Dr. Barnes is employed by Emergency Physicians, Inc. ("EPI"), a professional corporation that supplies all of MSG's physicians and both of MSG's physician assistants. EPI's contract with MSG requires that MSG's billing office prepare on EPI billheads, and send, all of EPI's bills for emergency room services rendered at OSG's emergency room. EPI pays MSG an annual stipend for this service.

EPI's contract with MSG provides in part: "The practice of medicine by EPI's physicians shall be solely under the supervision and control of EPI, and OSG shall under no circumstance interfere with or in any other way control, attempt to control, or have the right to control professional judgments of EPI's physicians in the treatment of patients. EPI shall be solely responsible for the supervision and control of EPI's physician assistants, and MSG shall under no circumstances control, attempt to control, or have the right to control, the supervision by EPI of its physician assistants or the professional judgment of EPI's physician assistants in the treatment of patients."

MSG's trustees appoint the chief of each clinical department, including Dr. Barnes, who is Chief of OSG's Department of Emergency Medicine.   In this capacity he promulgates emergency room protocols and policies which cover physicians, physician assistants, and nursing staff.

MSG provides the physical space for the emergency room and the emergency room equipment. MSG employs all emergency room nurses and all other non-physician and non-physician assistant personnel, such as receptionists, orderlies, etc. 

Radiologic assistance to the MSG emergency room is supplied by Seethrough, Inc., a professional corporation which supplies MSG with all of its radiologists. EPI’s physicians, when treating patients, wear white coats containing their names on the left breast pocket, but no other information.

Mrs. Wilson is a 68-year-old lady with a history of cardiac problems who reports to the emergency room at MSG late at night with a complaint of chest pain of two hours' duration. Dr. Barnes is on duty at the time and attends to Mrs. Wilson. He orders the usual cardiac tests, all of which show no evidence of heart attack. Dr. Barnes also orders a chest x-ray, which, before discharging Mrs. Wilson from the emergency room, he interprets as normal, though he notes in the record what he believes to be an artifact (image defect caused by the x-ray process itself, having no diagnostic value) in the left lung.

When Dr. Barnes discharges Mrs. Wilson from the emergency room, he advises her to follow up with her own cardiologist, a physician who is on the medical staff at a hospital other than MSG. He has no privileges at MSG.

Mrs. Wilson, symptom– free after spending a night at MSG for observation, leaves MSG and consults her cardiologist, Dr. Murphy, the next day. She tells him of her overnight stay at MSG. Dr. Murphy orders a wide variety of cardiac tests over a period of four weeks. They uncover no new developments in Mrs. Wilson’s heart, and he so advises her. He takes no further diagnostic steps.

At the time Mrs. Wilson was seen at MSG’s emergency room, no radiologist was on duty, though a radiologist was on call and could have viewed Mrs. Wilson’s x-ray films via a special electronic circuit, on a television set at home.

MSG requires that all x-ray studies be officially interpreted by a radiologist even if a physician other than a radiologist has already interpreted the x-ray.   Dr. Hammond, a radiologist, sees Mrs. Wilson's x-ray in the morning, just a few hours after her discharge from the emergency room.      Dr. Hammond prepares a radiology report that calls the "artifact" seen by Dr. Barnes "a small opacity the significance of which cannot be determined."    He states, "Further diagnostic measures are recommended to determine the significance, if any, of this opacity." The report is transmitted electronically to the emergency room, where it is placed with Mrs. Wilson's record but not read by anyone in the emergency room.

Eight months later Mrs. Wilson is diagnosed with cancer in her left lung; she dies from the cancer six weeks after being diagnosed.

Question 3A. What difficulties do you believe Mrs. Wilson's estate might have in prosecuting its case against each of the physician(s) or entity/ies identified in the factual narrative?

Question 3B. If a suit is brought against EPI,MSG Dr. Barnes, Seethrough, Inc. Dr. Hammond, Dr. Murphy, who wins and why?