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ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined the medical malpractice against the resident (O’Donnell) who assisted the plaintiff’s surgeon (Weise) should have been dismissed. Although the resident severed a nerve during the bone drilling procedure, the resident was under the supervision of the surgeon and exercised no independent judgment. Therefore the action against the resident and the hospital (Crouse Hospital), as the resident’s employer, should have been dismissed:

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It is well settled that a “resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene” … . Even where a resident “play[s] an active role in [plaintiff’s] procedure,” the resident cannot commit malpractice unless he or she was shown to have exercised some ” independent medical judgment’ ” … . Here, it is undisputed that plaintiff was Wiese’s patient, and Wiese determined the type of surgery to be performed on plaintiff. The deposition testimony of O’Donnell and Wiese establishes that O’Donnell was acting as a resident under Wiese’s direction and supervision during the procedure. Indeed, Wiese testified at his deposition and averred in his affidavit that he supervised O’Donnell’s selection of the location and angle of the drill, and that he made the decision to stop drilling. We therefore conclude that O’Donnell and Crouse Hospital met their burden on the motion by establishing that O’Donnell did not exercise independent medical judgment with respect to his operation of the drill, and plaintiff failed to raise an issue of fact … . Blendowski v Wiese, 2018 NY Slip Op 00973, Fourth Dept 2-9-18

NEGLIGENCE (MEDICAL MALPRACTICE, ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/MEDICAL MALPRACTICE (ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))/INDEPENDENT JUDGMENT (MEDICAL MALPRACTICE, ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT WAS UNDER THE SUPERVISION OF PLAINTIFF’S SURGEON AND EXERCISED NO INDEPENDENT JUDGMENT, MALPRACTICE ACTION AGAINST THE RESIDENT SHOULD HAVE BEEN DISMISSED (FOURTH DEPT))

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