Sam Bernard showed up at the office of Dr. Edward Goldberg, a gastroenterologist, for a colonoscopy. The anesthesiologist, Dr. Goldweber, gave the patient propofol for sedation. Because the colon prep was inadequate, the case was aborted, and the patient went home.
Five months later, the patient tested positive for hepatitis B. Three months after that, the New York Health Department determined the cause: reinserting a contaminated needle into multi-dose vial of anesthesia. The anesthesiologist was charged with gross negligence and his license was revoked.
The patient’s family pursued a lawsuit against the anesthesiologist. Since he had declared bankruptcy, the gastroenterologist was added to the lawsuit. The anesthesiologist was neither an employee nor independent contractor of the gastroenterologist. In spite of that, the judge ruled the anesthesiologist was working in the gastroenterologist’s office under his implicit approval. Accordingly, the judge refused to dismiss the gastroenterologist invoking the legal theory of vicarious liability.
How this case is ultimately resolved is anyone’s guess.
In CA under MICRA act there’s proportionate liability, in other words in this case the GI MD might be 1 per cent liable, the anesthesiologist is 99 per cent liable. This isn’t the case in other states, where the deep pocket might catch the whole liability if the plaintiff couldn’t collect front he BK anesthesiologist.
I am certain that the patient never contracted independently with the anesthesiologist. The patient showed up in the gastro- office for his colonoscopy and the anesthesiologist walked into the room and sai he was going to give him something to relax. This is the vicarious responsibility of the GI doc at whose office this was done. The GI doc had an arrangement with the anesthesiologist. The patient did not come to the office bringing his own anesthesiologist along.
This judge is another lawyer who looks at GI MD as bank. This happens when judges and legal system is enemy number 1 – co-sharing with politicians the position