Free Consultation:212-766-5222

Leav and Steinberg Team

Not Following Doctor’s Orders Is Not Medical Malpractice

Medical Malpractice is “the improper or poor performance of a physician, … and other medical professionals.” Malpractice can be intentional or negligent due to an error or omission on the part of the doctor. If a person does not follow a doctor’s instructions or checks themselves out of a hospital, it is not the doctor’s or hospital’s fault for anything that happens to that person.

The Situation

A man went to a hospital because he felt suicidal. The hospital had personnel watch over him and put him on medication to stabilize him. He improved and checked out of the hospital.

A month later, the man’s friend brought him into the emergency room intoxicated. “He showed signs of severe intoxication, including red eyes, garbled speech and a strong smell of alcohol. His blood-alcohol content was extremely high: .369%.” The man asked to enter the hospital’s detoxification facility. After waiting four hours to be transferred to the detox facility, the man removed his IV and told the nurse he was leaving by taxi. The nurse told the man to call a friend instead and then went to find his treating physician. By the time the nurse and doctor returned, the man had left.

Neither the nurse nor the doctor called the police to alert them about the man and his condition. The doctor did inform hospital security about the situation, but did nothing further.

About two hours later, the man was hit by a vehicle and injured. He sued the doctor, the doctor’s professional corporation, and the hospital for medical malpractice. The defendants moved for summary judgment that the man’s lawsuit should be dismissed. The trial court denied the motions. The defendants’ appealed.


The appellate division granted the motions for summary judgment and the man appealed to the New York State Court of Appeals. The Court of Appeals noted that we live in a free society and people cannot be detained except within narrow parameters. The law only permits “restraint of people whose mental state might make them a danger to themselves or others only in extreme circumstances.” Since the man voluntarily came to the hospital and voluntarily sought to enter the detox facility, the Court of Appeals stated that state law made no provisions for involuntarily detaining the man because he showed no signs of being a danger to himself or others.

The man argued that since he had been admitted to the hospital the month before for suicidal thoughts, the hospital should have known he would be injured. The court disagreed with this argument and affirmed the appellate division’s decision granting summary judgment.

What Does This Mean?

If a person checks themselves out of a hospital facility and something happens to them, it is not the hospital’s fault. A person has the right to seek treatment and to not follow a treatment recommendation. But, if a person does not follow a treatment recommendation, they cannot sue the doctor, hospital, or other medical facility for malpractice. Yet if a doctor or hospital does not follow the proper procedure or best practices and you are injured, it would be in your best interest to seek assistance from our knowledgeable attorneys to protect your rights.

Photo Credit: wilding.andrew via Compfight cc

See Related Posts:

Blue Bikes Offer New Transportation Mode, But Dangers Still Abound

Exploding Gas Tanks Leads to Major Vehicle Recall

First Responders Delayed By Human Error