Hospital Can Be Liable for Employee Following Instructions from Non-Employee, Private Attending Physician

In New York, there are two situations where a hospital may be held liable for the acts of a hospital employee who was following instructions given by a private attending physician who is not a hospital employee: (1) the hospital employee committed an act of negligence independent of the physician’s instructions, or (2) the attending physician’s orders were contraindicated by normal practice such that ordinary prudence required inquiry into the correctness of the attending physician’s orders.

The Appellate Division of the New York Supreme Court, Third Department, addressed the first kind of liability in Trifiletti v. Hee-Young Cheon-Lee, 126 A.D.3d 1106, 2015 WL 919629, 2015 N.Y. Slip Op. 01856 (N.Y.A.D. 3 Dept., March 5, 2015). The case involved a Cesarean section during which the private attending physician was initially unable to remove the child because the child’s head was deep in the birth canal. The court accepted as true for the purposes of ruling on the hospital and medical center’s motion to dismiss that the private attending physician then requested the nurse insert a hand vaginally to push the child’s head up the canal so the physician could remove the child through the surgical incision. The child developed difficulties within a day and was discovered to have suffered a fractured skull and other serious injuries.

The court affirmed the trial court’s denial of the hospital and medical center’s motion to dismiss. The court held that there was a factual issue as to whether one of the hospital’s nurses engaged in an act of independent negligence by using excessive force not requested by the private attending physician when attempting to flex or push the child’s head from the birth canal. Given that the hospital’s expert stated that this type of assistance was not uncommon, the court found that the private attending physician’s request that the nurse insert a hand vaginally to push the child’s head up the birth canal was not contraindicated by normal practice such that ordinary prudence required inquiry into the correctness of the attending physician’s orders.

The court accepted as true for the purposes of ruling on the hospital and medical center’s motion to dismiss that the infant did not suffer a spontaneous intrauterine skull fracture. Spontaneous intrauterine skull fractures in newborns delivered by cesarean section are rare. Intrauterine skull fractures are more likely to occur during traumatic Cesarean deliveries. However, even without complicated spontaneous vaginal delivery or history of external trauma, congenital fracture of the skull can occur.

The court credited the family’s expert who opined that the maneuver used to free the child’s head should be done in a gently non-traumatic fashion and had the potential to cause serious injury if excessive force was used. Basically, the court held that if an employee of a hospital executes the order of a private attending physician incorrectly, the hospital may be liable. Therefore, an act of negligence independent of the physician’s instructions includes following the physician’s instructions negligently.

By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.

For more details, see the Scalpel Weekly News, March 16, 2015.

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See also Medical Law Perspectives, January 2015 Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability

See also: Basaldella L1, Marton E, Bekelis K, et al., Spontaneous resolution of atraumatic intrauterine ping-pong fractures in newborns delivered by cesarean section. J Child Neurol. 2011 Nov;26(11):1449-51.PMID: 21652589

Aliabadi H1, Miller J, Radnakrishnan S, et al., Spontaneous intrauterine “ping-pong” fracture: review and case illustration. Neuropediatrics. 2009 Apr;40(2):73-5. PMID: 19809935

Dupuis O1, Silveira R, Dupont C, et al., Comparison of “instrument-associated” and “spontaneous” obstetric depressed skull fractures in a cohort of 68 neonates. Am J Obstet Gynecol. 2005 Jan;192(1):165-70. PMID: 15672020

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