Last week an upstate appellate court upheld the dismissal of a hospital resident from a medical malpractice suit on the ground that he was in training and did not exercise independent medical judgment during the operation. However, the orthopedic surgeon who was supervising the resident must now stand trial before a jury. "It is undisputed that during surgery, the resident severed the plaintiff's peroneal and tibial nerves while drilling into the intramedullary canal of her left femur, which resulted in permanent nerve damage in her leg."  The general rule is that a resident who assists a surgeon - and who doesn't make decisions on what to do, or, how to do it - can't be held liable for malpractice unless the surgeon's instructions wildly deviate from the normal practice.

The surgeon admitted that he supervised the resident's selection of the location and angle of the drill and when to start and stop drilling. A jury will decide whether the surgeon departed from accepted standards of medical care based on the testimony of orthopedists testifying on behalf of both sides. Blendowski v Wiese, 2018 WL 795675