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Patient Sues Surgeon and Assistant
ISSUE: What is the potential liability of a physician acting as a “surgical assistant?”
A patient had surgery, consisting of a modified Austin bunionectomy on his right foot based on a pre-operative diagnosis of hallux abducto-valgus. The surgeon was assisted by another podiatric physician. During surgery, an intraoperative decision was made to correct the hallux abductus angle because part of the deformity was still present. Postoperatively, the assistant only saw the patient on one visit, on an emergency basis, when the surgeon was not available. The patient presented to the assistant’s office with green drainage from the operative site while the surgeon was out of town. She was already on oral antibiotics, so the assistant applied topical antibiotic cream, took a culture and put the patient’s foot in a boot.
Thereafter, the patient followed up with the surgeon, who recommended after several visits that additional surgery consisting of correction of hallux varus of the right first metatarsophalangeal joint and the removal of the screw of the right foot. The surgeon’s assessment was that removal of the screw should be made with an attempt to realign the soft tissue to “decrease a contracture of the varus.”
Two months later, the surgeon again operated with the same assisting podiatrist. The retained hardware was removed and a modified procedure was performed for correction of the hallux varus of the right lower extremity. The patient continued to experience complications and pain. She eventually sought treatment from another surgeon, requiring several procedures with residual disability.
The patient sued both of the original podiatrists, claiming they departed from good and accepted standards of medical care by, among other things, failing to accurately diagnose and treat her condition of hallux varus, failing to offer non-surgical treatment, selecting the wrong or less than optimal surgical procedures, failing to take necessary X-rays, cutting an improper amount of bone, placing improper internal fixation, causing a hematoma to form, and over-correcting a hallux valgus, proximately causing her injuries. She alleged that the assistant participated in the surgical procedures and the intraoperative decisions.
The surgeon testified at his deposition that he and the assistant both cut tissue and bone. However, in an affidavit to correct the transcript, he stated that the assistant might have cut some tissue and cauterized bleeders, and at no point in the surgery did he cut bone in any way or participate in the surgical plan. The surgeon testified that it was a combined effort for him and the assistant to ligate or cauterize any bleeders. The operative report was expressed in general terms and did not clarify whether the assistant cut any bone or participated in operative decisions or whether he simply cut sutures, retracted and applied cautery. The assistant moved for dismissal the lawsuit against him on the grounds that he was not liable to the patient because the primary surgeon made all of the decisions and did all of the surgical procedures.
A patient had surgery, consisting of a modified Austin bunionectomy on his right foot based on a pre-operative diagnosis of hallux abducto-valgus. The surgeon was assisted by another podiatric physician. During surgery, an intraoperative decision was made to correct the hallux abductus angle because part of the deformity was still present. Postoperatively, the assistant only saw the patient on one visit, on an emergency basis, when the surgeon was not available. The patient presented to the assistant’s office with green drainage from the operative site while the surgeon was out of town. She was already on oral antibiotics, so the assistant applied topical antibiotic cream, took a culture and put the patient’s foot in a boot.
Thereafter, the patient followed up with the surgeon, who recommended after several visits that additional surgery consisting of correction of hallux varus of the right first metatarsophalangeal joint and the removal of the screw of the right foot. The surgeon’s assessment was that removal of the screw should be made with an attempt to realign the soft tissue to “decrease a contracture of the varus.”
Two months later, the surgeon again operated with the same assisting podiatrist. The retained hardware was removed and a modified procedure was performed for correction of the hallux varus of the right lower extremity. The patient continued to experience complications and pain. She eventually sought treatment from another surgeon, requiring several procedures with residual disability.
The patient sued both of the original podiatrists, claiming they departed from good and accepted standards of medical care by, among other things, failing to accurately diagnose and treat her condition of hallux varus, failing to offer non-surgical treatment, selecting the wrong or less than optimal surgical procedures, failing to take necessary X-rays, cutting an improper amount of bone, placing improper internal fixation, causing a hematoma to form, and over-correcting a hallux valgus, proximately causing her injuries. She alleged that the assistant participated in the surgical procedures and the intraoperative decisions.
The surgeon testified at his deposition that he and the assistant both cut tissue and bone. However, in an affidavit to correct the transcript, he stated that the assistant might have cut some tissue and cauterized bleeders, and at no point in the surgery did he cut bone in any way or participate in the surgical plan. The surgeon testified that it was a combined effort for him and the assistant to ligate or cauterize any bleeders. The operative report was expressed in general terms and did not clarify whether the assistant cut any bone or participated in operative decisions or whether he simply cut sutures, retracted and applied cautery. The assistant moved for dismissal the lawsuit against him on the grounds that he was not liable to the patient because the primary surgeon made all of the decisions and did all of the surgical procedures.
From your analysis of the case, assess whether the following statesments are true or false:
| * | A podiatrist employed only as an assistant still can be liable for failure to meet the standard of care required for that task. | True or False |
| * | A podiatrist must be listed as the primary surgeon on the operative report in order to be held to the standard of care of a surgeon. | True or False |
| * | As an assistant, a fully trained podiatric surgeon has no duty to comment when the surgeon is proceeding with a blatantly obvious error in treatment. | True or False |
Expand to check answers
GENERAL PRINCIPLE: A physician employed as a “surgical assistant” can incur liability in a number of ways.
APPLIED PRINCIPLE: A surgeon asked to assist another surgeon may assume that the lead surgeon has total responsibility for any lawsuit arising out of the surgery. However, while the surgeon may be liable for his/her own negligence or for negligent supervision of support personnel and vicariously liable for employees’ negligence, the assistant may incur personal liability.
Acting as an assistant, the podiatrist has a duty to perform the assistant duties within that standard of care. In addition, if the assistant begins to assume a role as a surgeon in planning the surgery or cutting or suturing, the assistant podiatrist may be liable for any negligence demonstrated under a surgeon’s standard of care. Finally, if the assistant is a fully trained podiatric surgeon and observes improper and harmful treatment of the patient without intervening, a court may allow claims to be made against him/her. That liability would be more likely if the negligence in the care being provided was obvious and significant.
Here the patient claimed that the two podiatrists were equally trained, collaborated in the surgical procedure and were both liable. The medical record did not clarify the respective roles, the surgeon provided conflicting information and the assistant provided independent postoperative care. The jury may or may not find credible the assistant’s testimony that his conduct was limited to assistant tasks properly performed, he did not participate in any conduct as a surgeon, he did not observe any obviously negligent care by the surgeon and that the postoperative care was provided only in an emergency and as a Good Samaritan.
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APPLIED PRINCIPLE: A surgeon asked to assist another surgeon may assume that the lead surgeon has total responsibility for any lawsuit arising out of the surgery. However, while the surgeon may be liable for his/her own negligence or for negligent supervision of support personnel and vicariously liable for employees’ negligence, the assistant may incur personal liability.
Acting as an assistant, the podiatrist has a duty to perform the assistant duties within that standard of care. In addition, if the assistant begins to assume a role as a surgeon in planning the surgery or cutting or suturing, the assistant podiatrist may be liable for any negligence demonstrated under a surgeon’s standard of care. Finally, if the assistant is a fully trained podiatric surgeon and observes improper and harmful treatment of the patient without intervening, a court may allow claims to be made against him/her. That liability would be more likely if the negligence in the care being provided was obvious and significant.
Here the patient claimed that the two podiatrists were equally trained, collaborated in the surgical procedure and were both liable. The medical record did not clarify the respective roles, the surgeon provided conflicting information and the assistant provided independent postoperative care. The jury may or may not find credible the assistant’s testimony that his conduct was limited to assistant tasks properly performed, he did not participate in any conduct as a surgeon, he did not observe any obviously negligent care by the surgeon and that the postoperative care was provided only in an emergency and as a Good Samaritan.
| * | A podiatrist employed only as an assistant still can be liable for failure to meet the standard of care required for that task. | True |
| * | A podiatrist must be listed as the primary surgeon on the operative report in order to be held to the standard of care of a surgeon. | False |
| * | As an assistant, a fully trained podiatric surgeon has no duty to comment when the surgeon is proceeding with a blatantly obvious error in treatment. | False |