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Counterintuitive Case Law from the Second Dept.

Posted by Andrew J. Barovick | Dec 15, 2008 | 0 Comments

As practitioners of personal injury and medical malpractice law, most of us know the difference between standard negligence, and medical malpractice, even though both can occur in a hospital or doctor's office setting.  Letting a patient who is about to be operated on fall off the surgical table so that he breaks his hip would be negligence, while operating on the wrong knee would be medical malpractice, to use two simple scenarios.  But apparently, deciding which is which in not so simple after all.

In its September 23, 2008 decision in Bazakos v. Lewis , 56 A.D.3d 15 (2d Dept. 2008) , the Second Department held that an orthopedist performing an independent medical examination (IME) on a plaintiff committed negligence, and not medical malpractice, when he allegedly rotated plaintiff's head in a rough manner during the IME, causing injury to the plaintiff.  The Second Department found that, because there was no physician-patient relationship between the plaintiff and the orthopedist hired by the defense to examine him, there could be no medical malpractice.  Absent that relationship, any injury that might occur is simple negligence.  That the defendant-physician performing the IME allegedly caused an injury while utilizing his training as a physician, and arguably utilizing it in a substandard manner, had no impact on the decision.

To the defendant in this case, the difference between the two had a profound impact, as the plaintiff had brought the case after the expiration of the 2 and 1/2-year statute of limitations for medical malpractice, but before expiration of  the 3-year statute of limitations for negligence.

In its December 2, 2008 decision of Ryan v. Korn , NY Slip Op 09579 (2d Dept. 2008) , the same Court found that burns suffered by the plaintiff as a result of a physical therapist's negligent application of heating pads were a result of medical malpractice , reasoning that “[c]onduct may be deemed malpractice, rather than negligence, when it ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'” (citation omitted).   The Court stretched to remain true to its ruling in Bazakos , reasoning that the physical therapist's conduct “derived from the duty owed to the plaintiff as a result of the physician-patient relationship.”  Apparently, the Court was referring to the physician who ordererd the physical therapy.  Naturally, this case had statute of limitations ramifications as well.

So, an orthopedist manipulating a plaintiff's head and causing injury, albeit during an IME, has not committed medical malpractice, but is negligent.  A physical therapist who uses heating pads the wrong way  has committed medical malpractice.  I sense that this is not the last we will see on this subject.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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