A patient who suffers a surgical site infection following a procedure might not be able to sue the surgery center at which it was performed. According to a Florida appeals court that recently dismissed a surgery center from a malpractice case, a facility's liability depends largely upon who chose the venue.

Pain specialist John F. Cooney, MD brought a spine pain case to the Northpoint Surgery & Laser Center in West Palm Beach, Fla. Court documents report that their patient, Erik Kristensen, acquired an infection following the procedure and later died.

In 2006, Michelle Kristensen-Kepler, a representative of Mr. Kristensen's estate, sued Dr. Cooney, his practice partner Kevin Chaitoff, MD, and Northpoint for malpractice. A state trial court dismissed the surgery center from the proceedings and, after an appeal, a higher court affirmed that ruling last week.

The surgery center was not directly liable for Mr. Kristensen's complications and death, the court said, because Mr. Kristensen did not choose Northpoint as the site of his surgery. "The patient chose Dr. Cooney to perform the procedure and Dr. Cooney directed the patient to Northpoint," wrote Judge Thomas H. Barkdull III in his ruling. "The patient did not rely on Northpoint to select the doctor ... . Northpoint had no right to control or direct Dr. Cooney's treatment of the patient, so it cannot be held liable for the doctor's negligence."

The attorney representing Northpoint and Drs. Cooney and Chaitoff was traveling and could not be reached. Ms. Kristensen-Kepler's attorney did not return a request for comment. The 2 physicians are still standing trial for malpractice in state court.

Kent Steinriede