News

Robert F. Elliott Successfully Defends Against Negligent Credentialing Claim

March 14, 2019

On March 11, 2019 a Nassau County jury returned a defendants verdict in favor of Mr. Elliott’s hospital client concluding that the hospital’s alleged failure to properly credential its surgeon was not the cause in fact for the plaintiff’s injuries. 

This complicated case was tried over 15 full trial days in late February through early March, 2019.  The plaintiff was a 51 year old who had a rare stomach tumor.  He claimed that because of improper positioning during the surgical removal of the tumor that he developed a sciatic neuropathy.  In addition, he claimed that the hospital had not properly credentialed the surgeon to perform the specific surgery that was performed.  A negligent credentialing claim asserts that had the hospital been appropriately diligent in investigating a practitioner’s credentials it would have uncovered reasons not to grant particular privileges.  Since a physician’s credential file is considered privileged pursuant to Public Health Law Section 2805(m), plaintiffs are required to prove the negligence from extrinsic sources.  Because of difficulties associated with obtaining such evidence, these claims although plead in a standard medical malpractice complaint are rarely perfected and prosecuted at trial.  Because of the immunity from disclosure associated with the credentials file these cases are as difficult to prove as they are to defend.  Those difficulties did not deter the plaintiff’s attorney in this case from proceeding.  Long after the matter was placed on the trial calendar, discovery directed at the practitioners privileges file ensued via subpoena.  Senior Associate, Dawn Guinta, with the assistance of our appellate team was able to successfully thwart plaintiff’s belated efforts just prior to trial to obtain privileged credentialing information.  However, the Court declined to preclude the plaintiff from asserting the claims and he engaged in a full throttled effort to prove negligent credentialing in this case.  However, the jury was quite impressed with the surgeon’s credentials which was brought out as part of the hospital’s defense and as well based on the testimony of a senior hospital administration expert, the jury concluded that the injury claimed herein was not caused by a credentialing issue.

This was truly a team effort and we appreciated the opportunity to successfully defend our major teaching hospital client. 

* Attorney advertising. Prior successful results do not guarantee a similar outcome.