Second Department: Primary Care Physician Retains Duty to Patient After Sending to ER

On December 9, 2008, Paul Lindebaum went to his primary care physician care physician complaining of stomach pains. The physician, Dr. Richard Federbush, recommended that Lindebaum go to the emergency room at Long Island Jewish Medical Center for testing. Lindebaum complied with his doctor’s orders and the next morning faxed over the test results to Federbush. After looking over the test results, Federbush diagnosed Lindebaum with colitis and recommended he take the antibiotics he had been prescribed at the emergency room at Long Island Jewish Medical Center.

Unfortunately, Federbush had misdiagnosed Lindebaum and his condition was more serious than colitis – Lindebaum had an abscess, which subsequently infected his brain, causing permanent brain damage. Lindebaum’s wife was granted power of attorney and sued the Long Island Jewish Medical Center and Federbush.

Lindebaum’s wife claimed and her attorneys argued that both Long Island Jewish Medical Center and Federbush had taken it upon themselves to take care of her husband – and that, therefore, both should be held responsible the damage caused by the misdiagnosis and improper treatment. The Long Island Jewish Medical Center settled for an undisclosed amount before trial, but Federbush believed that he should not be held legally responsible for the Lindebaum’s diagnosis and mistreatment.

In general, doctors and nurses, when taking on a patient, assume a legal duty to provide a level of care that is generally acceptable in their medical field. Federbush essentially argued that his legal duty to care for Lindebaum concluded when Lindebaum was sent to the emergency room for testing. Therefore, according to Federbush, because he had no duty to care for Lindebaum then he should not responsible for the subsequent damage caused by the misdiagnosis. While the lower court agreed with Federbush, the Appellate Division did not and ordered a new trial.

The Appellate Division stated that Federbush “continued to have a duty to Lindebaum after he was sent to [Long Island Jewish Medical Center] for testing because Federbush was involved with Lindebaum’s care when he spoke with him regarding the preliminary test results and recommended that he continue to take the prescribed antibiotics.” In essence, the doctor-patient relationship had not ended and Lindebaum was still relying on Federbush’s medical expertise and acting on his recommendations.



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