Ask HRC: Liability Risks for Non-Board-Certified Specialists

​A risk manager recently wrote to ECRI Institute seeking guidance on risks that an organization may face if a non-board-certified specialist is involved in a medical malpractice case.

In our response, we note that one theory of liability that could be raised is negligent credentialing, if this tort is recognized in the organization's jurisdiction. The guidance article Medical Staff Credentialing and Privileging discusses the credentialing process in general and negligent credentialing specifically. Some jurisdictions address credentialing through other legal theories (e.g., direct corporate liability) or through imposition of a common-law, nondelegable duty of care directly on the hospital.

In addition to malpractice lawsuits, the organization should consider pertinent guidance regarding Medicare and Medicaid conditions of participation for hospitals. For example, 42 CFR § 482.22(a)(2) addresses medical staff examination of candidates for membership and recommendation of candidates to the governing body for appointment. The Centers for Medicare and Medicaid Services (CMS)...