Does it sound in malpractice when the doctor's out?
Not in and of itself, according to the First Department, in Brown v. Bauman, decided on January 4, 2007. Plainfiffs had alleged that the obstetrician's failure to appear in the delivery room in time to deliver their child was a departure from accepted medical practice, and a proximate cause of a laceration of the mother's perineum during the birth. Defendant answered that he had arranged for a substitute physician and, according to his expert's unrebutted affirmation, when an obstetrician is unable to attend a delivery, accepted standards of practice call for the obstetrician to arrange for a competent, experienced, substitute physician. The Court found that the issue, then, is the competence of the substitute, and not defendant's absence from the operating room.