Nurse Acting Under a Doctor’s Supervision Generally Cannot Commit Malpractice—Judgment Dismissing Nurse’s Complaint As a Matter of Law Pursuant to CPLR 4401 Was Properly Granted

The Second Department explained that a nurse acting under a doctor’s supervision and not exercising independent medical judgment generally cannot be liable for medical malpractice.  Here the nurse’s motion to dismiss the complaint pursuant to CPLR 4401 as a matter of law was properly granted:

“[C]ourts have recognized that a nurse who renders treatment can play a significant role [in a patient’s care] and is capable of committing malpractice” … . However, a nurse whose work is supervised by a physician and who does not exercise independent medical judgment cannot be liable for medical malpractice unless the directions from the supervising physician so greatly deviate from normal medical practice that the nurse should be held liable for failing to intervene, or the nurse commits an independent act that constitutes a departure from accepted medical practice … .

Here, while there was evidence that the defendant Elizabeth Vilanova, a certified registered nurse anesthetist, played an active role in the decedent’s operation, it was established that she was acting under the direct supervision of the attending anesthesiologist the entire time and did not exercise any independent medical judgment, nor did she commit an independent act constituting a departure … . Yakubov v Jamil, 2014 NY Slip Op 06966, 2nd Dept 10-15-14