Malpractice claim dismissed where victim's attorney did not file affidavit by nurse practitioner
David Fineis saw a nurse practitioner at Otto Community Health Center and his lab work documented an elevated PSA level (prostate-specific antigen). The NP sent him to a radiologist who confirmed after ultra-sound that the PSA should be re-tested in six months. Nevertheless, no one told Fineis about the Radiologist's recommendation and no follow-up was ordered. Seven years later, when the PSA was finally repeated, prostate cancer was diagnosed and Fineis endured a radical prostatectomy. He filed a lawsuit, arguing that the Nurse Practitioner committed malpractice in failing to schedule him for follow-up tests as recommended by the radiologist. His suit was filed against Dr. Dean G. Sienko, the physician who theortically supervised Otto's NP (and under whose medical license the treatment was billed to Fineis and his insurer).
The trial court dismissed the case because Fineis did not support the lawsuit with an Affidavit of Merit signed by a Nurse Practitioner. Fineis argued that the physician whose name appeared on the billings and medical chart should be responsible for the inadequate care and that it was fraud for the doctor to bill for NP treatment that he did not actually supervise.The Court of Appeals essentially concluded that in the context of a malpractice case, the inadequate supervision or potential fraud did not matter. It held that the doctor was not obligated under Otto rules to supervise each medical patient's care and therefore the doctor did not breach an express duty to Fineis. Even though the care was billed under a doctor's license, the operative standard of care was that of a NP and Fineis' Affidavit of Merit signed by a physician was not adequate to preserve a claim against a NP.