Article in Kentucky Common Defense detailing the Kentucky Supreme Court's recent decision to recognize negligent credentialing in Kentucky and the effect of that decision.

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2. I
n November 2017, the Kentucky Supreme
Court held that common law hospital neg-
ligence claims may include allegations that
the hospital was negligent in the process of
credentialing physicians, resolving uncertainty
about whether plaintiffs could recover under
this theory.1
Lake Cumberland Regional
Hospital, LLC v. Helen Adams, 536 S.W.3d 683
(Ky. 2017). What does Adams mean going for-
ward?
What Is Credentialing?
In order to understand Adams, practitioners
must understand the credentialing process.
Credentialing “refers to the process of determin-
ing whether to make a physician a member of
the hospital staff.” Ronald L. Spaeth, et al.,
Quality Assurance and Hospital Structure: How
the Physician-Hospital Relationship
Affects Quality Measures, 12 ANNALS
HEALTH L. 235, 236-37 (2003).
Within each hospital, an administra-
tive group called a “credentialing
committee” determines whether to
grant a candidate-physician “privi-
leges” to join a hospital’s independ-
ent medical staff, allowing the
physician to admit and treat their
patients at the hospital. Typically, these commit-
tees comprise volunteer independent-contractor
physicians.
A healthcare facility’s credentialing commit-
tee “undertakes an elaborate, three-part creden-
tialing process that involves (1) an extensive
review of the physician’s application, (2) inde-
pendent verification of the application’s veracity,
and, ultimately, (3) a recommendation to the
hospital’s governing board whether to permit the
physician to become part of the hospital’s med-
ical staff.” Amy E. Watkins, Negligent
Credentialing Lawsuits: Strategies to Protect Your
Organization 3 (2005).
Healthcare facilities operate amid a patch-
work of state and federal laws, along with myriad
accreditation standards, which all require vary-
ing degrees of compliance. Credentialing, how-
ever, is an area that has largely been left to each
hospital’s discretion; although the act of creden-
tialing is required, the manner in which it is
done is not strictly dictated. That said, it is
important for both attorneys and healthcare
facilities to be familiar with standards issued by
the nation’s leading hospital accreditation
agency. The Joint Commission “certifies more
than 21,000 health care organizations and pro-
grams in the United States,” and provides stan-
dards to which hospitals and other healthcare
facilities look for guidance. Joint Commission
website, Facts About the Joint Commission page,
https://www.jointcommission.org/about_us/fact
_sheets.aspx (last visited March 29, 2018).
“Compliance with Joint Commission standards
is important to participating hospitals for a vari-
ety of reasons, not the least of which is that a
hospital that meets these standards is deemed to
meet the Medicare Conditions of Participation.”
Calvin L. Raup, et al., Negligent Credentialing
and Peer Review: A Primer for the Non-Health
Care Attorney, Arizona Attorney, Mar. 2010, at
31. This designation is necessary for the hospital
to receive Medicare funding. See 42 U.S.C. §
1395bb(a), x(e) (2018); see also 42 C.F.R. § 488.5
(2009). These standards offer guidance when
advising these facilities on appropriate or rec-
ommended credentialing practice. See, e.g.,
JCAHO HR.02.01.04.
Credentialing issues affect more than just hos-
pitals. All healthcare facilities, including long-
term-care facilities and ambulatory surgical
clinics, must perform credentialing or otherwise
ensure their staff is properly qualified.
The Tort Of Negligent Credentialing In Other States
“Until the 1950s, most hospitals were viewed
Kentucky Defense Counsel, Inc. commonDEFENSE NEGLIGENT CREDENTIALING
14
HOSPITAL LIABILITY VIA NEGLIGENT
CREDENTIALING AFTER ADAMS:
NOW WHAT?
By Joey A. Wright & Chad O. Propst
Thompson Miller & Simpson PLC
Louisville

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4. simply as a place where independent physicians
came together to practice medicine.” Watkins,
supra, at 7. The school of thought was that “hos-
pitals did not undertake to treat patients or act
through their doctors or nurses,” but, instead,
simply “procur[ed] physicians to act upon their
own responsibility.” Id. Under this view, hospi-
tals were not “saddled with an unreasonable
information-gathering requirement—forced to
scrutinize prospective staff physicians like the
CIA performing a security clearance.” Oskooi v.
Fountain Valley Reg. Hosp., 49 Cal. Rptr. 2d 769,
778 (Cal. Ct. App. 1996) (Sills, J., concurring).
Courts instead recognized that “[h]ospitals exist
to help the sick and injured; they are not detec-
tive agencies.” Id.
Over time, however, “licensing regulations,
accreditation standards, and financial incentives
from reimbursement agencies became more
stringent and required hospitals to exercise
greater oversight over their medical staff.”
Watkins, supra, at 7. As early as 1957, the tradi-
tional view of hospitals began to crumble. In
Bing v. Thunig, 143 N.E.2d 3 (N.Y. 1957), the
court flatly rejected this previously accepted
thought: “Present-day hospitals, as their manner
of operation plainly demonstrates, do far more
than furnish facilities for treatment. . . .
Certainly, the person who avails himself of ‘hos-
pital facilities’ expects that the hospital will
attempt to cure him, not that its nurses or other
employees will act on their own responsibility.”
Id. at 8.
In 1965, the Illinois Supreme Court sent the
first ripple of what has now become a tidal wave
of change in our understanding of hospital lia-
bility. In Darling v. Charleston Community
Memorial Hospital, 211 N.E.2d 253, 260 (Ill.
1965), the court “held that the hospital was not
simply the provider of work space for medical
personnel, but rather that the hospital assumed
certain responsibilities to the patients admitted
upon its premises.” Whitney Foster, Health
Law—Negligent Credentialing and You: What
Happens When Hospitals Fail to Monitor
Physicians, 31 U. ARK. LITTLE ROCK L. REV.
321, 325 (2009). The doctor in Darling improp-
erly set a patient’s broken leg and wrapped the
cast too tightly, resulting in necrosis. In addition
to suing the doctor, the plaintiff alleged the hos-
pital failed to require the doctor to keep his pro-
cedures up to date (in fact, he had only set two
broken ankles and could not recall studying any
orthopedic procedure within 10
years of the incident), failed to train
its nurses, and failed to prohibit the
doctor from performing orthopedic
work or require him to consult with
a specialist. In effect, the plaintiff
alleged the hospital had improperly
monitored and privileged its physi-
cian.
Approximately 30 states
currently recognize negligent credentialing,
either as a standalone tort or as a form of corpo-
rate negligence.2
Virtually all courts agree the
claim is derivative of the physician’s negligence,
and “[a]ll courts that have looked at the question
have concluded that expert testimony is neces-
sary to establish the standard of care owed by a
hospital, or whether the hospital has been neg-
ligent.” Benjamin J. Vernia, Tort Claim for
Negligent Credentialing of Physician, 98 A.L.R.
5th 533, 533 (2002).
Kentucky Supreme Court’s Adams Decision
Adams was the consolidation of three separate
cases involving two physicians granted creden-
tials to practice at Spring View Hospital and
Lake Cumberland Regional Hospital. The plain-
tiffs all underwent different procedures with dif-
ferent outcomes, but each plaintiff alleged
hospital liability via negligence in the credential-
ing process. The Court concluded that under
general negligence principles, a “hospital can
certainly be liable for its own negligence, sepa-
rate and distinct from any negligence on the part
of a physician—even a non-employee physi-
cian”; therefore, “a new cause of action is not
necessary for the plaintiffs’ claims.” Id. The
Court’s Adams decision and reasoning is sum-
marized in the Appellate Case Summary at page
6 of this issue.
The Court provided guidance on the proof
required to support allegations of negligence in
the credentialing process. When a plaintiff
claims hospital negligence in the credentialing
process, the objective standard of care is that
“expected of a reasonably competent hospital,
acting in the same or similar circumstances.” Id.
Moreover, “[j]ust like in a medical malpractice
case, where plaintiff must present expert testi-
mony regarding the standard of care and the
breach thereof, the plaintiff carries the same bur-
den in a negligence action against a hospital.” Id.
at 697. Notably, a hospital’s own policies or
bylaws do not set the standard of care for a neg-
ligence case. The Court was clear that “Spring
View’s bylaws do not, in and of themselves,
establish the standard of care.” Id. at 696. In fact,
a hospital’s “bylaws do not create a higher stan-
dard of care or otherwise alter[] its liability.” Id.
at 695. This is a welcome pronouncement for
defense attorneys after years of relying on vague
versions in Rogers v. Kasdan, 612 S.W.2d 133
(Ky. 1981), and its progeny.
Finally, the Court offered trial courts guid-
ance when presented with claims alleging direct
hospital liability for credentialing. These claims
are “derivative of the medical malpractice claim
against the physician,” which means that a
“plaintiff will be unable to prove causation in the
negligence action against the hospital” without
first proving the physician committed malprac-
tice. Id. at 691-92 (emphasis added). As a result,
“best practice involves bifurcating the trials”
because bifurcation “allows for clear presenta-
tion of the issues to the jury as well as responsi-
ble use of judicial resources.” Id. at 697. If a
physician defendant settles prior to trial, “the
plaintiff still has to present evidence of the doc-
tor’s negligence in order to prove causation in
his or her case against the hospital.” Id.
Adams Takeaways:
• Negligent credentialing is not a standalone
cause of action in Kentucky.
• That said, plaintiffs can bring a common-
law negligence action against the hospital
for the hospital’s own negligence in select-
ing or supervising its medical staff.
• The standard of care in such claims
“remains the objective, reasonable person
(hospital) standard.”
• A hospital’s bylaws do not change the stan-
dard of care.
• Expert testimony is required.
• The claim against the hospital or other
healthcare facility is derivative of the med-
ical-malpractice claim against the physi-
cian—the physician’s negligence must be
proven first.
• Bifurcation is best practice.
What May Lead To Negligent Credentialing Claims
Practitioners defending against allegations of
negligence in the credentialing process should
be aware of common credentialing fact patterns.
The following is a brief—read: non-exhaustive—
list of examples from other jurisdictions and
what plaintiff’s lawyers may view as credential-
ing red flags:
Failure to review physician’s numerous prior
medical practice claims. E.g., Larson v.
Wasemiller, 738 N.W.2d 300 (Minn. 2007). This
scenario is common. It is unlikely that a physi-
cian, especially one practicing in a high-risk spe-
cialty (obstetrics or surgery, for example), will
have no past medical-malpractice claims. By age
45, 36% of physicians in low-risk specialties,
such as family medicine, have been sued—
meanwhile, 88% of those in high-risk specialties
have been sued. Anupam B. Jena, et al.,
Malpractice Risk According to Physician
Specialty, NEW ENGLAND J. OF MED., Aug.
18, 2011. And by age 65, 75% of low-risk-spe-
cialty and 99% of high-risk-specialty physicians
have been sued. Id. Prior lawsuits, alone, are not
a valid indicator of whether credentialing is
appropriate.
A hospital’s mere knowledge of prior medical
malpractice claims is usually insufficient to con-
stitute negligent credentialing. In Strubhart v.
Perry Memorial Hospital Trust Authority, 903
P.2d 263, 275–76 (Okla. 1995), the Oklahoma
Supreme Court expressed doubt that a hospital’s
credentialing duty required hospitals to review
Kentucky Defense Counsel, Inc. commonDEFENSE NEGLIGENT CREDENTIALING
16

5. a physician’s work in all cases—instead, the court
limited the duty to the use of ordinary care in
situations involving (1) the granting of staff priv-
ileges only to competent physicians and (2) the
reevaluation of physicians holding privileges
when the hospital knows or should know the
physician “has engaged in a pattern of incompe-
tent behavior.” Id. at 275–76.
Prior restriction of revocation of privileges.
E.g., Johnson v. Misericordia Comm. Hosp., 301
N.W.2d 156 (Wisc. 1980). In Johnson, negligence
in the credentialing process was based on prior
restriction of a physician’s hospital privileges,
along with seven prior malpractice suits and lack
of board certification and privileges at other
facilities listed in application. See also Fridena v.
Evans, 622 P.2d 463 (Ariz. 1980). The Johnson
case is important to highlight that courts have
recognized a hospital’s obligation to investigate
a physician’s application. A physician may pres-
ent false or misleading information, but courts
have held that hospitals are responsible for
determining an application’s veracity. Johnson is
also important because the court emphasized
that the physician’s status, i.e., independent con-
tractor, was irrelevant because the hospital was
liable under its own duty, not the physician’s.
Lack of board certification. In their bylaws,
hospitals often have board certification as a
requirement for credentials. In Adams, for
example, Spring View required board-certified
doctors absent a showing of community need,
but Dr. Bailey “left blank the section of his appli-
cation requesting specialty boards in which the
physician was certified.” Adams, 536 S.W.3d at
688. While a hospital’s policies or bylaws do not
alter the standard of care, it is advisable that hos-
pitals review and follow their policies and
bylaws. Note that board certification more
deeply affects rural hospitals, which have trouble
recruiting board-certified physicians. “In urban
counties, 70 percent of physicians are board cer-
tified, compared with about 60 percent in rural
counties.” M.E. Miller & S. Zuckerman,
Comparing Urban and Rural Physicians, Health
Affairs, 10, no.4 (1991), at 245, available at:
http://content.healthaffairs.org/content/10/4/24
3.full.pdf (last visited Mar. 29, 2018).
Evidence of substance abuse issues. Like mal-
practice suits, the presence of substance-abuse
issues, alone, is insufficient to constitute negli-
gence in the credentialing process. To be sure,
substance abuse is a problem within the medical
field with approximately “10 to 12% of physi-
cians . . . develop[ing] a substance abuse disorder
during their careers.” Keith H. Barge, M.D., et
al., Chemical Dependency and the Physician,
Mayo Clinic Proc., July 2009, at 625. That said,
physicians do exceedingly well in treatment
rehabilitation, with higher-than-average absti-
nence rates between 74% to 90%. Id.
Other factors likely to be labeled as “red flags”
by plaintiff’s counsel. In addition to the factors
above, plaintiffs’ lawyers are likely to focus on an
applicant’s reluctance or unwillingness to pro-
vide information or to allow a hospital to contact
previous employers, short tenures at previous
organizations, evidence of prior professional dis-
ciplinary actions, poor performance evaluations,
and a history of limitation, reduction, or loss of
clinical privileges.
Future Procedural Concerns And Practice Points
A.Hospital Policies, Procedures, and Bylaws
Rural and urban or academic hospitals differ
greatly in structure and operation. “Due to dif-
ferences in hospital structure between the com-
munity and university hospitals, the same
measures used to obtain a higher quality of care
may often result in very opposite outcomes.”
Spaeth, supra, at 242. Hospital operation and
credentialing are, therefore, not one-size-fits-all
endeavors—there is no one best way. Each hos-
pital’s policies must be workable and appropriate
for that facility’s needs. With that said, below are
considerations or thoughts for advising a hospi-
tal client or reviewing a hospital’s bylaws while
investigating a claim:
• Hospitals should regularly review their
medical staff bylaws to ensure they comply
with applicable standards, including the
Joint Commission and Medicare
Conditions of Participation.
• Hospitals should review whether the physi-
cian has ever had his or her privileges
revoked or sanctioned at another facility.
• Hospitals should attempt to confirm an
applicant’s work history, board certifica-
tions, National Practitioner Data Bank
information, and Drug Enforcement
Administration status. In doing so, a hos-
pital should check for any gaps in time.
• Hospitals should obtain and critically
review an applicant’s peer reviews.
• Hospitals should obtain information relat-
ing to an applicant’s past medical malprac-
tice suits, if any. Going a step further,
hospitals should attempt to review any past
lawsuits to determine what happened and
what the results were.
• If a hospital grants temporary privileges or
credentials pending the occurrence of an
event—say, for example, board certifica-
tion—it is imperative that the hospital
make sure the agreed upon conditions are
met before finalizing a physician’s position
with the hospital’s medical staff.
• If an application contains any incomplete
data or gaps in time, the hospital should
question the applicant regarding those.
• Hospitals should complete and review nec-
essary background checks, including crim-
inal.
• Hospitals should require and review clini-
cal activity for the privileges requested to
confirm the physician has the ability to
perform the privileges requested.
• Hospitals should compare any information
independently obtained with the informa-
tion provided by the applicant to ensure the
applicant has completely and accurately
completed their application.
In addition, it is advisable that
hospitals or other healthcare facili-
ties follow Joint Commission guide-
lines. Complying with Joint
Commission guidelines has, in fact,
been sufficient to support entry of
summary judgment in favor of a
hospital. Frigo v. Silver Cross Hosp.
Med. Ctr., 2007 Ill. App. LEXIS 818,
at *60, 2007 WL 2141822 (Ill. App. July 26,
Kentucky Defense Counsel, Inc. commonDEFENSE NEGLIGENT CREDENTIALING
17
In addition,it is advisable
that hospitals or other
healthcare facilities follow
Joint Commission
guidelines. Complying with
Joint Commission
guidelines has,in fact,
been sufficient to support
entry of summary
judgment in favor of
a hospital.

6. 2007) (citing Coleman v. Bessmer Carraway
Methodist Med. Ctr., 589 So. 2d 703, 706 (Ala.
1991)). And when counseling healthcare facili-
ties (or, again, when investigating a potential
claim against a healthcare facility), it is impera-
tive that attorneys become familiar with federal
and state regulations, accreditation standards,
and reimbursement requirements.
Special considerations or circumstances will
need to be addressed with clients. Telemedicine,
for example, has been growing rapidly in all
aspects of healthcare. For rural hospitals,
telemedicine is critical technology that often
serves as a lifeline to keep the facility’s doors
open. See, e.g., mHealthIntelligence website,
Telemedicine, Remote Care May Forestall Rural
Hospital Closure, https://mhealthintelligence.com/
news/telemedicine-remote-care-may-forestall-
rural-hospital-closure (last visited March 21,
2018). Current Centers for Medicare &
Medicaid Services (CMS) guidelines allow facil-
ities using telemedicine to rely on the credential-
ing decisions made by the distant-site
telemedicine entity but require monitoring and
reporting on the telemedicine provider’s per-
formance. See Telehealth Resource Center’s web-
site, Credentialing and Privileging,
https://www.telehealthresourcecenter.org/tool-
box-module/credentialing-and-privileging (last
visited March 29, 2018).
Healthcare is becoming increasingly special-
ized and fragmented. In fact, over half of all
physician visits in the U.S. are with specialists.
Ateev Mehrotra, et al., Dropping the Baton:
Specialty Referrals in the United States, 89
MILBANK Q. 39, 40 (2011). As credentialing-
based claims percolate through Kentucky courts,
more and more specific circumstances will need
to be addressed via healthcare facilities’ policies
on credentialing or privileging.
1. Re-credentialing and Monitoring
Physicians
Initially credentialing a physician and permit-
ting him/her to join the hospital’s medical staff
is only the first step. A hospital must re-creden-
tial the physician on a timely basis (every 2 years
is common) and should monitor the physician
during her time at the hospital to ensure ade-
quate skill and patient safety. The following are
some guidelines for performing these tasks:
• Hospitals should allow sufficient time to
obtain the necessary information to per-
form a thorough review.
• Review any evidence of poor
performance evaluations.
• It is acceptable to monitor a par-
ticular physician via a standard
review process, i.e. regular com-
mittee meetings.
• Perform retrospective evalua-
tions—review medical records of
patients after the physician in question has
provided care to determine if care was
appropriate. Also, it is worthwhile to main-
tain communication with personnel who
are directly involved with the physician.
• External review—send medical records to
an outside entity to review the appropriate-
ness of medical care offered by the physi-
cian. Especially appealing for rural
hospitals with a limited number of physi-
cians qualified to review certain proce-
dures.
• Hospitals should consider actively tracking
patient outcomes for certain procedures or
physicians.
In the end, the decision to re-credential a
physician is reviewed under the same standard
as initial credentialing and should be afforded
the same level of seriousness and thoroughness.
B. Whether to Move to Stay Discovery on
Dependent Credentialing Claim
Recall the Kentucky Supreme Court held hos-
pital claims involving negligence in credential-
ing are “derivative of the medical malpractice
claim against the physician,” which means a
“plaintiff will be unable to prove causation in the
negligence action against the hospital” without
first proving the physician committed malprac-
tice. Adams, 536 S.W.3d at 691-92 (emphasis
added). With that being the case, claims involv-
ing allegations of negligent credentialing should
arguably be treated like bad faith insurance
claims that are sometimes filed concurrently
with an underlying tort or breach of contract
claim and stayed until liability on the underlying
claim is determined. “[T]he power to stay pro-
ceedings is incidental to the power inherent in
every court to control disposition of the causes
on its docket with economy of time and effort
for itself, for counsel, and for litigants.” Landis v.
N. Am. Co., 299 U.S. 248, 254 (1936). “Trial
courts are conferred with broad discretion in
managing discovery in light of the unique fac-
tors present in any particular case.”
Commonwealth v. Wingate, 460 S.W.3d 843, 849
(Ky. 2015). Staying discovery on claims depend-
ent on a finding of primary liability is particu-
larly applicable when “preliminary questions” of
liability can resolve the outcome of the depend-
ent claims, Gettings v. Building Laborers Local,
349 F.3d 300, 304 (6th Cir. 2003), or “where
claims may be dismissed ‘based on legal deter-
minations that could not have been altered by
any further discovery.’” Pollard v. Wood, 2006
U.S. Dist. LEXIS 13459, at *6, 2006 WL 782739
(E.D. Ky. Mar. 27, 2006) (quoting Gettings, 349
F.3d at 304).
Numerous Kentucky courts have stayed dis-
covery on issues concerning third- and first-
party bad faith pending resolution of primary
liability because of the extreme prejudice defen-
dants would otherwise suffer, judicial economy
Kentucky Defense Counsel, Inc. commonDEFENSE NEGLIGENT CREDENTIALING
18
Numerous Kentucky
courts have stayed
discovery on issues
concerning third- and
first-party bad faith
pending resolution of
primary liability because
of the extreme prejudice
defendants would
otherwise suffer,judicial
economy concerns,
litigation expense,or
complicated privilege
issues that may never
arise if primary liability is
not first proven.

7. concerns, litigation expense, or complicated
privilege issues that may never arise if primary
liability is not first proven. E.g., Grange Mut. Ins.
Co. v. Trude, 151 S.W.3d 803, 807 (Ky. 2004)
(“The trial court bifurcated the bad faith claims,
holding the bad faith claim in abeyance until
after the trial on the personal injury claim.”);
Sosa v. State Farm Ins., 2006 Ky. App. Unpub.
366, at *2-3, 2006 WL 2191131 (Ky. App. Aug.
4, 2006) (final, citable opinion under CR
76.28(4)) (“Over Sosa’s objection, the trial court
granted the motion and stayed discovery on the
bad faith claim pending the outcome of the
underlying personal injury claim.”); Pollard,
2006 U.S. Dist. LEXIS 13459, at *5–9 (“The
Court agrees with the reasoning of these cases
and finds that under the circumstances of this
case, staying discovery of the bad faith claims
would prevent prejudice to Defendants and
would further judicial economy.”); Weathers v.
Healthcare Servs. Grp., 2014 U.S. Dist. LEXIS
93069, at *4–5, 2014 WL 3349752 (W.D. Ky. July
9, 2014); Smith v. Allstate Ins. Co., 403 F.3d 401,
407 (6th Cir. 2005) (“Because the merits of the
bad faith claim depended on whether the limi-
tations provision was valid, it was reasonable for
the court to resolve the validity question before
allowing the bad faith claim to proceed.”).
Thus, just as bad faith claims are derivative of
an underlying tort or contract claim and are rou-
tinely stayed, malpractice litigators should con-
sider whether to file a motion to stay discovery
on the dependent hospital credentialing claim
pending a liability determination on the under-
lying physician claim. Doing so considerably
streamlines discovery on claims that will not be
actionable absent physician liability.
C. Bifurcation at Trial
In Adams, the Kentucky Supreme Court
explicitly acknowledged bifurcation as “best
practice.” Adams, 536 S.W.3d at 697 (emphasis
added). Moreover, under CR 42.02, when a trial
court “determines that separate trials will be in
furtherance of convenience or will avoid preju-
dice or will be conducive to expedition and
economy, it shall order a separate trial of any
claim . . . or of any separate issue or of any num-
ber of claims . . . .” CR 42.02 (emphasis added).
“[O]nce a trial court determines that severance
of claims would be helpful, severance is manda-
tory.” Elam v. Smith, 2013 Ky. App. Unpub.
LEXIS 689, at *9, 2013 WL 4508004 (Ky. App.
Aug. 23, 2013) (final, citable opinion under CR
76.28(4)). When determining whether bifurca-
tion is appropriate under Rule 42, trial courts
should “consider several factors, including ‘the
po-tential prejudice to the parties, the possible
confusion of the jurors, and the resulting incon-
venience and economy.’” Wilson v. Morgan, 477
F.3d 326, 339 (6th Cir. 2007) (quoting Martin v.
Heideman, 106 F.3d 1308, 1311 (6th Cir. 1997));
see also O’Connell v. Cowan, 332 S.W.3d 34, 42
(Ky. 2010) (“The Kentucky civil rules closely fol-
low the federal rules and actually are cut from
the federal cloth.”).
Whether or not a stay of discovery is granted
for the credentialing claim, parties should be
vigilant of the procedural concerns that may
arise with bifurcation. It is well-settled that
courts operate with wide discretion during the
voir dire process. Mu’min v. Virginia, 500 U.S.
415, 427 (1991) (“[O]ur own cases have stressed
the wide discretion granted to the trial court in
conducting voir dire in the area of pretrial pub-
licity and in other areas of inquiry that might
tend to show juror bias.”). If the trial court did
not grant a stay of discovery on the credentialing
claim, then during voir dire, the court may
inform the potential jurors that a second phase
may occur depending on their deter-
mination in the first phase. See, e.g.,
Mason v. Mitchell, 95 F. Supp. 2d 744,
767 (N.D. Ohio 2000) (“[A]t the
beginning of voir dire, [t]he trial
court explained that the first phase
of the trial would determine
Petitioner’s guilt or innocence, and
that the second phase of the trial, if
necessary, would determine the penalty.”). The
NEGLIGENT CREDENTIALING commonDEFENSE Kentucky Defense Counsel, Inc.
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8. parties may question the potential jurors about
topics related to the second phase, where the
jury will determine hospital liability and dam-
ages. See Ashcroft v. Tad Resources Int’l, 972
S.W.2d 502, 506 (Mo. App. 1998). In other
words, the parties can conduct a full and com-
plete voir dire concerning both phases of the trial
if a stay was not granted earlier. See, e.g., Estate
of Burton v. Trover, 2011 Ky. App. Unpub. LEXIS
at *11 (Ky. App. June 10, 2011) (“Burton should
have been permitted to conduct a full and com-
plete voir dire initially concerning both phases
of the trial, given that one jury was to hear all
causes of action.”), reversed on other grounds by
Trover v. Estate of Burton, 423 S.W.3d 165 (Ky.
2014); see also 22 CRR-NY 208.35(c) (“During
the voir dire conducted prior to the liability
phase of the trial, if the damage phase of the trial
is to be conducted before the same jury, counsel
may question the prospective jurors with respect
to the issue of damages in the same manner as if
the trial were not bifurcated.”).
Absent a stay of discovery on the credentialing
claim, allocation of fault in a bifurcated proceed-
ing may proceed as usual. At the close of the first
phase, the jury would determine the physician’s
liability but not allocate fault. If necessary, the
jury would proceed to the second phase where it
can then determine whether the hospital was
negligent and is responsible for any of the under-
lying damages resulting from the physician’s neg-
ligence. Plaintiff’s probable claim that allocation
of fault would necessarily be based on only half
of the evidence is inaccurate. In fact, bifurcating
liability and damages in this fashion is fairly com-
mon among bifurcated trials. See, e.g., Witherbee
v. Honeywell, Inc., 151 F.R.D. 27, 29-30 (N.D.N.Y.
1993); In re Bendectin Litig., 857 F.2d 290 (6th
Cir. 1988) (“[M]any courts have upheld cases
bifurcated between liability and damages because
the evidence pertinent to the two issues is wholly
unrelated, and as a logical matter, liability must
first be resolved before the question of damages.”
(citing C. Wright, A. Miller & F. Elliott, Federal
Practice & Procedure, § 2390 at 296-97 (1971 &
Supp. 1987)). If a stay of discovery was previously
granted for the credentialing claim, then the
physician’s fault and damages are assessed during
the initial trial, with a second trial to follow on
the independent claim against the hospital based
on credentialing.
D. Statute of Limitations Issues
Courts that have recog-
nized hospital claims based on cre-
dentialing have struggled with
determining both the applicable
statute of limitations and when the
statute of limitations begins to run.
It is well-known in Kentucky that
any action against a hospital or
physician for negligence or malprac-
tice must be brought within one year
after the cause of action accrues. KRS
413.140(1)(e). Under the discovery rule, a cause
of action accrues “on the date of the discovery of
the injury, or from the date it should, in the exer-
cise of ordinary care and diligence, have been
discovered.” Adams, 536 S.W.3d at 692 (citing
Wiseman v. Alliant Hosp., Inc., 37 S.W.3d 709,
712 (Ky. 2000)). There is no doubt a negligent
credentialing claim must be brought within one
year of accrual, but when does the claim accrue?
In Adams, the Kentucky Supreme Court rea-
soned that negligent credentialing claims’ time
limits operate independently of the underlying
medical malpractice: “This distinction is impor-
tant because it underscores the fact that Jones’s
claim against Spring View did not necessarily
accrue at the same time as her claim against Dr.
Bailey. . . . This argument is flawed because it
conflates the facts which might have given rise
to Jones’s claim against Dr. Bailey with those giv-
ing rise to her claim against Spring View.” Id. at
693 (emphasis added); see also Norgard v. Brush
Wellman, 766 N.E.2d 977 (Ohio 2002)
(acknowledging negligent credentialing and
medical malpractice are distinct claims—there-
fore, while “discovery of the injury and its imme-
diate cause may have been sufficient to trigger
the statute of limitations on the malpractice
claim, they were not sufficient to trigger the
statute of limitations on the negligent credential-
ing claim”).
In other words, when a plaintiff has “actual or
constructive knowledge of the injury which trig-
gers the running of the statute of limitations” for
her medical malpractice claim, she may not have
knowledge of allegations involving credential-
ing. Id. at 692. Unfortunately, Adams provides
no guidance other than indicating the discovery
rule applies. See also Browning v. Burt, 613
N.E.2d 993 (Ohio 1993) (holding statute of lim-
itations triggered when plaintiff “knows or
should have discovered that he or she was
injured as a result of the hospital’s negligent cre-
dentialing procedures or practices”).
Theoretically, a plaintiff could file a hospital
claim involving credentialing, say, five years after
discovering the injury—in other words, the cre-
dentialing allegations could work to revive an
otherwise stale malpractice claim. Because the
hospital claim involving credentialing is deriva-
tive, the plaintiff would still have to prove the
underlying malpractice, despite having no
actionable malpractice claim.3
Or a hospital
claim involving credentialing could be filed
years after a medical malpractice claim. If such
a scenario sounds incredible, it shouldn’t. In
Frigo v. Silver Cross Hospital & Medical Center,
2007 Ill. App. LEXIS 818, 2007 WL 2141822 (Ill.
App. July 26, 2007), for example, the Illinois
Court of Appeals allowed a plaintiff to file a neg-
ligent credentialing claim five years after filing
his complaint because the negligent credential-
ing claim related back to the original complaint.
E. KBML Representative as Witness to Defend
Credentialing Claim
Another consideration for litigators defend-
ing hospital claims involving credentialing is
whether to call as a witness a representative of
the Kentucky Board of Medical Licensure
(KBML) regarding the KBML’s credentialing of
the physician at issue. When the KBML granted
the underlying physician’s medical licensure —
particularly if your underlying co-defendant is
practicing in a specialty, such as surgery —it
knew or should have known that that physician
was not going to practice medicine at a kiosk in
a department store. The KBML knew or should
have known that the underlying physician would
be performing services in a hospital. Therefore,
since the underlying physician was first creden-
tialed and approved for licensure by the KBML,
calling a KBML representative to discuss its
processes and credentialing of the physician at
trial could be a strong defense strategy.
The Kentucky legislature conferred upon the
KBML the sole authority to investigate a physi-
cian’s credentials, including investigation of any
prior substance abuse, malpractice history, crim-
inal history, unethical conduct, mental impair-
ments, improper past billing practices,
out-of-state conduct, or any other potential con-
cern, in order to determine whether a physician
is com-petent to practice medicine in the
Commonwealth. See KRS 311.555, 311.595;
Abul-Ela v. Ky. Bd. of Med. Licens., 217 S.W.3d
246, 250 (Ky. App. 2006); Parrish v. Ky. Bd. of
Med. Licens., 145 S.W.3d 401, 407 (Ky. App.
2004).4
In fact, the KBML indicates such on its
website: “The Board is responsible for approval
and verification of credentials of physicians
applying for licen-sure.” KBML website, licen-
sure page, available at http://kbml.ky.gov/physi-
cian/Pages/default.aspx (last visited Mar. 29,
2018). The KBML per-forms a rigorous investi-
gation into a candidate-physician’s background,
including: requiring fin-gerprinting and a FBI
background check; credentialing, education, and
board-certification checks; an AMA Physician
Profile; a National Practitioner Data Bank check;
investigation of prior licensure in other states;
and investigation of prior practice experience
and reprimands at medical facilities and univer-
sities, just to name a few.5
When defending a healthcare entity, you
should discover the KBML’s licensure applica-
tion and file for the underlying co-defendant
physician at issue. You will likely find a file that
is thick and a credentialing process practically
identical to that of your hospital-client’s file.
With that in hand, take a CR 30.02(6) deposition
of the KBML.
F. Expert Challenges
A hospital claim involving credentialing
“involves a specialized standard of care,” there-
fore requiring expert testimony “to establish lia-
Kentucky Defense Counsel, Inc. commonDEFENSE NEGLIGENT CREDENTIALING
20

9. bility because procedures ordinarily used by a
hospital to evaluate staff privileges are not within
the realm of a juror’s ordinary experience.” Rose
v. Garland Cmty. Hosp., 168 S.W.3d 352, 356
(Tex. App. 2005); see also Frigo v. Silver Cross
Hosp. Med. Ctr., 2007 Ill. App. LEXIS 818, 2007
WL 2141822 (Ill. App. July 26, 2007) (“Expert
testimony as to the applicable standard of care
and what may constitute a violation of that stan-
dard has also been held to be required in negli-
gent credentialing.”) (citing Welsh v. Bulger,
M.D., 698 A.2d 581, 585 (Penn. 1997); Neff v.
Johnson Mem. Hosp., 889 A.2d 921, 928-29
(Conn. App. 2006)). The necessary qualifications
of such an expert are wide-ranging because trial
courts are given such wide discretion in this con-
text. But suffice it to say that individuals with
experience in hospital administration or perhaps
physicians with extensive experience participat-
ing on a credentialing committee are likely
choices. Hospital claims involving credentialing
issues present fertile ground for challenging
whether a designated “expert” is truly an expert,
perhaps more so than traditional medical mal-
practice claims.
“Medical experts are not necessarily creden-
tialing experts. In fact, a credentialing expert
need not be a physician but may be a witness
who is familiar with the standard of care for cre-
dentialing because of training and experience.”
Rose, 168 S.W.3d at 356. In Columbia/JFK
Medical Center, Ltd. v. Sangounchitte, 977 So. 2d
639, 640-41 (Fla. App. 2008), for example, the
Florida Court of Appeals held an expert with an
MBA in hospital and healthcare administration
and former experience as a hospital COO was
qualified, despite the fact that he had not worked
in a hospital for 23 years, not consulted on cre-
dentialing in 5 years, and had no experience
with hospital administration in Florida. Id. at
640-41. The Court focused on the fact that
Florida hospitals were governed by the Joint
Commission’s standards, “as are hospitals all
over the country,” so it was not important the
expert had no Florida experience. Id.
For defendants, it is important simply to
demand that plaintiffs obtain and present expert
testimony regarding the hospital’s alleged breach
of its duty to credential quality physicians. The
Sangounchitte case notwithstanding, it is like-
wise important for both parties to understand
the credentialing process and recognize that an
expert at, say, Johns Hopkins in Baltimore, while
impressive, may not be qualified on the standard
of care for a rural Kentucky hospital. The “acting
in the same or similar circumstances” compo-
nent of the objective standard of care may prove
important with claims involving credentialing
and should be a focus in defending healthcare
entities.
Finally, as of the time of this writing, the con-
stitutionality of medical review panels is pend-
ing before the Kentucky Supreme Court. Under
the MRP Act, after the parties submit their case
to the medical review panel, the panel will issue
an opinion, which will then be reviewed for
admissibility under KRE 702. The Act does not,
however, contain any requirements on the rela-
tionship of panel members’ experience and a
plaintiff’s actual allegations. In other words, a
surgeon could be reviewing a lawsuit challeng-
ing care provided by a healthcare provider spe-
cializing in another area. Defendants may,
therefore, have strong grounds on which to chal-
lenge the admissibility of a panel opinion on a
hospital’s direct liability, i.e., negligence in the
credentialing process, because the panel was
unqualified to offer such an opinion.
G.Causation Defenses
Causation is both an important defense tool
and a key element for plaintiffs arguing negli-
gence in credentialing. Physician negligence is
required. As the Supreme Court noted in Adams,
“[i]f the plaintiff does not prevail in the malprac-
tice action against the physician, a subsequent
trial against the hospital is neither necessary nor
warranted.” Adams, 536 S.W.3d at 697. For prac-
titioners, the Supreme Court will likely never be
as clear as it was in Adams. Going forward, hos-
pital defense counsel must focus on the physi-
cian’s medical care perhaps more than in the
past—after all, a negligent credentialing claim “is
illusory absent negligent medical treatment.”6
H.Discovery/Evidentiary issues
1. Discovery will likely expand, rendering
medical malpractice actions even more expen-
sive and time-consuming
Hospital claims involving credentialing issues
will broaden permissible discovery and create
myriad admissibility issues. As mentioned pre-
viously, bifurcation is necessary because a physi-
cian’s past will now be laid bare before the jury
in an attempt to prove a healthcare facility was
negligent in permitting the physician to be a part
of its medical staff. It would be virtually impos-
sible for a physician to receive a fair trial if that
evidence were permitted in a single proceeding
alongside the physician’s medical care that
allegedly caused a plaintiff’s injury. And where
hospitals could previously argue that policies,
bylaws, credentialing files, etc., were not rele-
vant, such challenges become much more diffi-
cult in the face of negligent credentialing
allegations. The result is that medical malprac-
tice actions with a credentialing component will
be more expensive and time-consuming than
actions without credentialing issues. This
expanded scope coupled with the MRP Act’s
condensed timelines will further intensify the
burdens of discovery in these actions. Practically
speaking, attorneys should be prepared to chal-
lenge such expanded discovery as unduly bur-
densome or not proportional to the needs of the
case (if in federal court).
2. Kentucky has now enacted a peer-review
privilege applicable to credentialing, but such a
privilege may be a double-edged sword
It is imperative that peer review discussions
be candid and the participants believe them to
be confidential. Kentucky does have a peer-
review privilege statute, KRS 311.377, but it has
been interpreted as constitutionally inapplicable
to medical malpractice suits. Sisters of Charity
Health Systems v. Raikes, 984 S.W.2d 464, 469-
70 (Ky. 1998); McGuffey v. Hall, 557 S.W.2d 401
(Ky. 1977). Instead, according to these decisions,
the statutory privilege only applies in suits
against peer-review entities. Raikes, 984 S.W.2d
at 470. Until recently, Kentucky had failed to
pass a statute clearly protecting peer-review dis-
cussions, including credentialing matters, in
medical negligence actions.
In the 2018 Regular Session, the General
Assembly passed House Bill 4, which amended
KRS 311.377(2) to read as follows
(additions in italics):
At all times in performing a des-
ignated professional review func-
tion, the proceedings, records,
opinions, conclusions, and rec-
ommendations of any committee,
board, commission, medical staff,
professional standards review
organization, or other entity, as
NEGLIGENT CREDENTIALING commonDEFENSE Kentucky Defense Counsel, Inc.
21
“Medical experts are not
necessarily credentialing
experts. In fact,a
credentialing expert need
not be a physician but
may be a witness who is
familiar with the standard
of care for credentialing
because of training and
experience.”

10. referred to in subsection (1) of this section
shall be confidential and privileged and
shall not be subject to discovery, subpoena,
or introduction into evidence, in any civil
action in any court, including but not lim-
ited to medical malpractice actions, actions
arising out of review of credentials or retro-
spective review and evaluation as referred to
in subsection (1) of this section, and actions
by an applicant for or grantee of staff privi-
leges as referred to in subsection (1) of this
section . . . . H.B. 4 (2018) (available at:
h t t p : / / w w w . l r c . k y . g o v /
recorddocuments/bill/18RS/HB4/bill.pdf).
The bill takes effect on July 13, 2018. This is a
sizable shift in Kentucky law because, as men-
tioned above, Kentucky’s peer-review privilege
had previously been interpreted as unconstitu-
tional when applied to medical malpractice
actions. Now KRS 311.377 explicitly applies to
medical malpractice actions, including those
arising out of credentialing decisions.
Challenges to this law should be expected from
the plaintiffs’ bar based on arguments that
Raikes applies regardless of specific language in
the statute and that an absolute privilege applied
to medical negligence actions would violate the
jural rights doctrine. See Ky. Const. §§ 14, 54,
and 241; Perkins v. N.E. Log Homes, 808 S.W.2d
809, 815–17 (Ky. 1991). However, the new lan-
guage in the statute provides a significant litiga-
tion tool for healthcare defendants to protect
peer review materials from disclosure in medical
negligence actions.
In addition, the federal government enacted
the Health Care Quality Improvement Act
(HCQIA) as a peer-review privilege. 42 U.S.C §
11101. The HCQIA requires hospitals and its
professional review committee to meet certain
standards when making credentialing decisions.
A hospital is presumed to have met those stan-
dards unless the plaintiff rebuts the presumption
by a preponderance of the evidence. 42 U.S.C. §
11112(a)(4). An argument can be made, there-
fore, that the HCQIA pre-empts a negligent cre-
dentialing claim as long as the hospital meets all
the standards set forth in the Act: if “a profes-
sional review body meets all the standards spec-
ified in [the Act] . . . the professional review
body . . . shall not be liable in damages under any
law of the United States or of any State with
respect to the action.” 42 U.S.C. § 11111(a)(1).
Courts in other states have rejected this argu-
ment, but it has yet to be addressed by Kentucky
courts.7
Beyond the privilege protection afforded
to peer-review documents, the HCQIA may pro-
vide grounds for summary judgment. See
Kauntz v. HCA-HEALTHONE, LLC, 174 P.3d
813, 818 (Colo. Ct. App. 2007).
In any event, an absolute peer-review privi-
lege and the developments in this area are litiga-
tion tools of which defense attorneys should be
keenly aware and readily deploy. A dose of cau-
tion is, however, appropriate. An absolute privi-
lege in the credentialing context could be a
double-edged sword, if a hospital seeks to use its
credentialing materials in its defense but is then
deemed to have waived the statutory privilege.
Some courts, however, have refused to recognize
a waiver in such circumstances, viewing the con-
fidentiality of the peer review process as more
important than an individual hospital’s attempt
to defend against allegations of negligence. See
Ayash v. Dana-Farber Cancer Inst., 822 N.E.2d
667, 692 n.28 (Mass. 2005) (“In our view, apply-
ing waiver principles to peer review communi-
cations would significantly undermine the
effectiveness of the statute.”). But the conse-
quence of such a ruling is somewhat odd: a
plaintiff cannot obtain access to peer-review
documents, but, at the same time, a hospital with
a potentially justifiable reason for credentialing
a physician cannot use peer-review evidence to
defend itself. At bottom, defense attorneys will
need to pay close attention to the development
of the scope of any privilege in the credentialing
context in the context of Kentucky’s current peer
review statute and the HCQUIA.
Kentucky Defense Counsel, Inc. commonDEFENSE NEGLIGENT CREDENTIALING
1
The Kentucky Supreme Court did not recognize a standalone tort called “negligent credentialing.” However, for ease of reference in this article, the term “negligent credentialing” will be used as a general
descriptor of all negligence allegations against a healthcare facility for its own negligence in selecting or supervising its medical staff.
2
Humana Med. Corp. of Ala. v. Traffanstedt, 597 So. 2d 667, 668-69 (Ala. 1992); Fletcher v. S. Peninsula Hosp., 71 P.3d 833, 842 (Alaska 2003); Tucson med. Ctr., Inc. v. Misevch, 545 P.2d 958, 960 (Ariz. 1976);
Elam v. College Park Hosp., 132 Cal. App. 3d 332 (Cal. App. 1982); Kitto v. Gilbert, 570 P.2d 544, 550 (1977); Insinga v. LaBella, 543 So. 2d 209, 214 (Fla. 1989); Mitchell Co. Hosp. Auth. v. Joiner, 189 S.E.2d
412, 414 (Ga. 1972); Domingo v. Doe, 985 F.Supp. 1241, 1244-45 (D. Haw. 1997); May v. Wood River Twp. Hosp., 629 N.E.2d 170, 171 (Ill. 1994); Winona Meml. Hosp., Ltd. P’ship v. Kuester, 737 N.E.2d
824, 828 (Ind. App. 2000); Baublitz v. Pen. Regl. Med. Ctr., 2010 WL 3199343, at *6 (D. Md. Aug. 12, 2010); Ferguson v. Gonyaw, 236 N.W.2d 543, 550 (1975); Larson v. Wasemiller, 738 N.W.2d 300, 313
(Minn. 2007); Taylor v. Singing River Hosp. Sys., 704 So. 2d 75, 78 at n.3 (Miss. 1997); Brookins v. Mote, 292 P.3d 347, 361 (Mont. 2013); Corleto v. Shore Meml. Hosp., 350 A.2d 534, 537-38 (N.J. Sup. 1975);
Diaz v. Feil, 881 P.2d 745, 749 (N.M. App. 1994); Sledziewski v. Cioffi, 137 A.2d 186 (N.Y. App. 1988); Blanton v. Moses H. Cone Meml. Hosp., Inc., 354 S.E.2d 455, 458 (N.C. 1987); Albain v. Flower Hosp.,
553 N.E.2d 1038, 1045 (Ohio 1990); Strubhart v. Perry Meml Hosp. Trust Auth., 903 P.2d 263, 276 (Okla. 1995); Welsh v. Bulger, 698 A.2d 581, 586 (Pa. 1997); Rodrigues v. Miriam Hosp., 623 A.2d 456,
462-63 (R.I. 1993); Crumley v. Meml. Hosp., Inc., 509 F. Supp. 531, 535 (E.D. Tenn. 1978); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 545-46 (Tex. 2004); Wheeler v. Cent. Vt. Med. Ctr., Inc., 582 A.2d
165, 166 (Vt. 1989); Pedroza v. Bryant, 677 P.2d 166, 168-70 (Wash. 1980); Roberts v. Stevens Clinic Hosp., Inc., 345 S.E.2d 791, 798 (W.Va. 1986); Johnson v. Misericordia Cmty. Hosp., 301 N.W.2d 156, 164
(Wisc. 1981); Greenwood v. Wierdsma, 741 P.2d 1079, 1088 (Wyo. 1987).
3
In addition to forcing a physician through burdensome litigation over a years-old incident, tardy negligent credentialing claims may lead to hospitals seeking common law indemnity from the physician
because the physician was arguably the primary cause of the plaintiff’s injury. See Fireman’s Fund, Ins. Co. v. Bennett, 635 S.W.2d 482, 485 (Ky. App. 1981).
4
See also KBML website, homepage, available at https://kbml.ky.gov/Pages/index.aspx (last visited Mar. 29, 2018) (The KBML “is responsible for . . . ensuring that only qualified medical and osteopathic
physicians are licensed and initiating disciplinary action when violations of the Medical Practice Act occur.”).
5
See KBML application, license instructions, FCVS sample packet, example FBI background form, AMA Physician Profile example, and National Practitioner Data Bank example.
6
Rose, 168 S.W.3d at 359; see also Schelling v. Humphrey, 916 N.E.2d 1029, 1037 (Ohio 2009) (“If the fact-finder determines that negligence of the doctor was not the proximate cause of the
plaintiff’s injury, then a hospital’s grant of staff privileges to a doctor is not the cause of the plaintiff’s injury.”); Ladner v. Northside Hosp., 723 S.E.2d 450, 455 (Ga. App. 2012) (holding that
even if the hospital was negligent in credentialing the doctor, where there was no evidence of medical negligence, the plaintiff cannot establish a causal connection between the credentialing
process and the plaintiff’s postoperative complications and death); Martinez v. Park, 959 N.E.2d 259, 271 (Ind. App. 2011) (“[T]o succeed on a negligent credentialing claim, the plaintiff
must show that the physician to whom the hospital allegedly negligently extended privileges breached the applicable standard of care in treating the plaintiff and prox-imately caused her
injuries.”); Trichel v. Caire, 427 So. 2d 1227, 1233 (La. App. 1983) (holding that where there was no negligence on the part of the doctor, “the hospital’s granting of such privileges to [the
doctor] did not cause [the plaintiff’s] complications”); Oehler v. Humana, Inc., 775 P.2d 1271, 1272 (Nev. 1989) (holding that plaintiff’s complaint against the hospital stated a cause of action
for negligent supervision of a nonemployee physician where it alleged that the physician provided medical care with the hospital’s knowledge, aid and assistance, both the physician’s care
and the hospital’s supervision were negligent, and such negligence proximately caused the plaintiff’s injuries); Hiroms v. Scheffey, 76 S.W.3d 486, 489 (Tex. App. 2002) (“If the physician is not
negligent, there is no negligent credentialing claim against the hospital.”)
7
The parties briefed HCQIA preemption in Adams, but the Court did not reach that argument.
22
Joey A.Wright is an associate at
Thompson Miller & Simpson
PLC in Louisville, practicing
primarily in the areas of med-
ical-malpractice defense, appel-
late practice, professional
licensure de-fense, and business litigation. Before
joining Thompson Miller & Simpson, Joey clerked
for Chief Justice John D. Minton, Jr., on the
Kentucky Supreme Court. Joey was a co-author of
the hospital-defense briefs filed in the Adams
appellate litigation before the Kentucky Supreme
Court. Joey is a member of KDC.
Chad O. Propst is a partner at
Thompson Miller & Simpson
PLC, in Louisville, and practices
in the areas of medical-malprac-
tice defense, appellate practice,
professional licensure defense,
and business litigation. He also
consults with hospitals on their internal policies,
proce-dures, and reporting documentation. Chad
was lead author of the hospital-defense briefs filed
in the Adams appellate litigation before the
Kentucky Court of Appeals and Kentucky Supreme
Court. He is a member of KDC and DRI.

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