He Is my Covering Physician. Why Am I Being Sued?

Dermatology Times, Dermatology Times, August 2022 (Vol. 43. No. 8), Volume 43, Issue 8

In this month's Legal Eagle, David J. Goldberg, MD, JD, discusses a legal situation involving an oculoplastic surgeon and a covering physician.

Dr Jones, an oculoplastic surgeon, performed a bilateral transconjunctival blepharolplasty procedure on Mrs Smith. Smith is a healthy 50-year-old woman and is on no medications. Her visual acuity, prior to the procedure, was corrected easily with contact lenses. The blepharoplasty procedure went smoothly and lasted less than an hour. The patient left the ambulatory surgical facility without any difficulty at 11 AM. At 4 PM, Jones called Smith to check on her postoperative course. She reported some ecchymoses but otherwise no difficulties. At 6 PM, Jones called his covering cosmetic dermatologic surgeon—Dr Owens, who does not perform blepharoplasties—and signed out to him. He discussed Smith’s surgery with Owens.

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

The next morning, Smith awakened to find she had no vision in her right eye. She immediately returned to Jones’ office and he noted that she had evidence of a retrobulbar hemorrhage. Although he immediately performed surgery to correct the problem, the blindness was permanent. Had Owens made the correct diagnosis and performed immediate surgery, the blindness would have been prevented.

Smith brought a negligence cause of action against both Jones and the covering physician, Owens. The basis of her case against Jones was that he was in a “joint venture” with Owens. After all, they cover each other’s practices on a regular basis. It should be noted that there were no payments made for the cross coverage and the 2 practices shared neither staff nor facilities.

Is Dr Jones 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 Jones’ liability in this situation will generally turn on the degree to which the actions of the on-call physician were influenced or controlled by Jones. For example, if the on-call physician consulted with Jones and, in reliance on his judgment, injured 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 2 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 an on-call arrangement are not usually considered to be engaged in a joint venture that would subject them to liability for each other’s actions.

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 because 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.

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

The same precarious situation could 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 tumescent 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 would be shared between the covering dermatopathologist and the surgical dermatologist. The surgeon would 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.