Since 2016, Dr. Peterson has been employed by Emergency Associates, Inc., a professional corporation supplying emergency room services to hospitals. Since 2013, Emergency Associates has had a contract (“the contract”) with MSG which requires it to “provide physician coverage on a round-the-clock basis to” MSG’s emergency room patients. Dr. Peterson became a member of MSG’s medical staff in 2013, when Emergency Associates assigned him to work at the MSG Emergency Room.

In 2016 Dr. Peterson completed a 3-year residency in emergency medicine at a hospital affiliated with the University of Arklazona, and he became licensed to practice medicine in Arklazona. Immediately thereafter, he became employed by Emergency Associates. Before joining MSG’s medical staff as an emergency room physician in 2016, Dr. Peterson worked briefly in emergency rooms staffed by Emergency Associates’ physicians at two other hospitals. He passed the examination for board certification in emergency medicine on his first try in 2016.

The contract requires Emergency Associates to provide “board certified emergency room physicians of unquestionable integrity and of the highest degree of competence.” Further, the contract requires Emergency Associates to “certify in writing to MSG that it has fully investigated each physician whom it proposes to employ” in OSG’s emergency room and that “each such physician has nothing in his/her background, education, training or experience which would constitute evidence that such physician is in any way incompetent to provide emergency services to” MSG’s emergency room patients.    

When Dr. Peterson initially applied to Emergency Associates for employment, he was in the last six months of his three – year residency in emergency medicine. During his residency, he was periodically evaluated by his superiors, each of whom prepared detailed written reports on his performance.                                   While these reports were quite favorable to Dr. Peterson in the last year of his residency, there previously had been several unfavorable reviews.

One such review, written in the beginning of Dr. Peterson’s second residency year, questioned his ability to spot fractures on x-rays and, in addition, commented that his overall knowledge of emergency medicine was so deficient that “it is at best doubtful that Dr. Peterson will ever become board certified in emergency medicine.”

Emergency Associates, in assessing Dr. Peterson’s candidacy for employment, contacted the director of his residency program, who described Dr. Peterson as “a hard working, conscientious physician who builds rapport with patients and colleagues alike.” No mention of any unfavorable evaluations was made. References whose names were provided to Emergency Associates by Dr. Peterson were uniformly favorable. Emergency Associates hired Dr.

Peterson.

Prior to his being assigned to work in MSG’s Emergency Room, Dr. Peterson had been neither a defendant in a malpractice suit nor the target of a malpractice claim, though twice he missed subtle rib fractures on x-rays (one at each hospital where he worked for Emergency Associates prior to becoming a member of MSG’s medical staff) and the patients in both cases had to be summoned back for further advice and treatment.

When it proposed Dr. Peterson Emergency Associates to MSG for its emergency room, it did not mention the missed fractures to MSG. When Dr. Peterson applied for privileges in emergency medicine at MSG, the chiefs (both Emergency Associates employees) of the emergency departments at the two hospitals where Dr. Peterson had previously worked provided references to MSG. Each chief was aware of the missed fracture at the institution where he was the chief. Both wrote glowing recommendations to MSG on Dr. Peterson’s behalf.

MSG, in assessing Peterson’s qualifications, also questioned the director of Dr. Peterson’s emergency medicine residency and received from him a report in almost the same language as Emergency Associates had received. The references supplied to MSG by persons whose names Dr. Peterson gave MSG were all favorable, and in his interview with the president of the MSG medical staff, the only interview MSG conducted, he was rated as a very knowledgeable physician. MSG granted privileges in emergency medicine to Dr. Peterson, who began working at MSG as an employee of Emergency Associates.

Emergency Associates provides only physicians for the MSG emergency room. MSG provides the equipment, nurses, technicians, administrative staff and consultants (i. e., radiologists, pathologists) and, as well, the physical space within the hospital for emergency room activities. The contract provides that “all physicians employed by Emergency Associates shall be independent contractors and not hospital employees.” It further provides that “all physicians employed by Emergency Associates will, without guidance, interference or control from the hospital, have the complete and unfettered right to exercise their own professional judgment in treating all patients. The hospital shall have no right to control the medical activities of any such physician.” Nevertheless, the Chief of Emergency Services, an Emergency Associates employee, reports to the Chief of Surgery, who, with trustee approval, issues policies and protocols for the furnishing of all emergency room services. The day-to-day activities of all personnel in the emergency room are supervised and directed by the Chief of Emergency Services.

Mrs. Ryan is injured in an automobile accident and brought, unconscious, to the MSG emergency room at 8 p. m. on a busy evening. Dr. Peterson sees her and, because of serious cuts, bruises, and bleeding at various places on Mrs. Ryan’s head, orders a head x-ray, which he correctly interprets as revealing multiple skull fractures. As a matter of course, Dr. Peterson orders spinal x-rays, which reveal nothing to him. He arranges for her admission to MSG as an inpatient under the care of Dr. Hoffman, a neurosurgeon. Neither Dr. Peterson nor Dr. Hoffman detects a fresh vertebral fracture which is present in Mrs. Ryan’s lumbar spine. She is treated at MSG for the head injuries.

The fracture causes swelling in a disc space, and the swelling impinges on Mrs. Ryan’s spinal cord. Dr. Hoffman is unaware of this because Mrs. Ryan remains comatose for 72 hours and is unable to communicate to them her consequent loss of motor function in her legs. When she becomes cognitive, it is too late to repair the spinal cord damage. Mrs. Ryan’s legs are permanently paralyzed.

Question A. What rights, if any, does or might Mrs. Ryan have against any person or entity? Why? On what grounds? Be specific with respect to each person or entity.

Question B. What defensive arguments can be made on behalf of each person or entity named by you in your answer to Question 2A as being a possible defendant. Be specific as to each such person or entity.

Question C. What would be the greatest strength in any claim made by Mrs. Ryan? Explain.

Question D. What would be the greatest weakness in any claim made by Mrs. Ryan? Explain.