Am I liable for my covering physician's alleged negligence

February 5, 2015

Dr. Skin, a dermatologic surgeon and head of a resident training program at a well-recognized academic center performed a surgical excision on a patient's eyelid growth. The patient called in the evening with concerns about her vision and spoke with Dr. Skin's covering physician who assured her that was not unusual. In the morning, the patient's vision was gone. She sues both Dr. Skin and his covering physician. Is Dr. Skin liable?

Dr. Skin, a dermatologic surgeon and head of a resident training program at a well-recognized academic center performed a surgical excision on an eyelid growth on Mrs. Smith. Mrs. Smith is a healthy 50-year-old woman, and she is not on any medication. Her visual acuity, prior to the procedure, was corrected quite easily with contact lenses. The surgical procedure went smoothly and lasted less than one hour. The patient left the office without any difficulty at 11 a.m. in the morning. At 4 p.m., Dr. Skin called Mrs. Smith to check on her post-operative course. She reported some ecchymosis, but otherwise no difficulties. At 6 p.m., Dr. Skin called his covering physician (Dr. Ecchymosis) and signed out to him. He discussed Mrs. Smith’s surgery with Dr. Ecchymosis.

At 8 p.m., Mrs. Smith called Dr. Skin’s office with a concern about her surgery. Dr. Skin’s answering service immediately paged Dr. Ecchymosis, the covering physician. Dr. Ecchymosis returned the page within 15 minutes. In their discussion, Mrs. Smith described the ecchymosis. She also now described significant blurring of vision in her right eye. When she tried to correct her vision with an old set of glasses, she found no improvement. Dr. Ecchymosis discussed the situation with Mrs. Smith and reassured her that such findings are not unusual. He suggested she try to go to sleep and call Dr. Skin in the morning.

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The next morning, Mrs. Smith awakened to find she had no vision in her right eye. She immediately returned to Dr. Skin’s office and from there was sent to an ophthalmologist. He noted that she had evidence of a retrobulbar hemorrhage. Although, he immediately performed surgery to correct the problem, the blindness was permanent. Had Dr. Skin and/or Dr. Ecchymosis made the correct diagnosis and referred his patient for immediate surgery, the blindness would have been prevented.

Mrs. Smith brings a negligence cause of action against both Dr. Skin and the covering physician, Dr. Ecchymosis. The basis of her case against Dr. Skin is that he was in a “joint-venture” with Dr. Ecchymosis. After all, they cover each other’s practices every night. It should be noted that there are no payments made for the cross-coverage and the two practices share neither staff nor facilities.

Is Dr. Skin liable?

 

 

Is Dr. Skin liable?

The answer will generally depend on the acts of the on-call physician who allegedly committed the act of negligence, as well as applicable law. Imputing of Dr. Skin’s liability in this situation will generally turn on the degree to which the actions of the on-call physician were influenced or controlled by Dr. Skin. For example, if the on-call physician consulted with Dr. Skin and, in reliance on his judgment, injured Mrs. Smith, liability might be attached to both physicians. However, the mere fact that at various times different physicians are on-call for the same patients, will not typically expose them to liability for the acts of a physician who was allegedly negligent during his or her on-call shift.

A joint venture is typically defined as two or more parties combining property and/or services in a joint undertaking for profit with the rights of mutual control.

All joint venturers may be held liable for actions of individual venturers. Physicians who share on-call are not usually considered to be engaged in a joint venture that would subject them to liability for each other’s actions.

Considering precedent

In Rossi v. Oxley, 495 SE2d 39 (Ga 1998), a patient sued a physician who participated in an on-call arrangement with other independent physicians. Each on-call physician billed patients directly for any services provided. The Georgia Supreme Court held that a joint venture did not exist between the physicians. Liability could not be extended on the basis of a simple on-call arrangement. The court noted that the mutual control element was not satisfied since the patient’s physician could not control the on-call physician’s judgment in treating the patient.

In addition, the court noted, even if it could be argued that both physicians “controlled” the patient, it would reject any vicarious liability for sharing of on-call duties for public policy reasons. A finding of liability, the court noted would discourage the practice of on-call arrangements and therefore decrease the availability of quality care, increase costs or both.

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Had Dr. Skin chosen a Dr. Abdomen, a general surgeon as the on-call physician, a cause of action in negligence may be present against Dr. Skin. In this case, the question becomes one of Dr. Skin’s duties in providing on-call coverage for his patients. Dr. Skin had a duty to provide a covering physician that understands the dermatologic surgical procedure and its potential complications. If the general surgeon would not generally be expected to understand the surgical procedure and its complications, Dr. Skin may have breached his duty of reasonable care to Mrs. Smith by providing Dr. Abdomen as a covering physician. If that breach in duty led to the blindness, then Dr. Skin would be also be liable for the negligence.  

A similar situation would exist in a multispecialty group where there is often cross-coverage for on-call duty. In such a situation, Dr. Skin might have no control over the choice of the covering physician. If the doctor on call was a vascular surgeon, Dr. Skin might not be able to escape liability for a negligent cause of action imputed to the vascular surgeon. In such a situation, Dr. Skin would be better to follow his own patients.

Resident responsibility

 

Resident responsibility

In training programs, it is not unusual to have resident or fellow physicians “cover” for senior faculty physicians. In that situation the resident employee physician is often paid a salary during their training program. Occasionally, though, the training physician is not paid for the position. In either situation, if the trainee physician errs, the supervising physician might share liability with the training physician. In this situation, the laws of agency apply. The threshold question becomes one of whether the trainee physician is an agent of the supervising physician. If the trainee was performing an act that was in the scope of his “employment” as a trainee physician, and it was in the furtherance of this employment relationship, then he is an agent of the supervising physician. In a cause of action against both physicians for negligence, both physicians might share culpability. If the trainee undertakes actions that are not in his role as an agent, then the trainee himself will have sole liability.

In the hypothetical situation described above, the fact pattern could be changed to one of Dr. Ecchymosis being a resident in training under Dr. Jones. If evaluating post-excision patients is in the scope of Dr. Ecchymosis’ employment, and he performs a negligent act, then both Dr. Skin and Dr. Ecchymosis will share liability. If, Dr. Ecchymosis performs an act not within the scope of his training, or his employment with Dr. Skin, then Dr. Skin will escape culpability. Dr. Ecchymosis will be solely liable.

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If in another example, an ophthalmology practice contains both general ophthalmologists and one oculoplastic surgeon, liability would rest on both the treating cosmetic surgeon and the covering general ophthalmologist if the retrobulbar hemorrhage was not recognized by the general ophthalmologist.

The same precarious situation can potentially occur in a dermatology practice. A typical “group practice” situation might have a cosmetic surgical dermatologist, several general dermatologists and a dermatopathologist/dermatologist. On a typical day, the surgical dermatologist might perform a liposuction procedure under general anesthesia. The “partner” dermatopathologist/dermatologist on-call that evening might know nothing about liposuction. If the patient developed complications from the procedure, the significance of which would have been minimized by early detection, then liability will be shared between both the covering dermatopatholgist and the surgical dermatologist. The surgeon will not be able to suggest that it was not his turn for coverage. In such a practice, coverage for surgical procedures might be best undertaken by those with expertise in those areas.