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NY: hospital not liable for physician's error: nurses not liable for physician's error either.

CASE FACTS: Dr. Christopher La Porta delivered a baby girl at Staten Island University Hospital (SIUH). The baby was born with Erb's Palsy. Her parents brought suit against Dr. La Porta and (SIUH) for medical malpractice. The hospital filed a motion for summary judgment on the grounds that Dr. La Porta was not employed by the hospital and merely had privileges at the hospital. The hospital maintained that neither it nor its nursing staff had any liability for the alleged negligence of Dr. La Porta. The trial court denied the hospital's motion for summary judgment. The hospital appealed.

COURT'S OPINION: The Appellate Division of the Supreme Court of New York reversed the judgment entered by the lower court and granted the hospital's motion for summary judgment. The court held, inter alia, that the plaintiffs claim that the hospital was liable because the infant suffered a neurological injury, to wit, Erb's Palsy during her birth as a result of Dr. La Porta's alleged negligence was without merit. The court held that the hospital was not liable for the actions of a private physician, and since there was no evidence of any independent acts of negligence by its nursing staff, the court had no recourse but to reverse the trial court and grant the hospital's motion for summary judgment. In general, a hospital cannot be held vicariously liable for the negligence of a private physician. In addition, a hospital "cannot be held concurrently liable with such a physician unless its employees, particularly its nurses, commit independent acts of negligence or the attending physician's orders are contraindicated by normal practice and implemented by a hospital's nurses, notwithstanding the fact that they are contraindicated. The court found that the hospital established, prima facie, that its employees followed the orders of the physician, and that those orders were not contraindicated by normal practice. Further, the nurse who assisted in the delivery did not commit any independent acts of negligence. The opinion of the plaintiffs' expert that there may be a triable issue of fact as to whether the nurse improperly applied traction to the infant during delivery had no factual support in the record. Accordingly, the Court of Appeals of New York ruled that the trial court should have granted the hospital's motion for summary judgment.

Editor's Note: Nurses involved in such eases, especially if they are named defendants, should make certain that they are included in all proceedings along with the hospital. This even includes settlement. Thee are cases in which hospitals have deliberately excluded nurses from being included in dismissals and settlements, thus, deliberately leaving nurses out on the proverbial limb. This is more likely to occur when a hospital has an axe to grind with a nurse. Martinez v. La Porta, 2008 NY Slip Op 03601(04/22/2008)--NY

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World
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Title Annotation:Legal Case Briefs for Nurses
Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Article Type:Case overview
Geographic Code:1USA
Date:Jun 1, 2008
Previous Article:Surgical towel left in pt.: were nurses responsible?
Next Article:NY: nursing home argued lack of expert fatal: court held no expert ok in 'simple negligence'.

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