claim that the policies and procedures are trade secrets to avoid producing them in response to a request for production or to claim confidentiality.
Plaintiff should always request a copy of the audit trail as part of the request for resident records. The audit trail is a chronology with each entry created contemporaneously as part of the resident’s electronic records. It gives a clear picture of by whom, when, and for what purpose the resident’s records were accessed. It also reveals records that have been supplemented or edited later. A medical director who has not accessed the resident’s electronic records will have a difficult time proving that he was fulfilling his duty to oversee and intervene when medical care in the facility did not meet the professional standards of care.
A nursing home will likely be vicariously liable for the negligence of its medical director as an actual or apparent agent of the facility, despite efforts by the nursing home to characterize the medical director as an independent contractor. The defense that the medical director was an independent contractor should fail under the factors listed in the Adamski case.9
In determining agency, the Adamski factors for a hospital employing radiologists are as follows:
(1) Whether the patient sought treatment primarily from the hospital or from the physician. Most nursing home residents seek care from the nursing home prior to the designation of an attending physician.
(2) Whether it was the hospital who designated the physician to perform the services in question. Nursing homes often designate their medical director to provide care to residents who do not have a primary care physician.
(3) Whether the type of care provided was an integral part of the hospital’s operation. Nursing homes are required to have a medical director as a condition of maintaining their license as a nursing home.
(4) Whether the hospital handled the billing for the services of the physician. The nursing home often pays the medical director each month. If the medical director is also an attending physician, she may bill the resident separately, but that is for her care as an attending physician. That payment should have no effect on the agency of the physician as a medical director.
(5) Whether the hospital provided drugs and supplies utilized by the physician. Nursing homes typically provide supplies for the residents.
(6) The nature and duration of any agreements between the hospital and the physician. Nursing homes often have a contract with the medical director that may continue for many years.
(7) Whether the hospital made any representation to the patient, verbally or in writing, regarding their relationship to the physician. Nursing home advertising and online information often identify the nursing home’s medical director and his or her qualifications.
A contract between the facility and its medical director which provides that the medical director is an independent contractor does not have effect unless the medical director actually is an independent contractor.10 A showing that the Admaski factors for actual agency are present prevails over the contract provision. Further, the resident was not a party to the contract, and should not be bound by self-serving clauses in the facility’s contracts.
CMS does not disapprove of a medical director also providing care as an attending physician; however, each role creates separate duties for the physician. Facilities often encourage their medical directors to act as an independent attending physician, but the facility is liable under the Vulnerable Adults Statute for a physician’s violations in her role as a medical director.
Roger J Leslie is an EAGLE member, representing plaintiffs in nursing home negligence and medical negligence cases at the Law Office of Roger J Leslie. He is of counsel to Chemnick Moen Greenstreet and Chair of the WSAJ Nursing Home Litigation Section.
1 WAC 388-97-1700 and 45 CFR 483.70(h).
2 The Long Term Care Survey Phase 2, FTAG 841 pp 877-882, AHCA (November 2017) and 42 CFR 483.70(h).
3 Id. at p. pp877.
4 RCW 74.34.200.
5 RCW 74.34.020.
6 The Long Term Care Survey Phase 2, pp-877, AHCA (November 2017).
7 Lindquist v. Dengel - 92 Wn.2d 257 (1979).
8 RCW 74.42.430 and WAC 388-97-1780.
9 Adamski v Tacoma General Hospital, 20 Wn App, 98 (1978) and Moen, Eugene, “Hospital Agency for Non-employee Negligence, Trial News, December 2000, p. 17.