Are you liable for a colleague's mistake?

"Vicarious liability" and "ostensible agency" sound like obscure legal theories, but they can land you in court. Here's how to protect yourself.

By Berkeley Rice
Senior Editor

You may not be your brother's keeper, but don't be too surprised if you're sued because a patient is angry with a colleague. And don't be surprised if it costs you. Several recent cases prove that you can be found liable when another physician blunders.

Consider what happened to Suresh Chandani, a family practitioner in Fishkill, NY. In September 1997, he treated Eugene DiBenedetto for hemorrhoids. Chandani found that DiBenedetto also had a high PSA level and referred him to urologist Pinaki Ray. Chandani had no further contact with the patient.

Ray examined DiBenedetto, recommended a prostate biopsy, and performed the procedure in his office. Ray also put him on antibiotics before and after the surgery. At a follow-up visit, where DiBenedetto reported no problems, Ray told him the biopsy results were negative. The following month, however, DiBenedetto called Ray and reported blood in his urine, telling him he was then under the care of Hari Chakravorty, a general surgeon who shared office space with Chandani.

From October through December of that year, DiBenedetto made several visits to Chakravorty, who allegedly failed to detect endocarditis. As a result, the patient suffered bacterial endocarditis, a stroke, and congestive heart failure. He was hospitalized several times, required an aortic valve replacement, and is now partially paralyzed.

DiBenedetto filed a malpractice suit against urologist Ray (which was later dismissed) for allegedly causing the infection, and against Chakravorty for allegedly failing to diagnose it. He also sued Chandani and his corporation, Fishkill Medical Associates.

The suit claimed that Chandani was "vicariously liable" because he and Chakravorty had an apparent professional relationship. In part because Chakravorty shared office space with Chandani, he "appeared" to be in joint practice with him, says the patient's attorney. Given that appearance, Chandani could be held liable for DiBenedetto's injuries under the theory of apparent or "ostensible agency."

Chandani moved for summary judgment, arguing that while Chakravorty sublet office space from him, he was neither his partner nor his employee, and had no other financial relationship with him. In fact, Chandani was the sole officer, director, and shareholder of Fishkill Medical Associates.

In September 2001, however, the trial judge denied Chandani's motion to be dismissed from the suit. "The real issue," the judge wrote in his opinion, was whether Chandani and Chakravorty "were apparently engaged in the joint practice of medicine, thereby giving rise to an 'ostensible agency' resulting in vicarious responsibility on the part of Dr. Chandani . . . for the alleged negligence of Dr. Chakravorty."

The judge cited the following facts as "evidence of a far more extensive relationship" between the two physicians than merely sharing office space:

• The office sign listed both names under "Fishkill Medical Associates."

• The two physicians shared the same telephone and fax numbers.

• Patient registration forms contained both their names under "Fishkill Medical, PC."

• The records of urologist Ray show "Chandani — H. Chakravorty" as referring physicians.

• Chandani billed the plaintiff's HMO for services rendered by Chakravorty.

• DiBenedetto claimed that he had sought treatment from Chakravorty at Fishkill Medical Associates because of his prior relationship with Chandani.