Current medical practice involves increasingly complicated relationships among providers of medical care who are separated into roles defined by specialty as well as business relationships. When medical malpractice complaints include multiple defendants, it is not clear at the outset what diverse duties the various providers may have. Discovery will remove some but not all of the uncertainty, but the first test of the sufficiency of the claims against some or all of the defendants may not come until after discovery is completed and summary judgment motions are made.

In the context of a number of motions for summary judgment, the court is faced with competing arguments supported by expert witness affidavits, most of which debate whether there are questions of fact for a jury to determine. In the presence of extensive submissions with competing expert opinions, it is tempting to question how there could not be issues of fact. However, the first question as to each defendant is whether there was a duty to the patient which would have been violated if the claim otherwise has merit.

One area where the duty issue has received attention is where the primary care physician becomes involved in a case in which her patient has sustained injury in the course of specialty care. The frequently cited case in this regard is Markley v. Albany Medical Center, 163 A.D.2d 639 (3d Dept. 1990), in which a child's pediatrician admitted the patient to the hospital where a resident mistakenly administered an overdose of chemotherapy. Despite an expert affidavit which supported the claim against the pediatrician, the court found that the assumption of general pediatric care did not create a duty to supervise treatment of a specialty nature. Because the pediatrician exercised no authority or control over the administration of chemotherapy, the denial of summary judgment was reversed on appeal and the complaint against the pediatrician was dismissed.

More recently, in Burtman v. Brown, 97 A.D.3d 156 (1st Dept. 2012), the court reversed a denial of a summary judgment motion of the internist and dismissed the complaint on her behalf. The court found that there was no duty on the part of the primary care physician to supervise or override a course of treatment initiated by the patient's obstetricians. Although the trial court had relied upon the plaintiff's expert affidavit that the moving defendant had deviated from the standard of accepted medical practice, the court found that opinion to be irrelevant. Whether a defendant doctor owes a plaintiff a duty of care is a question for the court and is generally not an appropriate subject for expert opinion. There is no role for the plaintiff's expert until the court has determined the existence of a duty.

In the case of Boone v. NSUH Forest Hills, 12 A.D.3d 338 (2d Dept. 2004), the court affirmed the dismissal of the complaint as against a urologist who referred the patient to a qualified surgeon after locating a liver metastasis at surgery which he was not qualified to remove. In the course of the surgeon's efforts, the patient experienced massive bleeding resulting in her death. The court agreed with the argument advanced by the urologist that his duty should be limited to the functions undertaken between him and his patient. It was further agreed that his duty of care did not extend to cover the treatment rendered by the surgeon.

The willingness of the courts to examine the duty issue between concurrent surgeons is also seen in Fortich v. Ky-Miyasaka, 102 A.D.3d 610 (1st Dept. 2013), in which the court was faced with a situation where the patient experienced a surgical complication which followed a procedure during which separate surgical teams had been involved. Despite the expert affidavit of the plaintiff, which the court termed “insufficient”, the plastic surgeon who closed the patient's surgical wound was found to have no duty to the patient either on the malpractice issue or the informed consent claim. The patient's bowel perforation was more likely a consequence of the surgery by the gynecologists, which was at a deeper surgical plane. The court affirmed the dismissal based upon its finding that the duty of the plastic surgeon was limited to the medical functions which he undertook.

Likewise, in Kleinert v. Begum, 144 A.D.2d 645 (2d Dept. 1988), the moving defendant was an attending obstetrician who had examined a hospital patient two hours before delivery of what was anticipated to be a large infant. There was no other medical issue at the time. The attending left the hospital, and the patient and her infant were claimed to have sustained injuries during the delivery by residents two hours later. The court found that the attending obstetrician had the right to rely upon the other personnel responsible for the patient, and limited her duty to the professional propriety of her single examination. Her involvement, near in time to the delivery of what was expected to be a large infant, did not create a further duty to supervise or participate in the management of the patient. Dismissal on her summary judgment motion was sustained.

Although the trial court and the Appellate Division agreed in Graddy v. New York Medical College, 19 A.D.2d 426 (1st Dept. 1963), that physician duty is a question of law, the courts came to differing conclusions on a fact pattern where two surgeons shared an office and staff. Each had his own patients, but their coverage agreement allowed for shared fees when one rendered services to the patient of the other. The referring surgeon had advised the patient against surgery, but during the surgeon's illness the patient came under the care of his colleague and allegedly sustained injuries at surgery. The trial court held the referring doctor vicariously liable for the active negligence of his colleague, but the Appellate Division disagreed, citing the highly individualized independence of judgment inherent in medical care. The appellate court held that even in the presence of the fee sharing agreement, the referral by one physician to a colleague who had no agency, employment or partnership relationship with him did not create vicarious liability on the part of the referring doctor. The court found that the dispositive issue was the degree of control of the doctor against whom vicarious liability was sought to be imposed, rather than the disposition of the fees for services.

The Graddy decision was cited with approval 25 years later in the Court of Appeals decision of Kavanaugh v. Nussbaum, 71 N.Y.2d 535 (1988), which arose out of another coverage arrangement. In that case the obstetricians were independent practitioners with their own offices and patients, but would treat each other's patients under a coverage agreement which provided no fee for services to the covering doctor. The arrangement was known and approved by the hospital, whose emergency room doctor called the covering doctor directly without the knowledge or direction of the patient's regular obstetrician. The trial court had submitted a question of fact to the jury as to whether the arrangement between the two doctors was such that the negligence of one should be imputed to the other, and the jury had responded affirmatively. The Court of Appeals affirmed that the line of cases supporting the determination of Graddy was still valid. The guiding principle remained unchanged and vicarious liability for medical malpractice turns on control in fact or the right to control under partnership, employment, or agency law.

There is a particularly strong line of cases involving radiologists who interpret imaging in the course of diagnostic workup but rarely provide direct patient care and frequently do not interact with patients directly. The limited role of the radiologist is succinctly described in Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986), a case in which the radiologist informed the gastroenterologist who ordered the study that the patient's barium enema showed a cecal neoplasm. The patient was not informed and was discharged with the mistaken diagnosis of gastroenteritis. Summary judgment was denied at Special Term and affirmed by the Appellate Division which sent the case to the Court of Appeals on a certified question. Justice Alexander wrote the decision for a unanimous court reversing the lower courts and granting the radiologist summary judgment. Although counsel for the plaintiff argued that the defendants had violated every known medical standard in existence at the time of treatment, the court declined to extend the duty of the radiologist beyond the obligation he fulfilled by correctly interpreting and documenting the findings of the barium enema.

The same reasoning exonerated a sonographer in Giberson v. Panter, 286 A.D.2d 217 (1st Dept. 2001), where the court was reluctant to extend the duty of the sonographer to investigation of the congenital problems of a fetus in utero beyond the reporting of normal fetal growth for which the sonogram was ordered. Similarly in Wasserman v. Staten Island Radiological, 2 A.D.3d 713 (2d Dept. 2003), the expert witness for the plaintiff maintained that the defendant radiologist had failed to diagnose reflex sympathetic dystrophy but the court found no duty beyond that of the radiologist to interpret the films ordered to report upon the presence of fracture or dislocation.

More specifically the court in Mosezhnik v. Berenstein, 33 A.D.3d 895 (2d Dept. 2006), a claim supported by plaintiff's radiology expert was dismissed based on a limitation of the duty of the mammographer to the interpretation and documentation of mammography findings. Despite the claim that the radiologist was in part responsible for a delay in diagnosis of breast cancer, the court declined to extend the duty of the radiologist to schedule or urge further testing or participate in the diagnosis of the patient's medical condition.

Conclusion

If the legal duties of the providers of complex medical care are expanded to the point where they overlap one another, the ensuing chaos will not serve the patient or society. The courts of New York State have consistently maintained that the duty owed by one member of society to another is a legal issue to be determined by the courts [DeAngelis v. Lutheran Medical Center, 58 N.Y.2d 1053 (1983); Eiseman v. State, 70 N.Y.2d 175 (1987)]. Careful attention needs to be directed toward the development of information on the roles of the participants in the subject medical care so that the duty issue may be isolated and addressed before the picture becomes obscured by competing factual claims.

John L.A. Lyddane is a partner at Dorf & Nelson who has extensive experience in jury trials of technically complicated liability matters, including professional liability cases and construction-related lawsuits.