A man presented to a medical practice complaining of abdominal pain, vomiting, and diarrhea. A nurse practitioner diagnosed him with gastritis possibly brought on by food poisoning. His symptoms did not improve and several days later he was diagnosed by another medical provider with a ruptured appendix that required surgery.
The man sued the medical practice, nurse practitioner, and the doctor who was the nurse practitioner’s collaborating physician and the sole shareholder of the medical practice. The physician moved for summary judgment. The Saratoga County Supreme Court granted the motion.
The Appellate Division of the New York Supreme Court, Third Department, reversed. The court held that the nurse practitioner was under the doctor’s direct supervision or control and the doctor failed to exercise proper control over the nurse practitioner.
The nurse practitioner was under the doctor’s direct supervision or control. Physicians may be held vicariously liable for the negligent acts of those they exercise some general authority or control over. As the sole shareholder of a medical practice, a physician may be held liable for any negligent or wrongful act or misconduct committed by him or by any person under his direct supervision and control while rendering professional services on behalf of the corporation. Under New York law, nurse practitioners are entitled to engage in the diagnosis of illness and physical conditions in collaboration with a physician, provided these services are performed in accordance with a written practice agreement and written practice protocols. The doctor hired the nurse practitioner and they entered into a written practice agreement. In that agreement, the doctor agreed to be available for consultation with the nurse practitioner and review patient records with her at least once every three months. Both the practice agreement and state law provided that, in the event that a dispute arose with regard to the matter of diagnosis or treatment that was not addressed by the written protocols, the physician’s opinion would prevail. The court concluded that the practice agreement and the state law demonstrated that the nurse practitioner was under the doctor’s direct supervision or control.
The doctor failed to exercise proper control over the nurse practitioner. To impose vicarious liability a plaintiff must show that the doctor directed or permitted tortious conduct by the nurse practitioner or failed to exercise proper control over her. The court found that the doctor had no involvement in the nurse practitioner’s treatment of the man. While the doctor testified that he appropriately supervised the nurse practitioner, he spent approximately 20 weeks a year on vacation, he testified that she was on her own in treating patients while he was gone, and he only reviewed 30 to 40 charts a year with her, which was a small proportion of those prepared for the thousands of patients treated at the medical practice. A physician who proffered an affidavit in opposition to the doctor’s motion for summary judgment suggested that the doctor provided inadequate supervision and that the nurse practitioner committed malpractice in her examination and treatment of the man, and that, had she been properly supervised by the doctor, her failings would have been corrected well before the man presented as a patient.
The Appellate Division of the New York Supreme Court, Third Department, reversed the trial court’s grant of summary judgment in favor of the physician who was the nurse practitioner’s collaborating physician and the sole shareholder of the medical practice.
See: Ruggiero v. Miles, 2015 WL 790372, 2015 N.Y. Slip Op. 01688 (N.Y.A.D. 3 Dept., February 26, 2015) (not designated for publication).