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Assisting Resident Can Not Be Sued for Malpractice

In dismissing a medical malpractice complaint against a resident who assisted another doctor during surgery, the Second Department wrote:

A resident or fellow who is supervised by a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for medical malpractice unless the resident or fellow knows that the supervising doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders, or the resident or fellow commits an independent act that constitutes a departure from accepted medical practice …. Poter v Adams, 2014 NY Slip Op 02061, 2012-03922, Index No 27069/09, 2nd Dept 3-27-13

 

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THE ADMINISTRATOR OF THE ESTATE COULD SUE FOR DECEDENT’S CONSCIOUS PAIN AND SUFFERING BUT, BECAUSE THE WRONGFUL DEATH ACTION HAD NOT BEEN LISTED AS AN ASSET IN THE BANKRUPTCY PROCEEDING, THE ADMINISTRATOR DID NOT HAVE THE CAPACITY TO SUE ON BEHALF OF THE DISTRIUBUTEE FOR WRONGFUL DEATH (SECOND DEPT).
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MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED.
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