Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, Mt. Sinai School of Medicine, and Adjunct Professor of Law, Fordham Law School.
Dr. Pigment has a very large and very busy practice. He often sees up to 100 patients every day. He is known as an expert in the evaluation and treatment of pigmented lesions.
Among his many patients are those with the usual mix of benign nevi, atypical nevi and malignant melanoma.
He is very careful when he performs biopsies of pigmented lesions. He has his staff document them with both descriptive diagrams and photography.
Five years ago, he saw a 35-year-old woman with a family history of melanoma and a personal history of multiple dysplastic nevi. She has always been fastidious about her yearly exams.
During this yearly exam, the patient is noted to have four atypical pigmented lesions on her back - all anatomically quite close to each other. All are described in the chart. They are photographed and labeled by his nurse, and then biopsied by Dr. Pigment.
One of the biopsies is read as a superficially invasive melanoma with a Breslow depth of 0.2 mm. The patient returns to the office for a wider excision. Dr. Pigment tells her that her chances of cure, although not 100 percent, are very good.
One year later, the patient is noted to have metastatic melanoma. She dies two years later. Dr. Pigment is sued.
In the course of discovery, it is noted that Dr. Pigment, in fact, surgically removed the wrong pigmented lesion. The melanoma was never removed, because his nurse - who no longer even works for him - mislabeled it.
Dr. Pigment surgically removed the wrong lesion because of his nurse's error. He is devastated.
Is Dr. Pigment responsible when his nurse does what he describes as something "totally stupid" that led to this unfortunate event?
Are we responsible for our nurses' errors even if we have trained them well and are not even aware they have made a mistake? The answer, unfortunately, is that we often are responsible for their negligence.
The roles of nurses in medical offices, their liability, and a physician's resultant vicarious liability have changed much over the past century.
In his 1914 decision in Schloendorff v. Society of New York Hospital, then-Judge Benjamin Cardozo of the New York Court of Appeals famously stated that "she (the nurse) is drilled to habits of strict obedience. She is accustomed to rely unquestioningly upon the judgment of her superiors.''
At the time, the role of the nurse was unquestionably significantly inferior to that of the physician. As the nursing profession grew, so did the responsibilities of the nurse. Nurses are now directors in hospitals and even surveyors for organizations such the Joint Commission on Accreditation of Hospital Organizations.
The healthcare profession has moved forward, and nurses have been an effective medium to advance healthcare in all our offices. As the role of the nurse grew in physician offices and other medical organizations, so did the liability for malpractice for supervising physicians.
With increasing responsibility, nurses are increasingly sued. When the nurse is sued for negligence, the supervising physician usually is also sued.