Should GI Doc Be Held Liable for Negligence of His Anesthesiologist?

A New York anesthesiologist's license was revoked because he transmitted hepatitis through contaminated syringes, and he went bankrupt. To win compensation, a patient who contracted the hepatitis sued the gastroenterologist who had worked with the anesthesiologist and a physician who had arranged the work for the anesthesiologist. The suit alleged both had vicarious liability for the anesthesiologist's actions. The court had different views on each of them.

Sam Bernard arrived at the office of Edward S. Goldberg, MD, for a colonoscopy. Brian A. Goldweber, MD, the anesthesiologist for the procedure, administered sodium pentothal and propofol to Mr. Bernard, but it turned out the patient had not properly prepped for the procedure and he was sent home. Five months later, Mr. Bernard tested positive for hepatitis B.

The cause of Mr. Bernard's hepatitis became clear 3 months later, when the New York City Department of Health and Mental Hygiene began investigating Dr. Goldweber for spreading hepatitis B among patients. The department determined that Dr. Goldweber contaminated multi-dose vials by reinserting a used syringe into them. He was charged with gross negligence and his license was revoked.

Mr. Bernard filed a lawsuit against Dr. Goldweber for the hepatitis infection, and upon his death from causes unrelated to his hepatitis, his family continued to pursue the lawsuit. Since the anesthesiologist had declared bankruptcy, the suit also named Dr. Goldberg and Abbe J. Carni, MD, an anesthesiologist who retained Dr. Goldweber to provide anesthesia for Dr. Goldberg. Both physicians asked the judge to dismiss them from the case.

Dr. Carni was charged with negligence in selecting and instructing Dr. Goldweber. But to be responsible for Dr. Goldweber's actions, Dr. Carni would have had reason to anticipate that Dr. Goldweber had an inclination to break sterile technique. And under the legal concept of "apparent authority," Mr. Bernard would had to have seen Dr. Carni as an agent of Dr. Goldweber's. The judge ruled that in both instances this would not have been the case. Dr. Carni was dismissed from the lawsuit.

Dr. Goldberg's liability was a different matter, however. Even though Dr. Goldweber was neither an employee of nor an independent contractor of his, the judge noted that the patient contracted with Dr. Goldberg for the procedure and did not even know Dr. Goldweber. Also, the anesthesiologist was working in Dr. Goldberg's office under the surgeon's implicit approval. For these reasons, the judge refused to dismiss Dr. Goldberg from charges of vicarious liability.

A. Jude Avelino, the lawyer for the Bernard family, and Samir Patel, the lawyer for Dr. Goldberg, did respond to requests for comment. John G. Zeitler, the attorney for Dr. Carni, declined to comment.

Leigh Page