Assistant Surgeon Errors Due to New York Medical Malpractice

When Can an Assistant Surgeon be Liable for New York Medical Malpractice?

A surgery is complicated.  There are lots of possible parties involved.  This includes the surgeon and anesthesiologist, but also the nurses, CRNA, surgical techs, and the assistant surgeon.  When a mistake is made during a procedure, each party is liable for their own errors due to New York medical malpractice.  Indeed, New York has not adopted a “captain of the ship” doctrine where the surgeon is liable for all surgical errors.  Each party will have their own fault.  

While this may be clearly defined between the anesthesiologist and the surgeon, or the nurses and the surgeon, it is trickier with the surgeon and the assistant surgeon.  This is because both are performing the same tasks—or nearly the same tasks.  This makes determining who is at fault for the New York medical malpractice to be more difficult.

An “Agent of the Surgeon”

The law recognizes this and makes it harder for the victim, unfortunately.  This is because the general rule is that the assistant surgeon will not be liable for New York medical malpractice caused during a surgery.  This is with the understanding that the surgeon is the one that performs the surgeon and directs the assistant surgeon how to act, therefore it is the assistant surgeon who is an agent of the surgeon.

But this leaves victims in a bad spot.  Because if the defense gets the assistant surgeon dismissed on summary judgment or a motion to dismiss, the surgeon will go to trial and blame the errors that occurred on the assistant surgeon who is no longer there.  This will look bad in front of a jury because the surgeon will blame someone else and make it look like it was not his or her fault, leaving the victim to look like he or she sued the wrong party.

What if the Assistant is Using “Independent Judgment”?

However, there are ways to keep the assistant surgeon in and demonstrate a cause of action against him or her.  That is, the assistant surgeon may be liable for New York medical malpractice when the assistant surgeon is exercising independent judgment, commits gross malpractice, or disobeys the directions of the surgeon.  In these instances, a victim of medical malpractice may be entitled to recover against both the surgeon and the assistant surgeon.

Contact Us if You Are Unsure Who Should be Liable

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call or you can drop me an e-mail.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.