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 The anesthesiologist was charged with gross negligence and his license was revoked.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.