The plaintiff in Antaki v. Lerman sued North Shore University Hospital Plainview and Craig C. Lerman, MD alleging that he was the victim of medical malpractice in the hospital’s emergency room for failure to diagnose the presence of the bacteria C-difficile in his colon, which failure ultimately led to undergo surgery including a subtotal colonoscopy for the removal of the mega colon. The defendants requested that the trial court permit the jury to consider allocating total liability not only among the defendants, but also against the plaintiff’s father and his uncle, both of whom are physicians.
The plaintiff’s father, August Antaki, MD, was a retired or semi-retired pathologist who had a ‘small’ office attached to his house where he saw patients from time to time as a primary care physician. The plaintiff’s cousin, Minou Absy, MD, was an infectious disease physician who knew of plaintiff’s history from multiple conversations with the family.
The purported malpractice on the part of Dr. Absy was his prescription of a course of amoxicillin followed by a course of augmentin to treat plaintiff’s chronic sinusitis. Dr. Antaki’s purported malpractice was in the manner he listened for bowel sounds, at Dr. Absy’s suggestion, after the plaintiff had already been to the hospital’s emergency room.
New York law permits a jury to allocate liability not only to named parties but also to non-party tortfeasors over whom the plaintiff could have acquired jurisdiction. (Thus liability cannot be allocated to non-parties over whom jurisdiction cannot be obtained or who are not identifies.)
This rule can greatly reduce the named defendants’ exposure in the event of a verdict in favor of the plaintiff. Nassau County Supreme Court Justice F. Dana Winslow, in a decision dated October 8, 2008, aptly noted that application of this rule, by permitting a claim by the named physician and hospital against August Antaki, would, in effect, permit an indirect claim for malpractice by a son against his own parent.
Judge Winslow further stated: “…to hold a parent responsible under these circumstances would flip the familial and nuclear family and institution to such a degree that it would, in effect, prohibit a parent from giving any sort of advice.”
The Court concluded: “The Court believes that in the interest of justice and in the interest of maintaining societal equilibrium, fairness, the family unit and its hierarchy and responsibilities one to another, there cannot be a determination, except under the most grievous of circumstances, that could hold the parent responsible for any kind of advice or action given to the child, and the Court finds that this is the standard to be applied.
“In conformity with common sense, and in the absence of authority for or against such proposition, this Court determines that, except in rare and egregious circumstances, the ministrations of a parent who happens to be a physician, in the ordinary care of his or her offspring, shall not be deemed to create a physician/patient relationship capable of resulting in medical malpractice liability.”
In fact, this decision follows the logic of the seminal case of Holodook v. Spencer, decided by the New York Court of Appeals in 1973. The Holodook rule is that a parent cannot be held secondarily liable for contribution to third parties for damages resulting from failing to supervise his or her child.
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