When a surgeon plans to use an orthopedic implant, is it the facility's responsibility to approve the device and ensure that the surgeon is properly trained to use it? Not in Indiana, where the state's court of appeals issued an opinion that says a hospital doesn't have to vet every device that a credentialed independent contractor surgeon plans to use.

Tracey Beswick sued orthopedic surgeon Edward Bell, MD, and Floyd Memorial Hospital in New Albany, Ind., for malpractice in 2006, claiming that he suffers permanent impairment of his elbow because of a botched surgery Dr. Bell performed in 2004. The surgeon repaired Mr. Beswick's fractured and shattered left elbow with an elbow replacement implant, but in the months after surgery, Mr. Beswick suffered pain and had to have additional surgery. Mr. Beswick claimed that Dr. Bell and the hospital didn't comply with the standard of care because the hospital had not approved the implant or made sure that Dr. Bell and the OR staff were properly trained in using the implant.

As the lawsuit proceeded, the court's medical review panel ruled that Mr. Beswick and his attorney didn't present enough evidence to support the conclusion that the hospital and surgeon didn't meet the standard of care.

Mr. Beswick responded with expert testimony from an orthopedic surgeon who said that they breached the standard of care because the hospital had no protocols in place to make sure that Dr. Bell and the OR staff were properly trained and that the implant was approved by the hospital's medical review board. The hospital had a "duty to be certain that equipment used by a surgeon has been submitted for approval and actually by the hospital," say Mr. Beswick and his attorney, in court documents.

"That was a misstatement of Indiana law," said Matthew Jones, attorney for the hospital, who asked the trial court to dismiss the case because in Indiana, hospitals don't have a duty to approve the devices used by independent contractors.

In May 2010, the trial court agreed with the hospital's attorney and dismissed the case because there was "no genuine issue of material fact," according to court documents

Mr. Beswick appealed, but the higher court affirmed the lower court's dismissal of the case. The appeals court said that the plaintiff presented no evidence showing that the hospital had a duty to approve devices and procedures that a surgeon schedules at the hospital. "Dr. Bell's credentials as [a] licensed, board-certified orthopedic surgeon are undisputed," wrote Judge Carr L. Darden. Indiana law does not require a hospital that credentials physicians to "engage in the detailed micromangement of medical care being provided by individual independent physicians."

Mr. Beswick's attorney, Karen B. Neiswinger, of Indianapolis, declined to comment for this article because, she said, there may be further appeals in the case.

Kent Steinriede

More breaking news