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Hospital Could Be Found Liable for Private Physician’s Order to Prescribe Antibiotic


A man underwent knee surgery at a hospital. The surgery was performed by his private attending physician. Following surgery, the attending physician placed him on antibiotics upon suspicion of infection based on his observations of the knee during surgery. During his stay at the hospital, tests performed on him were negative for infection, and his antibiotic regimen was discontinued. However, upon discharging him from the hospital to a rehabilitation facility, the attending physician ordered hospital staff to give him a prescription for the antibiotic Levaquin, which he was to begin taking the following day. Eventually, the man suffered severe complications consistent with taking Levaquin, which ultimately resulted in intestinal damage. He was transferred to an extended care unit of the hospital, where he resided until his death.

 

The man filed a medical malpractice action prior to his death. The complaint alleged that the hospital was vicariously liable for the attending physician's alleged malpractice in discharging him with an unnecessary prescription to take Levaquin, which ultimately resulted in his intestinal injuries. After his death, the man’s wife was substituted at the plaintiff. The Nassau County Supreme Court denied the hospital’s motion for summary judgment dismissing the complaint and all cross claims against it.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed.  The court held that a hospital may not be held liable for injuries suffered by a patient who is under the care of a private attending physician chosen by the patient where the resident physicians and nurses employed by the hospital merely carry out the orders of the private attending physician, unless the hospital staff commits independent acts of negligence or the attending physician's orders are contraindicated by normal practice.

 

The court reasoned that the hospital established that the attending physician was a private attending physician, and that its employees did not commit independent acts of negligence and that the attending physician's discharge order that the man be given a prescription for Levaquin was not contraindicated by normal practice. However, in opposition, the wife, through her opposing medical expert's affirmation, raised a triable issue of fact as to whether the prescribing of Levaquin was contraindicated by normal practice. Therefore, the trial court appropriately denied the hospital’s motion for summary judgment.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed the trial court’s denial of the hospital’s motion for summary judgment dismissing the complaint and all cross claims against it.

 

See: Fink v. DeAngelis, 2014 WL 2107013, 2014 N.Y. Slip Op. 03648 (N.Y.A.D. 2 Dept., May 21, 2014) (not designated for publication).

 

See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

 

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