The Lawletter Vol 37 No 11
In a case of first impression, the Montana Supreme Court has joined courts from many other states in recognizing a cause of action for negligent credentialing of a physician. In Brookins v. Mote, 2012 MT 283, ___ P.3d ___ (not yet released for publication), an expectant mother hired an obstetrician who maintained a practice in his home. The obstetrician ("Dr. Mote") had previously resigned his position at Mineral Community Hospital ("the Hospital") and pleaded guilty to misdemeanor sexual abuse of a child. The Montana Board of Medical Examiners had placed the doctor on probation and prohibited him from treating minor patients unless a third party was present. Aware of these facts, the Hospital declined to rehire him as an employee but did extend credentials for him to use the Hospital's facilities as an independent physician.
Medical problems persisted during the pregnancy and after delivery, and a medical malpractice action was filed against the Hospital and Dr. Mote. The complaint alleged that the doctor had had unauthorized sexual contact with the baby during delivery, examination, and subsequent circumcision. A claim for negligent credentialing was asserted against the Hospital. Following a settlement with Dr. Mote, the trial court granted summary judgment for the Hospital.
On appeal, the court noted that it had not formally recognized the tort of negligent credentialing but that 40 years earlier it had observed that hospitals have a duty to take steps to ensure patient safety in the process of accreditation and granting of privileges. The court also noted that it recognizes analogous torts, such as negligent selection or hiring of an independent contractor. Finally, the court acknowledged that at least 30 other states recognize the tort of negligent credentialing. The court concluded:
Based on these authorities, we are persuaded that the "gradual evolution" of the common law supports the recognition of the tort of negligent credentialing. Sacco, 271 Mont. at 234, 896 P.2d at 426. We therefore recognize negligent credentialing as a valid cause of action in Montana. Similar to a medical malpractice claim, a plaintiff in a negligent credentialing action must establish the following elements: "(1) the applicable standard of care, (2) the defendant departed from that standard of care, and (3) the departure proximately caused plaintiff's injury." Estate of Willson [v. Addison, 2011 MT 179, ¶ 17, 361 Mont. 269, ¶ 17, 258 P.3d 410, ¶ 17].
Id. at ¶ 60.
The Brookins court also ruled that expert testimony was required in order to establish that the Hospital had deviated from the standard of care. Since the mother did not present such testimony, the court affirmed the grant of summary judgment for the Hospital.