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Injury During Adversary’s Medical Exam is Med Mal, Not Negligence

Posted by Andrew J. Barovick | Jun 26, 2009 | 0 Comments

In a decision issued June 24, 2009 by New York's Court of Appeals, it found that a plaintiff who was injured by the defendant's examining orthopedist–part of the discovery process in an auto accident case–can bring suit only for medical malpractice, and not standard negligence.  This was the pivotal issue in Bazakos v. Lewis , NY Slip Op 05199 (2009), because plaintiff had waited until 2 years and 11 months beyond the time he was injured before bringing suit.  He was therefore time-barred from pursuing a claim in medical malpractice, which has a 2 and 1/2 year statute of limitations.  Apparently because of this impediment, plaintiff based his claim on a standard negligence theory, which has a 3 year statute of limitations.

Plaintiff claimed that when he reported to defendant's examining orthopedist, the orthopedist simultaneously pulled and twisted his head, causing him injury.  The Court of Appeals found that the circumstances created a limited physician-patient relationship, and that the act upon which the suit was based constituted “medical treatment by a licensed physician,” so that the negligent act was “not ordinary negligence, but a prototypical act of medical malpractice.” (citations omitted).

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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