Meyers v. Epstein

Meyers v. Epstein,
No. 01-Civ. 1754 (GWG) (S.D.N.Y. Nov. 14, 2002)

The
United States District Court for the Southern District of New York ruled that
two physicians could be liable when one of the physicians stated that he would
perform brain surgery on an 11-year-old girl and the other physician actually
performed the operation.

Prior to surgery, the parents of the minor patient signed a form consenting
to the operation by Dr. Epstein, "his assistant," or "his designees."
The parents claimed that Dr. Epstein subsequently reassured them that he would
be performing the surgery personally. When the parents learned that Dr. Epstein
had not, in fact, performed the surgery, they sued for malpractice. The court
found that the parents had adequately alleged that Dr. Epstein’s behavior deviated
from the standard of care and that this deviation was the proximate cause of
any "mental anguish" to them. Thus, the court held that the parents’
claim for malpractice could proceed to trial.

The parents also sued the physician who actually performed the operation for
battery. The court noted that "battery" is defined as "intentional
wrongful physical contact with another person without consent." Since the
parents alleged that the terms of the consent form had been subsequently changed
by Dr. Epstein’s verbal reassurance that he would perform the surgery, the court
allowed this claim to proceed to trial so a jury could determine whether or
not the parents had, in fact, consented to anyone other than Dr. Epstein operating
on their daughter.