Finger Pointing Between Defendant-Doctors Can Help a Medical Malpractice Victim Win

John Fisher
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Stopping Medical Injustice

All surgeries occur with multiple healthcare professionals.  Nurses, surgical techs, physician assistants, and doctors are all commonly used to help perform a surgery.  Surgeons and anesthesiologists are the most common doctors, and perform very different tasks.  As a patient about to undergo surgery, it is very hard to keep track of every healthcare professional and what they are doing for you.


That is why when a victim suffers medical malpractice, he or she needs to know how to proceed to rectify his or her rights.  Because commonly in this situation, when a major error occurs the surgical staff will blame the anesthesia team, and the anesthesia team will blame the surgical staff.  This is particular true with certain injuries, such as nerve injuries or puncture issues to victim structures like arteries.  


In that situation, the doctrine of res ipsa loquitur will find both doctors liable.  But this doctrine is hard to use.  You must prove 1) that you did not contribute to the injury, 2) that the injury does not happen but for negligence, and 3) the defendant was in exclusive control of the instrumentality causing the injury.  But when there are two doctors, can there be exclusive control?


YES!  The Appellate Division, Third Department, has found exclusive possession even though there have been multiple doctors.  Essentially, the ruling is that these doctors are the ones in exclusive possession.  Since the injury does not occur but for negligence and was not caused by the patient, the victim of the medical malpractice should not be stuck left to prove who caused the injury.


Therefore, in a situation where two healthcare providers are pointing at the other, both can be liable!  And the plaintiff really wins out, because now the defendants are fighting amongst themselves and pointing fingers at themselves and not at the victim.


But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected]  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at

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