Referring Physician Owed No Duty to Child Who Suffered Brain Injury

A mother, whose child suffered an anoxic brain injury as the result of being administered an improperly-prescribed dose of a post-operative pain killer following a tonsillectomy that was performed by an ear, nose, and throat (ENT) specialist, brought a medical malpractice action against the physician who had referred the child to the ENT specialist. The trial court granted summary judgment for the referring physician on the ground that no continuing duty was owed the patient following the referral. The referring physician had no further involvement in the treatment or care of the child, and the specialist decided on a treatment without any reliance on the physician's medical records or diagnosis.


Summary judgment was also based on the trial court’s finding that the act of referring the child to the ENT specialist was not a proximate cause of the child's injuries, which resulted from the specialist's improperly-prescribed dose of a post-operative pain killer. It was the ENT specialist, acting independently, who had obtained the child's medical history, made a diagnosis, decided on a course of treatment, performed the tonsillectomy, and prescribed the pain killer.


On interlocutory appeal, the state supreme court affirmed the summary judgment.


See: Spicer v. Osunkoya, 32 A.3d 347 (Del.Supr.  Nov 15, 2011).