WPI 105.02.02 Hospital Responsibility—Corporate Negligence

Use this instruction when there is an issue of hospital corporate negligence. The instruction sets forth four examples of independent duties that a hospital owes to its patients. Fill in the blank in the last bracket with such other duty as the court finds legally applies and is supported by the evidence. Use one or all of the bracketed clauses as applicable depending on the facts of each case. See the Comment below.

It is important to distinguish between the three theories on which liability against a hospital may be based: corporate negligence, vicarious liability for a non-employee physician (“ostensible” or “apparent” agency), and vicarious liability for the negligence of a hospital's officers, employees, or agents. One or all of these theories may be advanced against a hospital in any one case. This instruction should not be used for issues of vicarious negligence of non-hospital employees. Instead use WPI 105.02.03 (Negligence—Hospital—Apparent Agency). This instruction should also not be used for issues involving direct negligence of a hospital employee in the performance of medical care. Instead, use WPI 105.02.01 (Negligence—Hospital).

This instruction is based on Pedroza v. Bryant, 101 Wn.2d 226, 677 P.2d 166 (1984), and Douglas v. Freeman, 117 Wn.2d 242, 814 P.2d 1160 (1991). The doctrine of corporate negligence was expressly adopted and applied to hospitals by the Washington Supreme Court in Pedroza. Under this doctrine, hospitals owe independent and non-delegable duties directly to their patients to exercise reasonable care.

Washington courts have held that the accreditation standards of the Joint Commission on Accreditation of Hospitals and the hospital's own by-laws are relevant to determining the standard of care owed by a hospital. Douglas v. Freeman, 117 Wn.2d 242, 248, 814 P.2d 1160 (1991); Pedroza v. Bryant, 101 Wn.2d 226, 233–34, 677 P.2d 166 (1984); and Alexander v. Gonser, 42 Wn.App. 234, 240, 711 P.2d 347 (1985). The court in Douglas v. Freeman, 117 Wn.2d at 248–49, noted that Washington decisions have held that the standard of care may be defined by statute. Examples include Byerly v. Madsen, 41 Wn.App. 495, 503, 704 P.2d 1236 (1985) and Schoening v. Grays Harbor Comm'ty Hosp., 40 Wn.App. 331, 335, 698 P.2d 593 (1985). However, a violation of a Joint Commission standard, statute, regulation or hospital bylaw adopted by its governing body does not amount to negligence per se. RCW 5.40.050; Andrews v. Burke, 55 Wn.App. 622, 626, 779 P.2d 740. The second paragraph of the instruction defines the duty of reasonable care using the language of RCW 7.70.040.

The opinion in Douglas v. Freeman, 117 Wn.2d 242, 248, 814 P.2d 1160 (1991), contains extensive discussion of corporate negligence. The Douglas court identified four specific duties a hospital owes to its patients under the doctrine of corporate negligence: (1) to use reasonable care in the maintenance of buildings and grounds for the protection of the hospital's invitees; (2) to furnish and select patient supplies and equipment free of defects; (3) to select its employees with reasonable care; and (4) to supervise all persons who practice medicine within its walls.

Two of these four duties discussed in Douglas are found in the bracketed language in the instruction. The duty regarding maintenance of grounds and buildings, and the duty regarding patient supplies, are not included because claims of negligence for violation of those duties are not claims for damages for injury as a result of health care. Thus, such claims are not made pursuant to RCW 7.70.010 and the WPI Committee believes that they do not belong in this instruction.

The third bracketed clause instructs the jury as to the hospital's duty to intervene in the treatment of its patients if there is obvious negligence. This duty is discussed in Schoening v. Grays Harbor Community Hosp., 40 Wn.App. 331, 698 P.2d 593 (1985), and Alexander v. Gonser, 42 Wn.App. 234, 711 P.2d 347 (1985). The WPI Committee has made no attempt to define the word “obvious” for the jury. In the absence of a definition by the appellate courts, the WPI Committee believes the word should be given its common and ordinary meaning.

The fourth bracketed clause instructs the jury regarding the hospital's duty to exercise reasonable care to adopt policies and procedures. This duty is discussed in Osborn v. Public Hospital Dist. I, Grant County, 80 Wn.2d 201, 492 P.2d 1025 (1972).

The last bracketed clause reflects that duties may be owed by the hospital to the patient in addition to the bracketed duties set forth above, depending upon the facts of the case.

The instruction's paragraph on evidence of reasonably prudent practices was new to the fourth edition of this volume. The WPI Committee added this paragraph to make the instruction more consistent with the related instructions WPI 105.01 (Negligence—General Health Care Provider) and WPI 105.02 (Negligence—Health Care Provider—Specialist), each of which has a similar concluding paragraph. Although no court has specifically applied these principles to hospitals, the WPI Committee could think of no reason why they would not be applied to hospitals. For a discussion of these principles generally, see the Comment to WPI 105.01 (Negligence—General Health Care Provider).

The doctrine of corporate negligence does not encompass a claim for lack of informed consent. Howell v. Spokane & Inland Empire Blood Bank, 114 Wn.2d 42, 785 P.2d 815 (1990).

In Andrews v. Burke, 55 Wn.App. 622, 779 P.2d 740 (1989), the court held that the trial court's failure to give a corporate negligence instruction was not error in the absence of evidence to support such an instruction. In Douglas v. Freeman, 117 Wn.2d 242, 248, 814 P.2d 1160 (1991), the court found that there was sufficient evidence to support the trial court's corporate negligence instruction. The court also held that the trial court properly instructed the jury that in order to find for the plaintiff on a corporate negligence theory it had to find a duty of care owed to the plaintiff by the defendant clinic, a breach of that duty, and proximate cause between the breach and the plaintiff's injury.

RCW 7.70.090, enacted as part of the 1986 Tort Reform Act, limits the liability of members of a hospital's board of directors or other governing body. It provides the members “are not individually liable for personal injuries or death resulting from health care administered by a health care provider granted privileges to provide health care at a hospital unless the decision to grant the privilege to provide health care at the hospital constitutes gross negligence.”