Judicial activism protects doctor from negligence of physician's assistant he failed to supervise
Kelly Sue Symons sued the Battle Creek Emergency Room Physicians after their group failed to diagnose and treat her husband's fatal heart attack. He died one day following an E.R. visit in which he was never seen by a doctor, after the corporation's Physician Assistant treated him for muscle pain and failed to follow the appropriate standard of care. A jury entered a verdict against the corporation, the P.A. and the supervising doctor, and the trial court and the Court of Appeals upheld the verdict. Two of the Court of Appeals judges agreed, however, that the supervising doctor should be dismissed from the verdict and judgment because he never saw the patient or examined the patient's chart.
The dissenting judge characterized this decision as "legally incongruous and disingenuous" and criticized the majority for a decision that "usurps the legal judgment and decisions of the attorneys and judge trying the case, side-steps the law and the determination of a jury that had listened to all of the evidence and had been properly instructed." It will surprise few lawyers to learn that one of the judges concurring in the majority was Henry Saad: a conservative activist who is constitutionally incapable of telling an insurance company "no".
Despite the fact that physician's assistants can only practice medicine under the supervision of a doctor, and the fact that the Defense agreed that the Defendant Doctor Robert Prodinger was the P.A.'s supervisor, the concurring majority concluded that Prodinger's complete failure to participate in the decedent's care released him from liability. There's a good public policy position for you: enact a statute that allows unlicensed persons to practice medicine under a doctor's supervision--but then let the doctor off the hook so long as he remains completely disengaged from the patient's care.
If there is "justice" in this state, and if our court system truly follows the law as written--rather than allowing judges to make it up as they go--this decision will be reversed on appeal.