ENT/Plastic Surgeon Denied Dismissal of Patient's Malpractice Claim For a Disfigured Nose
This week an appellate court covering Nassau County reversed the decision of a trial court Judge who dismissed the malpractice claim of a woman who underwent surgery at Beth Israel Medical Center for a deviated septum and was left with a disfigured nose. The patient's claim against a plastic surgeon and an ENT will now be decided by a jury. The case had been wrongly dismissed on the ground that the patient had accepted a settlement from the hospital where the surgery took place. In exchange for the payment of $4000, the patient (who had yet to retain an attorney) signed a general release flowing to the hospital and anyone else "claimed to be liable jointly with the" hospital. The appellate court explained that the trial court Judge was wrong to conclude the release covered the two surgeons sued because those doctors were not "jointly liable" with the hospital.
This was a reasonable conclusion as the hospital in these types of cases always argues that they serve merely as a hotel providing the facilities for the surgeons to operate; that the surgeons are not employed by them; that the surgeons are selected by the patient prior to the surgery; and, therefore they are not liable for any malpractice caused by those surgeons. As such, the language in the general release could not apply to surgeons who indeed, were not in the employ of the hospital. Hoffman v Horn, 2018 WL 522924
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