Injury During Adversary’s Medical Exam is Med Mal, Not Negligence
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).
Arons Authorizations: What They Can Say (in the Second Dept., anyway)
In Arons v. Jutkowitz, et al, 9 N.Y.2d 393, 850 N.Y.S.2d 345, 880 N.E.2d 831 (2007), New York’s Court of Appeals held that plaintiff could be compelled to authorize defense counsel to conduct ex parte, off-the-record interviews with non-party treating physicians, as long as a HIPAA-compliant authorization was utilized.
As helpful as that decision was in clarifying what the necessary prerequisites were to conducting such interviews, it left some questions open. One of them has just been addressed by the Appellate Division, Second Department, in a case that was decided June 9, 2009, Porcelli v. Northern Westchester Hospital Center, NY Slip Op 04881 (2d Dept. 2009).
What language can be included on the face of the HIPAA-compliant authorization, and can it serve to alert the doctor that his or her participation is voluntary, and is sought solely to assist defense counsel at trial?
According to Porcelli, a plaintiff may now place, directly on the face of the authorization, a highlighted statement that the purpose of such an informal, ex parte interview sought by defense counsel is solely to assist defense counsel at trial, and that the doctor’s particiapation is voluntary. The voluntariness has not been an issue since the Arons decision, which specifically noted that “the treating physicians remain entirely free to decide whether or not to cooperate with defense counsel. HIPAA-compliant authorizations and HIPAA court orders cannot force a health care professional to communicate with anyone…” Arons v. Jutkowitz, 9 N.Y.2d 416.
But whether plaintiffs could alert subsequent treating physicians regarding the voluntariness, and advise them that the purpose behind such interviews was to help defendants, whose interests are naturally adverse to those of plaintiffs, are relatively unsettled areas. In arriving at its decision in Porcelli, the Second Department looked back to Arons, which suggested that it was crucial that the physician be advised of such information up front, so that “an individual who agrees to be interviewed will not unwittingly disclose priviliged information regarding a medical condition not at issue in the litigation.”
This is a well-considered and thoughtful decision that respects the importance of informal discovery, but does so in a manner that forces that discovery, to the extent possible, to stay within areas relevant to the case.
Back From the Wars, and Angry at the 1st Dept.
OK, OK, I know it’s been a while since I’ve checked in. Sorry, but some of us blawgers actually have to try cases now and then. And as any fellow trial lawyer knows, it is an all-consuming adventure.
I’ve been trying to relax a little since returning from the trial wars. But then I scanned the recent 1st Dept. slip opinions, and got angry. In Flores v. Langsam Property Services, et al. , NY Slip Op 04747 (1st Dept. 2009), which was decided on June 11, 2009, that Court perverted justice in a manner I have not seen for quite some time.
In this personal injury case, Ms. Flores, the plaintiff, had complained repeatedly to her landlord about hot water that was constantly dripping and streaming from her showerhead. The complaints were ignored. The problem was so acute that plaintiff, a grandmother, had to place towels over the showerhead to protect her grandchildren when she bathed them. Moreover, other tenants in the building had voiced similar complaints. Ultimately, Ms. Flores was burned by a sudden burst of scalding water from the same showerhead, after it had been turned off, prompting the law suit.
The 1st Dept., upon reviewing the lower court’s denial of defendant landlord’s motion for summary judgment dismissal, reversed that decision, and granted defendant’s motion. Why? Because they found insufficient evidence that the landlord had been placed on notice of the problem. Despite the proof submitted by plaintiff, the 1st Dept. wrote “Plaintiff’s prior complaints had concerned hot water dripping from the shower. The water that scalded plaintiff was, as described by her, a strong stream and very hot. Notice of a dripping shower will not suffice when the defect that injured the plaintiff was unrelated and not readily apparent” (italics are my own).
Unrelated? Right. If you’re searching for the reasoning behind this decision, don’t waste your time. There isn’t any–any that could be called “sound,” anyway. And isn’t sound reasoning what we count on our appellate jurists to have and dispense? This decision is just plain wrong on the law, lacking in common sense, and unjust to the plaintiff. 1st Dept., you get a failing grade on this one.