New York: Malpractice Claim from Needlestick Injury Reinstated on Appeal
February 4, 2003
A claim filed by a nurse who alleged that delayed medical care following a needlestick injury led to her seroconversion to HIV-positive status was reinstated on appeal.Adapted from:
Ella Carman, a nurse employed by a dialysis center, alleged that she contracted HIV as a result of accidentally sticking herself with a needle she used to draw blood from a dialysis patient. Carman immediately reported the accident to the center's administrative director, who told her to see a member of the center's group of practicing physicians. Carman saw Dr. Ma, who was a nephrologist and not an infectious disease specialist. The director said it was common practice for doctors within the group to handle all claims for workplace accidents.
Ma referred Carman to Dr. Elfatih Ismail Abter, who was not an employee of the group, but was used by the group as an infectious disease consultant. Abter reportedly failed to provide the recommended medical treatment in a timely fashion, and Carman was diagnosed with HIV. She sued the center and Abter.
The Supreme Court of New York County dismissed the complaint as barred by the workers' compensation law. Under the "fellow employee rule" of that law, dismissal was appropriate because the services provided to Carman were not available to the public and would not have been provided to her if she had not been an employee. Carman appealed. She said because Abter did not maintain an office at the center, carried his own malpractice insurance, and billed his patients at the center privately, he was not an employee of the center and therefore, was not covered under the "fellow employee rule."
The Supreme Court, Appellate Division, First Department of New York agreed with Carman's interpretation and reinstated her complaint against Abter.
AIDS Policy and Law
This article was provided by CDC National Prevention Information Network. It is a part of the publication CDC HIV/Hepatitis/STD/TB Prevention News Update.