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    My employee performed unauthorized procedures. Am I negligent

    Dr. GoldbergDr. Derm runs a large medical and cosmetic dermatology office where he offers a variety of energy-based device cosmetic procedures. He practices in a state where the performance of laser procedures can only be done by physicians, physician assistants, and nurse practitioners. He employs all of these providers in his practice, as well as many medical assistants. Unbeknownst to Dr. Derm is the fact that one of his medical assistants regularly performs cosmetic laser procedures, after hours, on his friends. Unfortunately, one of his friends had terrible complications (which the medical assistant tried unsuccessfully to treat, and was left with disfiguring facial scarring. This now former friend has sued both the medical assistant and his employer, Dr. Derm, alleging the medical assistant, by definition of his training, did not perform within the standard of care.

    What are the legal issues here?

    The standard of care is not necessarily derived from some well-known textbook. It is also not articulated by any judge. The standard of care is defined by some, as whatever an expert witness says it is, and what a jury will believe. In a case against any medical specialist, the specialist must have the knowledge and skill ordinarily possessed by a specialist in that field, and have used the care and skill ordinarily possessed by a specialist in that field, in the same field, in the same or similar locality, under similar circumstances. A failure to fulfill such duty is negligence. If the jury accepts the suggestion that the medical assistant, employed by Dr. Derm mismanaged the case and that the negligence led to damage of the patient, then the physician, as the employer might be liable.    

    Evidence of the standard of care in a specific malpractice case includes laws, regulations, and guidelines for practice, which represent a consensus among professionals on a topic involving diagnosis or treatment, medical literature, including peer-reviewed articles and authoritative texts. In addition, obviously, the view of an expert in crucial.

    Although the standard of care may vary from state to state, it is typically defined as a national standard by the profession at large.

    It would seem then that in a perfect world, the standard of care in every case would be a clearly definable level of care agreed upon by all physicians and patients. Unfortunately, in the typical situation, the standard of care is an ephemeral concept resulting from differences and inconsistencies among the medical profession, the legal system, and the public.

    At one polar extreme, the medical profession is dominant in determining the standard of care in the practice of medicine. In such a situation, recommendations, guidelines, and policies regarding varying treatment modalities for different clinical situations published by nationally recognized boards, societies and commissions establish the appropriate standard of care. Even in some of these cases, however, factual disputes may arise because more than one such organization will publish conflicting standards concerning the same medical condition. Adding to the confusion, local societies may publish their own rules applying to a particular claim of malpractice.

    Thus, in most situations the standard of care is neither clearly definable nor consistently defined. It is a legal fiction to suggest that a generally accepted standard of care exists for any area of practice. At best, there are parameters within which experts will testify.

    Unfortunately, due to the increased reliance on technology by the medical profession and unrealistic expectations by the public, physicians may sometimes run the risk of being held to an unrealistic and unattainable standard of care. But, in the end it is the physicians that establish that standard of care.

    The second potentially more important issue, and a defense for Dr. Derm, is that his employee was not authorized to do these laser procedures. This employee, in legalese called agent, can create legal liability for his employer only if he is performing within the scope of his duty. If this medical assistant is performing these rogue treatments and was not authorized by Dr. Derm to do them, Dr. Derm may very likely not be found negligent. The case may very well hinge on whether Dr. Derm has well-defined job descriptions for his employees.


    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...


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