Negligent credentialing claim puts reputations at risk

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But while Stalker was under anesthesia and without obtaining her consent, Abraham removed a large amount of tissue, a procedure called a lumpectomy, which – under the terms of his privileges at Samaritan Hospital –  he was not authorized to perform.

Tests on the tissue showed that it was neither cancerous nor pre-cancerous.

In April 2006, Stalker filed a lawsuit against Abraham and Samaritan Hospital.  Six years later and after two attempts by the hospital to get part or all of the case thrown out of court, publicly available documents in Stalker’s lawsuit are providing a look at a relatively rare legal claim:  that of ‘negligent credentialing.’

Access to witnesses denied

Samaritan Hospital has denied all the allegations.  In a February 2011 request to the court to dismiss the lawsuit, the hospital’s attorneys, Thuillez, Ford, Gold, Butler, & Young, said that when Abraham was first appointed and each time he was re-appointed, all the checks required by state law and the hospital’s bylaws were carried out.

“Said requests made by Samaritan Hospital on each occasion he was re-credentialed failed to reveal any issue concerning his medical care and treatment,” the document says.

Citing a request by her attorneys, the Albany firm of Conway & Kirby, Stalker declined to comment for this story.

Stalker’s lawyers have made several claims in their lawsuit.  One of them is that Samaritan Hospital is responsible for Abraham’s alleged malpractice in his treatment of Stalker because it knew or should have known that Abraham was not fit and competent to practice in the hospital.  In order to investigate that, in 2008, the attorneys attempted to depose an individual at Samaritan Hospital who was responsible for the process of granting and renewing privileges to doctors.

But the hospital, citing sections of both the state’s education and public health laws, applied for a protective order.  These laws exempt materials used in the credentialing or re-credentialing of a doctor from disclosure in a lawsuit.

Stalker’s attorneys opposed the hospital’s request but in 2008 the judge in the case, Stephen A. Ferradino of  state Supreme Court in Saratoga County, granted the protective order.  Stalker’s lawyers filed an appeal with the Appellate Division and that, too, was denied, in November 2009.

Another claim made by Stalker’s attorneys is that the hospital is liable for Abraham’s alleged malpractice because of what is known as ‘vicarious liability.’ This can make a hospital responsible for the actions of an employee or someone acting under the direction or control of the hospital.  Stalker’s attorneys also argued that Samaritan Hospital employees who assisted in the operating room should have known that Abraham was performing a procedure – a lumpectomy – that was not scheduled to be performed and should have spoken up and tried to stop him