Collaborative Arrangements And Physician Liability

There was a time when people who were sick or pregnant would go to the doctor's office and be examined and treated by a physician. As the practice of medicine and the provision of health care continue to evolve, it has become increasingly common that diagnosis, care and treatment are provided not by physicians, but by other health-care professionals, such as nurse practitioners and midwives.

The reasons for the proliferation of health care administered by non-physicians likely include efforts to control costs, limitations of resources and the greater degree of specialization that continues to develop within fields of medicine. However, these non-physician health-care providers are not permitted to practice with total independence, as if they were doctors. To the contrary, nationwide, the statutes that permit these non-physicians to care for patients expressly require collaboration with physicians. This article explores the liability of physicians in New York State when, in the course of this collaboration, they fail to provide proper supervision or oversight. Please check your own state for similar provisions.

Statutory Schemes

Before turning to the decisional law, it is important to examine the statutory schemes governing nurse practitioners and midwives, which are set forth, respectively, in New York's Education Law ' 6902 and ' 6951. Pursuant to the former, the practice of certified nurse practitioners “may include the diagnosis of illness and physical conditions and the performance of therapeutic and corrective measures within a specialty area of practice, in collaboration with a licensed physician qualified to collaborate in the specialty involved, provided such services are performed in accordance with a written practice agreement and written practice protocols” (Educ. L. ' 6902[3](a)(i)).

Nurse practitioners may issue prescriptions for drugs, devices and immunizing agents in accordance with the practice agreement and practice protocols (Educ. L. ' 6902[3](a)(ii)). The practice agreement is supposed to include provisions for the resolution of any disagreement between the physician and the nurse practitioner, and to the extent that it does not so provide, the physician prevails (Educ. L. ' 6902[3](a)(i)). It must also provide for review of patient records “by the collaborating physician in a timely fashion but in no event less often than every three months” (Educ. L. ' 6902[3](a)(iii)), and the practice protocols must reflect “current accepted medical and nursing practice” and must be filed with the department of health (Educ. L. ' 6902[3](a)(iv)). Physicians are prohibited from entering into practice agreements “with more than four nurse practitioners who are not located on the same physical premises as the collaborating physician” (Educ. L. ' 6902[3](a)(v)).

However, as of this year, Educ. L. ' 6902[3](b) permits nurse practitioners practicing more than 3,600 hours to forgo the above requirements, and instead “have collaborative relationships with one or more licensed physicians qualified to collaborate in the specialty involved or a hospital … that provides services through licensed physicians qualified to collaborate in the specialty involved and having privileges at such institution.” For purposes of this alternative mode of practice, the statute provides that “collaborative relationships” means that “the nurse practitioner shall communicate, whether in person, by telephone or through written (including electronic) means,” with the physician “for the purposes of exchanging information, as needed, in order to provide comprehensive patient care and to make referrals as necessary.”

Midwives are governed by Article 140 of the Education Law, which defines midwifery as “the management of normal pregnancies, child birth and postpartum care as well as primary preventive reproductive health care of essentially healthy women, and shall include newborn evaluation, resuscitation and referral for infants” (Educ. L. ' 6951[1]). Like nurse practitioners, midwives must have “collaborative relationships” with an obstetrician-gynecologist or a hospital that provides obstetrical care through licensed physicians (Educ. L. ' 6951[1]). Licensed midwives are permitted to prescribe and administer drugs, immunizing agents, diagnostic tests and devices, and to order laboratory tests as necessary for the practice of midwifery (Educ. L. ' 6951[2]).

A Key Ruling

Earlier this year, the Third Department held in Ruggiero v. Miles, 125 A.D.3d 1216 (3d Dept. 2015), that a collaborating physician may be liable for failing to properly supervise a nurse practitioner. The plaintiff in that case went to the defendant medical group Malta Medical Care P.C., a professional corporation, with abdominal pain, vomiting and diarrhea. He was seen twice by the defendant nurse practitioner, who diagnosed him with gastritis. Several days after the second visit, he was diagnosed by someone else with a ruptured appendix. The plaintiff sued the P.C., the nurse practitioner and the collaborating physician, who was also the sole shareholder of the P.C.

The Supreme Court granted the physician summary judgment dismissing the case against him, and the Appellate Division reversed, finding that the doctor could be held vicariously liable for the nurse practitioner based upon the general authority or control he had over her.

In reaching this conclusion, the court relied upon two statutory principles. First, it noted that although the group was a P.C. and he was the sole shareholder, the doctor could be held liable under Business Corporation Law ' 1505[a] for his own negligence or that of any person under his “direct supervision and control” while rendering professional services on behalf of the P.C. Next, it cited the Education Law requirement (quoted above), which permits nurse practitioners to provide diagnosis and treatment in collaboration with a physician qualified to collaborate in the applicable specialty and in accordance with written practice agreement and written practice protocols.

In applying those principles, the court noted that the nurse practitioner, Diane Belanger, was hired by the doctor, Morgan Vittengl, who was the sole principal of the P.C., and that she entered into a written practice agreement with him by which he agreed “to be available for consultation with [her] and review patient records with her at least once every three months.” The court further noted that the practice agreement (as well as the Education Law) provided that in the event that a dispute related to diagnosis or treatment that was not addressed by written protocols, the doctor's opinion would prevail.

The court concluded that “these circumstances amply demonstrate that Belanger was under Vittengl's direct supervision or control.” That left the question of whether Vittengl directed or permitted tortious conduct by Belanger or failed to exercise proper control over her, such that he could be held vicariously liable for her, which the court answered as follows:

In that regard, Vittengl had no involvement in Belanger's treatment of plaintiff. Vittengl further testified that he appropriately supervised Belanger, in that he was always available for consultation and would review charts with her on a regular basis. Vittengl spent approximately 20 weeks a year on vacation, however, and he agreed that Belanger was “on her own” in treating patients while he was gone. Vittengl also testified that he only reviewed 30 to 40 charts a year with Belanger, a small proportion of those prepared for the thousands of patients treated at MMC. This evidence suggests that Vittengl may have provided inadequate supervision, an impression that is shared by a physician who proffered an affidavit in opposition to Vittengl's motion. That physician opined in no uncertain terms that Belanger committed malpractice in her examination and treatment of plaintiff and that, had she been properly supervised by Vittengl, her failings would have been corrected well before plaintiff presented as a patient. These circumstances are sufficient to raise a question of fact as to whether Vittengl is liable.

Several points can be taken from this decision. First, the doctor's potential liability flowed from his agreement to collaborate with the nurse practitioner. Second, that agreement ' at least the one in this case, which provided that his opinion would prevail in the event of a conflict with the nurse-gave rise to a duty on his part to supervise the nurse practitioner. Third, the evidence that the doctor generally performed inadequate supervision of the nurse practitioner established a breach of that duty, upon which he could be held vicariously liable for her negligence. Fourth, in this context, the fact that he had no involvement with the plaintiff became a basis for his liability rather than a ground for exonerating him.

It should be noted that while the court cited BCL ' 1505[a] for the proposition that a shareholder may be held liable for failing to properly supervise an employee, it also relied upon common law principles recognizing vicarious liability based upon a failure to properly supervise someone over whom there exists control. Specifically, it cited Ross v. Mandeville , 45 A.D.3d 755 (2d Dept. 2007), where a private attending obstetrician was held vicariously liable for the negligence of a resident who was employed by the hospital-the attending permitted the resident to make the uterine incision during a cesarean section and the resident lacerated the baby's forehead, leaving her scarred. The court in that case held that the obstetrician was properly held vicariously liable for the resident's negligence based upon his control and direct supervision over the resident. In this light, BCL ' 1505[a] was not critical to the court's holding in Ruggiero .

Earlier Cases

Prior to Ruggiero , the Supreme Court in Martinez v. Bethel Medical Family Practice, 44 Misc.3d 1230(A) (Sup. Ct., Sullivan Co. 2013), reached the same conclusion under similar circumstances. The plaintiffs in that case alleged that a nurse practitioner employed by a P.C. failed to properly treat infection in a child, and that the collaborating physician, who was also the sole shareholder of the P.C., provided inadequate supervision. As in Ruggiero , the doctor moved for summary judgment on the ground that “he never saw, treated or consulted with” the nurse practitioner regarding the child.

The court found that “as the corporation's executive and sole shareholder and the collaborating licensed physician … , [the doctor] may ' depending on the particular facts ' be responsible for staff supervision and for the implementation of office policy and procedure.” However, no evidence was submitted regarding either the practice agreement or the protocols. Noting that the doctor does not have to be present and give directions at the precise time treatment is rendered, and that the doctor is arguably the one who established the procedures to be followed, the court found that there were issues of fact concerning the doctor's vicarious liability for the nurse practitioner and that the doctor failed to establish his entitlement to summary judgment.

Our research reveals one other New York decision addressing liability of physicians collaborating with a nurse practitioner. In Hytko v. Hennessey, 62 A.D.3d 1081 (3d Dept. 2009), where the nurse practitioner allegedly failed to diagnose choriocarcinoma (a pregnancy-related cancer), the Appellate Division held that the direct claims against the physicians for failing to adequately collaborate with the nurse were properly dismissed by the trial court. It noted that the plaintiff conceded that there was no expert testimony establishing that the doctors deviated from the standard of care or caused any injury, and that there was testimony from a doctor that “the degree of collaboration … was in keeping with good and accepted standards of practice.”

Physicians and Midwives

There are also three decisions that address the potential liability of collaborating physicians for midwives. In Santos v. Rosing, 60 A.D.3d 500 (1st Dept. 2009), the Appellate Division affirmed a denial of a defendant doctor's summary judgment motion that was premised on his contention that he neither provided nor consulted in the plaintiff mother's care or treatment prenatally or during labor and delivery. It found that an issue of fact was created by testimony of a certified nurse midwife that she “consulted and collaborated with the attending physician in the labor and delivery department when plaintiff presented there a week before she experienced placental abruption, and the medical record identifies defendant as the attending physician that day.” Citing Education Law ' 6951, the court found that this raises issues of whether an implied physicianpatient relationship arose from the midwife's consultation with the doctor, such that he owed the plaintiffs a duty of care.

In Ramsay v. Good Samaritan Hosp., 24 A.D.3d 645 (2d Dept. 2005), the Appellate Division affirmed summary judgment dismissing claims against a defendant doctor who “agreed to act as the physician backing up the midwife,” who had been retained by the plaintiff to perform a home birth. The plaintiff mother claimed that after the delivery, the baby died from neonatal pneumonia caused by meconium aspiration, and that she herself sustained injury from an improperly performed episiotomy. She asserted that the doctor failed to properly supervise the midwife. Summary judgment was warranted, in pertinent part, based on an expert affidavit submitted on behalf of the doctor attesting that he complied with the standards of care for backing a midwife, which the plaintiff failed to refute.

Ramsay was cited by the Supreme Court in Lacy v. My Midwife, 21 Misc.3d 1104(A) (Sup. Ct., Nassau Co. 2008), in dismissing the claims against an obstetrician who had a collaborating arrangement with a midwife. The plaintiff signed a consent form, which provided for consultation, collaboration and/or care by the obstetrician in the event of a deviation from normal during the pregnancy. A “Memorandum of Understanding” between the midwife and the obstetrician indicated that the doctor did not assume liability for the midwife's actions but only his own, that he would be available to collaborate and consult when medical management or hospitalization were required, and that his judgment would prevail in the event of a dispute with the midwife.

During the pregnancy, the plaintiff was diagnosed with a twin gestation, which rendered the pregnancy high-risk, but the midwife never referred her to the obstetrician. When a concern arose with one of the fetal heart rates during the pregnancy, the midwife attempted to admit the plaintiff to the hospital where the collaborating doctor was director of obstetrics, but the hospital refused permission because she did not have admitting privileges. Although another doctor offered to admit and attend to the plaintiff, the plaintiff and the midwife left the hospital. The collaborating obstetrician was advised of this event, but not about the twin gestation. The babies were ultimately delivered by the midwife at home, and one was stillborn.

The plaintiff alleged that the obstetrician was negligent in failing to speak with, examine or render care to her, and in failing to provide proper consultation or collaboration. In dismissing those claims, the court found the case to be “on all fours” with Ramsay , in that the agreement with the midwife required the obstetrician to be available to her, but she never notified him of any facts indicating his need to become involved and never sought any consultation from him.

Evaluation and Scrutiny

As demonstrated by the cases discussed above, the liability of a collaborating physician requires evaluation of several factors. While the specific facts of the physician's involvement with, or knowledge of, the particular patient may be determinative, as they were in Santos , Ramsay and Lacey , it is equally important to examine the general nature of the relationship between the physician and the midwife or nurse practitioner, as was done in Ruggiero and Martinez .

Where the doctor and the midwife or nurse practitioner are employed by the same entity, the courts may be more inclined to find sufficient control to impose liability on the doctor. Of course, the practice agreements and practice protocols are critical in assessing both the nature of the relationship and the degree of control, and careful inquiry must also be made during depositions into how the relationship operates in practice. While doctors often seek dismissal because they were not involved in treating the patient, that evidence may ultimately be the basis of such liability.

As diagnosis and treatment by non-physician health-care providers continues to become more common, the role of collaborating physicians necessarily becomes more important. When things go awry, the potential responsibility of the of collaborating physician should be carefully scrutinized.

Thomas A. Moore is senior partner and Matthew Gaier is a partner at Kramer, Dillof, Livingston & Moore. This article also appeared in the New York Law Journal, an ALM sibling publication of this newsletter.

There was a time when people who were sick or pregnant would go to the doctor's office and be examined and treated by a physician. As the practice of medicine and the provision of health care continue to evolve, it has become increasingly common that diagnosis, care and treatment are provided not by physicians, but by other health-care professionals, such as nurse practitioners and midwives.

The reasons for the proliferation of health care administered by non-physicians likely include efforts to control costs, limitations of resources and the greater degree of specialization that continues to develop within fields of medicine. However, these non-physician health-care providers are not permitted to practice with total independence, as if they were doctors. To the contrary, nationwide, the statutes that permit these non-physicians to care for patients expressly require collaboration with physicians. This article explores the liability of physicians in New York State when, in the course of this collaboration, they fail to provide proper supervision or oversight. Please check your own state for similar provisions.

Statutory Schemes

Before turning to the decisional law, it is important to examine the statutory schemes governing nurse practitioners and midwives, which are set forth, respectively, in New York's Education Law ' 6902 and ' 6951. Pursuant to the former, the practice of certified nurse practitioners “may include the diagnosis of illness and physical conditions and the performance of therapeutic and corrective measures within a specialty area of practice, in collaboration with a licensed physician qualified to collaborate in the specialty involved, provided such services are performed in accordance with a written practice agreement and written practice protocols” (Educ. L. ' 6902[3](a)(i)).

Nurse practitioners may issue prescriptions for drugs, devices and immunizing agents in accordance with the practice agreement and practice protocols (Educ. L. ' 6902[3](a)(ii)). The practice agreement is supposed to include provisions for the resolution of any disagreement between the physician and the nurse practitioner, and to the extent that it does not so provide, the physician prevails (Educ. L. ' 6902[3](a)(i)). It must also provide for review of patient records “by the collaborating physician in a timely fashion but in no event less often than every three months” (Educ. L. ' 6902[3](a)(iii)), and the practice protocols must reflect “current accepted medical and nursing practice” and must be filed with the department of health (Educ. L. ' 6902[3](a)(iv)). Physicians are prohibited from entering into practice agreements “with more than four nurse practitioners who are not located on the same physical premises as the collaborating physician” (Educ. L. ' 6902[3](a)(v)).

However, as of this year, Educ. L. ' 6902[3](b) permits nurse practitioners practicing more than 3,600 hours to forgo the above requirements, and instead “have collaborative relationships with one or more licensed physicians qualified to collaborate in the specialty involved or a hospital … that provides services through licensed physicians qualified to collaborate in the specialty involved and having privileges at such institution.” For purposes of this alternative mode of practice, the statute provides that “collaborative relationships” means that “the nurse practitioner shall communicate, whether in person, by telephone or through written (including electronic) means,” with the physician “for the purposes of exchanging information, as needed, in order to provide comprehensive patient care and to make referrals as necessary.”

Midwives are governed by Article 140 of the Education Law, which defines midwifery as “the management of normal pregnancies, child birth and postpartum care as well as primary preventive reproductive health care of essentially healthy women, and shall include newborn evaluation, resuscitation and referral for infants” (Educ. L. ' 6951[1]). Like nurse practitioners, midwives must have “collaborative relationships” with an obstetrician-gynecologist or a hospital that provides obstetrical care through licensed physicians (Educ. L. ' 6951[1]). Licensed midwives are permitted to prescribe and administer drugs, immunizing agents, diagnostic tests and devices, and to order laboratory tests as necessary for the practice of midwifery (Educ. L. ' 6951[2]).

A Key Ruling

Earlier this year, the Third Department held in Ruggiero v. Miles , 125 A.D.3d 1216 (3d Dept. 2015), that a collaborating physician may be liable for failing to properly supervise a nurse practitioner. The plaintiff in that case went to the defendant medical group Malta Medical Care P.C., a professional corporation, with abdominal pain, vomiting and diarrhea. He was seen twice by the defendant nurse practitioner, who diagnosed him with gastritis. Several days after the second visit, he was diagnosed by someone else with a ruptured appendix. The plaintiff sued the P.C., the nurse practitioner and the collaborating physician, who was also the sole shareholder of the P.C.

The Supreme Court granted the physician summary judgment dismissing the case against him, and the Appellate Division reversed, finding that the doctor could be held vicariously liable for the nurse practitioner based upon the general authority or control he had over her.

In reaching this conclusion, the court relied upon two statutory principles. First, it noted that although the group was a P.C. and he was the sole shareholder, the doctor could be held liable under Business Corporation Law ' 1505[a] for his own negligence or that of any person under his “direct supervision and control” while rendering professional services on behalf of the P.C. Next, it cited the Education Law requirement (quoted above), which permits nurse practitioners to provide diagnosis and treatment in collaboration with a physician qualified to collaborate in the applicable specialty and in accordance with written practice agreement and written practice protocols.

In applying those principles, the court noted that the nurse practitioner, Diane Belanger, was hired by the doctor, Morgan Vittengl, who was the sole principal of the P.C., and that she entered into a written practice agreement with him by which he agreed “to be available for consultation with [her] and review patient records with her at least once every three months.” The court further noted that the practice agreement (as well as the Education Law) provided that in the event that a dispute related to diagnosis or treatment that was not addressed by written protocols, the doctor's opinion would prevail.

The court concluded that “these circumstances amply demonstrate that Belanger was under Vittengl's direct supervision or control.” That left the question of whether Vittengl directed or permitted tortious conduct by Belanger or failed to exercise proper control over her, such that he could be held vicariously liable for her, which the court answered as follows:

In that regard, Vittengl had no involvement in Belanger's treatment of plaintiff. Vittengl further testified that he appropriately supervised Belanger, in that he was always available for consultation and would review charts with her on a regular basis. Vittengl spent approximately 20 weeks a year on vacation, however, and he agreed that Belanger was “on her own” in treating patients while he was gone. Vittengl also testified that he only reviewed 30 to 40 charts a year with Belanger, a small proportion of those prepared for the thousands of patients treated at MMC. This evidence suggests that Vittengl may have provided inadequate supervision, an impression that is shared by a physician who proffered an affidavit in opposition to Vittengl's motion. That physician opined in no uncertain terms that Belanger committed malpractice in her examination and treatment of plaintiff and that, had she been properly supervised by Vittengl, her failings would have been corrected well before plaintiff presented as a patient. These circumstances are sufficient to raise a question of fact as to whether Vittengl is liable.

Several points can be taken from this decision. First, the doctor's potential liability flowed from his agreement to collaborate with the nurse practitioner. Second, that agreement ' at least the one in this case, which provided that his opinion would prevail in the event of a conflict with the nurse-gave rise to a duty on his part to supervise the nurse practitioner. Third, the evidence that the doctor generally performed inadequate supervision of the nurse practitioner established a breach of that duty, upon which he could be held vicariously liable for her negligence. Fourth, in this context, the fact that he had no involvement with the plaintiff became a basis for his liability rather than a ground for exonerating him.

It should be noted that while the court cited BCL ' 1505[a] for the proposition that a shareholder may be held liable for failing to properly supervise an employee, it also relied upon common law principles recognizing vicarious liability based upon a failure to properly supervise someone over whom there exists control. Specifically, it cited Ross v. Mandeville , 45 A.D.3d 755 (2d Dept. 2007), where a private attending obstetrician was held vicariously liable for the negligence of a resident who was employed by the hospital-the attending permitted the resident to make the uterine incision during a cesarean section and the resident lacerated the baby's forehead, leaving her scarred. The court in that case held that the obstetrician was properly held vicariously liable for the resident's negligence based upon his control and direct supervision over the resident. In this light, BCL ' 1505[a] was not critical to the court's holding in Ruggiero .

Earlier Cases

Prior to Ruggiero , the Supreme Court in Martinez v. Bethel Medical Family Practice , 44 Misc.3d 1230(A) (Sup. Ct., Sullivan Co. 2013), reached the same conclusion under similar circumstances. The plaintiffs in that case alleged that a nurse practitioner employed by a P.C. failed to properly treat infection in a child, and that the collaborating physician, who was also the sole shareholder of the P.C., provided inadequate supervision. As in Ruggiero , the doctor moved for summary judgment on the ground that “he never saw, treated or consulted with” the nurse practitioner regarding the child.

The court found that “as the corporation's executive and sole shareholder and the collaborating licensed physician … , [the doctor] may ' depending on the particular facts ' be responsible for staff supervision and for the implementation of office policy and procedure.” However, no evidence was submitted regarding either the practice agreement or the protocols. Noting that the doctor does not have to be present and give directions at the precise time treatment is rendered, and that the doctor is arguably the one who established the procedures to be followed, the court found that there were issues of fact concerning the doctor's vicarious liability for the nurse practitioner and that the doctor failed to establish his entitlement to summary judgment.

Our research reveals one other New York decision addressing liability of physicians collaborating with a nurse practitioner. In Hytko v. Hennessey , 62 A.D.3d 1081 (3d Dept. 2009), where the nurse practitioner allegedly failed to diagnose choriocarcinoma (a pregnancy-related cancer), the Appellate Division held that the direct claims against the physicians for failing to adequately collaborate with the nurse were properly dismissed by the trial court. It noted that the plaintiff conceded that there was no expert testimony establishing that the doctors deviated from the standard of care or caused any injury, and that there was testimony from a doctor that “the degree of collaboration … was in keeping with good and accepted standards of practice.”

Physicians and Midwives

There are also three decisions that address the potential liability of collaborating physicians for midwives. In Santos v. Rosing , 60 A.D.3d 500 (1st Dept. 2009), the Appellate Division affirmed a denial of a defendant doctor's summary judgment motion that was premised on his contention that he neither provided nor consulted in the plaintiff mother's care or treatment prenatally or during labor and delivery. It found that an issue of fact was created by testimony of a certified nurse midwife that she “consulted and collaborated with the attending physician in the labor and delivery department when plaintiff presented there a week before she experienced placental abruption, and the medical record identifies defendant as the attending physician that day.” Citing Education Law ' 6951, the court found that this raises issues of whether an implied physicianpatient relationship arose from the midwife's consultation with the doctor, such that he owed the plaintiffs a duty of care.

In Ramsay v. Good Samaritan Hosp., 24 A.D.3d 645 (2d Dept. 2005), the Appellate Division affirmed summary judgment dismissing claims against a defendant doctor who “agreed to act as the physician backing up the midwife,” who had been retained by the plaintiff to perform a home birth. The plaintiff mother claimed that after the delivery, the baby died from neonatal pneumonia caused by meconium aspiration, and that she herself sustained injury from an improperly performed episiotomy. She asserted that the doctor failed to properly supervise the midwife. Summary judgment was warranted, in pertinent part, based on an expert affidavit submitted on behalf of the doctor attesting that he complied with the standards of care for backing a midwife, which the plaintiff failed to refute.

Ramsay was cited by the Supreme Court in Lacy v. My Midwife , 21 Misc.3d 1104(A) (Sup. Ct., Nassau Co. 2008), in dismissing the claims against an obstetrician who had a collaborating arrangement with a midwife. The plaintiff signed a consent form, which provided for consultation, collaboration and/or care by the obstetrician in the event of a deviation from normal during the pregnancy. A “Memorandum of Understanding” between the midwife and the obstetrician indicated that the doctor did not assume liability for the midwife's actions but only his own, that he would be available to collaborate and consult when medical management or hospitalization were required, and that his judgment would prevail in the event of a dispute with the midwife.

During the pregnancy, the plaintiff was diagnosed with a twin gestation, which rendered the pregnancy high-risk, but the midwife never referred her to the obstetrician. When a concern arose with one of the fetal heart rates during the pregnancy, the midwife attempted to admit the plaintiff to the hospital where the collaborating doctor was director of obstetrics, but the hospital refused permission because she did not have admitting privileges. Although another doctor offered to admit and attend to the plaintiff, the plaintiff and the midwife left the hospital. The collaborating obstetrician was advised of this event, but not about the twin gestation. The babies were ultimately delivered by the midwife at home, and one was stillborn.

The plaintiff alleged that the obstetrician was negligent in failing to speak with, examine or render care to her, and in failing to provide proper consultation or collaboration. In dismissing those claims, the court found the case to be “on all fours” with Ramsay , in that the agreement with the midwife required the obstetrician to be available to her, but she never notified him of any facts indicating his need to become involved and never sought any consultation from him.

Evaluation and Scrutiny

As demonstrated by the cases discussed above, the liability of a collaborating physician requires evaluation of several factors. While the specific facts of the physician's involvement with, or knowledge of, the particular patient may be determinative, as they were in Santos , Ramsay and Lacey , it is equally important to examine the general nature of the relationship between the physician and the midwife or nurse practitioner, as was done in Ruggiero and Martinez .

Where the doctor and the midwife or nurse practitioner are employed by the same entity, the courts may be more inclined to find sufficient control to impose liability on the doctor. Of course, the practice agreements and practice protocols are critical in assessing both the nature of the relationship and the degree of control, and careful inquiry must also be made during depositions into how the relationship operates in practice. While doctors often seek dismissal because they were not involved in treating the patient, that evidence may ultimately be the basis of such liability.

As diagnosis and treatment by non-physician health-care providers continues to become more common, the role of collaborating physicians necessarily becomes more important. When things go awry, the potential responsibility of the of collaborating physician should be carefully scrutinized.

Thomas A. Moore is senior partner and Matthew Gaier is a partner at Kramer, Dillof, Livingston & Moore. This article also appeared in the New York Law Journal, an ALM sibling publication of this newsletter.