Candor after Kadlec: Why, Despite the Fifth Circuit's Decision, Hospitals Should Anticipate an Expanded Obligation to Disclose Risky Physician Behavior

Abstract

An anesthesiologist admitted to having been drug-impaired during a tubal ligation that left the patient with massive, incapacitating brain damage. In granting the anesthesiologist privileges, one of the items Kadlec Medical Center had relied upon was a short credentialing letter from Lakeview Regional Medical Center. That letter stated simply that the doctor had held anesthesia privileges there for several years; it did not disclose concerns about on-duty drug use, or that he could not exercise his privileges after having been terminated from his practice group for "put[ting] our patients at significant risk" by "report[ing] to work in an impaired physical, mental, and emotional state." The Fifth Circuit, applying Louisiana law and overruling the district court on this point, held that Lakeview had no affirmative duty to disclose the negative information to Kadlec.

The Fifth Circuit’s decision notwithstanding, I argue that hospitals should anticipate being held to a duty of greater candor in responding to credentialing inquiries. Recognition of this obligation follows from converging trends in health law theory, institutional liability, reporting duties, accreditation standards, and hospital practice.