HMO can be sued for `institutional negligence'.

The Illinois Supreme Court ruled an HMO may be sued for "institutional negligence," on the grounds that it so overloaded a doctor with patients that he committed malpractice. (Jones v. Chicago HMO Ltd. of Illinois, No. 86830, 2000 WL 637290 (Ill. May 18, 2000).) The court is believed to be the first to address this issue.

The case alleged that Chicago HMO Ltd. of Illinois "overloaded" Dr. Robert Jordan with 6,500 patients, which caused the doctor to delay returning a phone call that the plaintiff, Sheila Jones, made when her three-month-old daughter became ill. Although Jordan returned the call later that night, he didn't ask her to bring the child in. When Jones took her daughter to the emergency room the next day, the child was diagnosed with bacterial meningitis, which has permanently disabled her.

Jones sued the HMO in Cook County Circuit Court, alleging that the organization was negligent in assigning the doctor more patients than he could handle and that its procedure that required patients to call for an appointment before visiting the doctor's office or an emergency room was negligent. The state supreme court reversed the lower court's summary judgment as to institutional negligence and remanded the claim to the court for trial.

The theory of institutional negligence, also known as direct corporate negligence, would make the HMO responsible for care provided by doctors in its networks. In his opinion, Supreme Court Judge Michael Bilandic cited Darling v. Charleston Community Memorial Hospital, in which the state recognized that hospitals can be held liable for institutional negligence. (211 N.E.2d 253 (Ill. 1965).)

"HMOs, like hospitals, consist of an amalgam of many individuals who play various roles in order to provide comprehensive health care services to their members," wrote Bilandic. "Moreover, because HMOs undertake an expansive role in arranging for and providing health care services to their members, they have corresponding corporate responsibilities as well."

The judge agreed with the plaintiff's allegations that an HMO that overloads its doctors with patients might cause harm. He wrote, "HMOs contract with primary care physicians in order to provide and arrange for medical care for their enrollees. It is thus reasonably foreseeable that assigning an excessive number of patients to a primary care physician could result in injury, as that care may not be provided."

Jones has also filed a medical malpractice case against Jordan.