Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-25T06:37:23.407Z Has data issue: false hasContentIssue false
  • English
  • Français

The Law of Hospital and Health Care Administration. By Arthur F. Southwick, M.B.A., J.D., with contributions by George J. SiedelIII J.D. (Ann Arbor, Michigan: Health Administration Press, 1978) 500 pp., $25.00. - Problems in Hospital Law—Third Edition. By David G. Warren, J.D. (Germantown, Maryland: Health Law Center, Aspen Systems Corp., 1978) 339 pp., $15.00.

Published online by Cambridge University Press:  29 April 2021

Jay Alexander Gold
Jay Alexander Gold*
Affiliation:
New York University; Harvard University; College of Medicine, The Milton S. Hershey Medical Center of The Pennsylvania State University; American Journal of Law & Medicine
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Book Review
Information
American Journal of Law & Medicine , Volume 5 , Issue 1 , Spring 1979 , pp. 27 - 37
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1979

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 A. Southwick, The Law of Hospital and Health Care Administration v (1978) (hereinafter cited as Southwick).

2 D. Warren, Problems in Hospital Law—Third Edition viii (1978) (hereinafter cited as Warren).

3 The first and third parts, together constituting over one-fifth of the book, were written by Southwick's colleague, George J. Siedel, III.

4 This part has one chapter, “The Anglo-American Legal System.”

5 This part has two chapters, “The Organization and Management of a Corporate Hospital” and “Taxation of a Charitable Organization.”

6 This part has two chapters: “Breach of Contract and Intentional Tort” and “Negligence.”

7 This part, constituting the bulk of the book, has seven chapters: “Admission and Discharge”; “Legal Aspects of Emergency Hospital Care”; “Consent for Treatment”; “Abortion”; “Sterilization”; “Medical Records”; and “Hospital Liability.”

8 This part has one chapter, “Medical Staff Appointments and Privileges.”

9 Southwick, supra note 1, at vii.

10 Schloendorff v. Society of New York Hosp., 211 N.Y. 1251, 105 N.E. 92 (1914).

11 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957). Bing rejected the distinction made in Schloendorff between the “administrative acts” of professional personnel (in Bing, nurses employed by the institution), for which hospitals were responsible, and “professional acts,” for which hospitals were immune from liability.

12 33 Ill. 2d 326, 211 N.E.2d 253 (1965), cert, denied, 383 U.S. 946 (1966). The Illinois Supreme Court upheld a jury's finding of negligence against the hospital which was made on the alternative grounds that the hospital failed (1) to have a sufficient number of trained nurses capable of recognizing the patient's worsening condition and bringing it to the hospital's attention, or (2) to review the work of the attending physician or require consultation where needed.

13 431 U.S. 78 (1977).

14 428 U.S. 52 (1976).

15 In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976).

16 Southwick does say that the ethics committee must “review the medical evidence and opinion about the possibility that the patient might emerge from her chronic comatose state,” but does not specify the necessary prognosis. Southwick, supra note 1, at 237.

17 547 S.W.2d 582 (Tex. 1977).

18 This review will refer to the book as Warren's, despite the fact that 70-75 percent of the material is from earlier editions.

19 The title is curious in that “problems” per se have nothing to do with the book's structure.

20 Warren, supra note 2, at 123-66. One may object, though, that the law traditionally has viewed the situation as one of the patient giving or withholding consent from a procedure his physician has chosen, and thus that Warren's formulation is misleading as to the state of the law.

21 Id. at 95, 138-41, 178. It should be noted that the forms fail to notify the patient that he has the right to withdraw his authorization at any time.

22 Id. at 36-39.

23 Id. at 68-69.

24 Id. at 210-12.

25 Id. at 232-35.

26 Id. at 8.

27 Southwick, supra note 1, at 139-40.

28 33 Ill. 2d 326, 211 N.E.2d 253 (1965), cert, denied, 383 U.S. 946 (1966).

29 Warren, supra note 2, at 102.

30 Southwick, supra note 1, at 413.

31 Warren, supra note 2, at 124.

32 Problems in Hospital Law—Second Edition 67 (1974)Google Scholar.

33 464 F.2d 772 (D.C. Cir. 1972), cert, denied, 409 U.S. 1064 (1972).

34 Southwick, supra note 1, at 224.

35 Id. at 206.

36 Warren, supra note 2, at 143.

37 Southwick, supra note 1, at 430.

38 See text accompanying notes 15-16 supra.

39 Warren, supra note 2, at 155.

40 Id. at 200.

41 299 N.E.2d 326 (1973), discussed in Warren, supra note 2, at 103.

42 Collins v. Westlake Community Hosp., 57 Ill. 2d 388, 312 N.E.2d 614.

43 Warren, supra note 2, at 133.

44 Id.

45 Southwick has explored this theme more thoroughly in The Hospital as an Institution—Expanding Responsibilities Change Its Relationship with the Staff Physician, 9 Cal. W. L. Rev. 429 (1973)Google Scholar.

46 Southwick, supra note 1, at 346.

47 Id. at 348.

48 Id. at 428.

49 “[T]he trend is clear. The organized medical staff and its committees act on behalf of the hospital. Their negligent omissions become the hospital's omissions. Institutional liability can thus be established in the hospital as long as adequate proof of proximate cause can be established.” Id. at 423.

50 Id. at 412.

51 Id. at 350.

52 Williams, The Quandary of the Hospital Administrator in Dealing with the Medical Malpractice Problem, 55 Neb. L. Rev. 401, 405-06 (1976)Google Scholar.

53 Harris, Regulation and Internal Control in Hospitals, 55 Bulletin of the New York Academy of Medicine 88, 90-92 (1979)Google Scholar.

84 Southwick, supra note 1, at 350.

55 [T]he [American Hospital Association Patient's] Bill [of Rights] places the burden on the hospital, without explaining that the Bill requires active physician cooperation or makes mandatory close physician control. The hospitals must either have the organizational and legal teeth to do this job or they will bear the consequences of low public opinion without the ability to explain or excuse the fact that it is physician conduct that is the crux of many of the 12 points.

Horty, The Patient's Bill of Rights, Action Kit for Hospital Law E1-7 (1974).

56 Southwick, supra note 1, at 399.

57 Id. at 428.

58 Id. at 428-29.

59 Southwick, supra note 45, at 467.

60 Moore v. Carson-Tahoe Hospital, 88 Nev. 207, 211, 495 P.2d 605, 608 (1972), cert, denied, 409 U.S. 879 (1972).

61 Southwick, supra note 1, at 411.

62 Unfortunately, the Joint Commission on Accreditation of Hospitals still takes the position that “[u]nless otherwise provided by law, the bylaws should provide that officers be elected by the voting members of the medical staff.” Joint Commission on Accreditation of Hospitals, JCAH Monograph—Medical Staff Bylaws 23 (1978)Google Scholar.

63 “[S]uch lay control would be intolerable because only physicians can exercise clinical judgment.” Southwick, supra note 1, at 411. The question of whether a corporation may practice medicine has been analyzed at length in Willcox, Hospitals and the Corporate Practice of Medicine, 45 Cornell L.Q. 432 (1960)Google Scholar.

64 I do not mean to imply that the staff must be formally incorporated, but only that it could not be considered the nonentity that Horty and Mulholland consider it in The Legal Status of the Hospital Medical Staff, 22 St. Louis L.J. 485 (1978)Google Scholar.

65 Corleto v. Shore Memorial Hosp., 350 A.2d 534 (N.J. Super. Ct. 1975) and St. John's Hosp. Medical Staff v. St. John Regional Medical Center, 245 N.W.2d 472 (S.D. 1976) held that a hospital medical staff constitutes an unincorporated association. The court in Corleto held that the medical staff could be sued by the victims of an allegedly incompetent physician on the grounds that it “knew or should have known” of his alleged incompetence, and that it allowed him to remain on the case too long.

66 Williams, supra note 52, at 414, 415.

67 Id. at 415.