News: A female patient underwent two surgeries on her right eye at a medical facility. The surgeries caused her to suffer significant vision loss. Both were performed by a board-certified ophthalmologist formerly employed by that facility. The surgeon who had been treating the patient and recommended the surgical course of treatment was a junior physician and shared an office with a more senior ophthalmologist.
The patient brought suit against the facility and both ophthalmologists. In her claim against the senior physician, who had not performed any of the surgeries but was the more experienced physician in the practice, the patient argued that he should be found liable under both negligence and vicarious liability theories. The senior physician argued that since he was not involved in the treatment and was not required to supervise the treating physician, he owed no duty to the patient. The court agreed with the senior physician and found that he could not be liable.
Background: The patient had been advised by an ophthalmologist to undergo two eye surgeries. Her course of treatment had been exclusively decided by this physician, who was a board-certified ophthalmologist and had been treating her during her time as a patient at a medical facility. As a result of the surgeries, the patient suffered serious injuries that resulted in substantial loss of vision. The patient brought suit against the physician, the medical practice group, and the senior ophthalmologist in the practice, who shared an office with the patient’s physician.
The patient alleged that the senior physician had negligently supervised the junior physician and that the senior physician deviated from the applicable standards by failing to assist the junior physician during the eye surgeries. The patient also argued that the senior physician should be found vicariously liable for the junior physician’s actions because his seniority imposed a duty to supervise the younger, less experienced physician who worked in the same practice. The senior physician brought a motion for summary judgment in which he argued that because he had never treated the patient, he did not owe her any duty of care and thus could not be found liable for medical malpractice. The trial court denied the motion, and the senior physician appealed.
On review, the appellate court reversed the trial court’s denial and established that the senior physician could not be found liable for the damages caused by the treating physician. The appellate court stated that in order to be found liable, a duty of care between the senior physician and the patient must first be established. Because the senior physician played no role in the patient’s treatment and did not have a duty to supervise the treating physician in her treatment of the patient, the court found that the senior physician could not be liable.
What this means to you: This matter provides several insights as to the duty of care in medical malpractice suits, the legal relationships among physicians working within the same practice or at the same facility, the respective burdens of proof, and the roles of expert opinion testimony. While the patient alleged that the senior physician owed a duty of care, the court found no such duty existed as a result of the lack of any connection between the physician and patient.
According to the court, in a medical malpractice claim, the burden to prove that the defendant deviated from the accepted standard of practice and that such deviation proximately caused the injuries sustained lies on the plaintiff. In an attempt to satisfy this burden, the patient offered into evidence expert testimony by an ophthalmologist who stated that the senior physician had failed to supervise the junior physician. Specifically, the expert opined that the senior physician failed to confirm the appropriateness of the junior physician’s surgical recommendations to the patient and did not follow up with the patient after her surgeries.
The court recognized that expert testimony is necessary to prove a deviation from the accepted standards of medical care and to establish proximate cause but acknowledged that this question is secondary and inherently linked to the question of whether a general duty of care exists and is owed by the physician.
This foundational question — whether a duty of care exists — is legal and requires no expert opinion, according to the court. Thus, while the expert opinion offered into evidence by the patient would have been considered by the court to resolve the question of whether the senior physician had a duty to supervise for this specific procedure, the lack of evidence showing that he owed the patient a general duty of care mooted that question and led the court to rule in favor of the defendant. In this case, the senior physician submitted into evidence the patient’s medical chart which, along with the junior physician’s and the patient’s deposition testimony, confirmed that the senior physician had no role in the patient’s treatment.
Vicarious liability is another important doctrine applicable to medical malpractice cases, and it was unsuccessfully argued for in this case.
Under the theory of vicarious liability, employers may be found responsible for the wrongful acts of their employees when such acts occur within the scope of employment. In this case, the patient attempted to argue that the senior physician was vicariously liable for the junior physician’s actions as a result of the two being within the same medical practice. Fortunately for the senior physician, the court found that because the junior physician was a board-certified ophthalmologist, the senior physician had no obligation to supervise the junior physician’s work.
This decision confirms existing case law regarding relations among physicians working in the same medical practice group and sets the ground rules for establishing the existence of a duty of care in a medical malpractice case. This appellate court confirmed that physicians who merely work within the same medical practice do not owe patients a general duty of care unless they actively partake in the patients’ treatment.
For colleagues, including those who may be more experienced than others, vicarious liability imposes responsibility vertically, based upon the employer-employee relationship, rather than horizontally.
Physicians thus may take solace knowing that mere employment by a medical practice or facility will generally not impose personal liability for the actions of a co-worker, absent direct and active involvement with the circumstances giving rise to liability.
Decided on July 5, 2018, in the Appellate Division of the Supreme Court of the State of New York; Case Number 2017-09841.