Chiasera v. Employers Mut. Liability Ins. Co. of Wisconsin
| Decision Date | 28 November 1979 |
| Citation | 422 N.Y.S.2d 341,101 Misc.2d 877 |
| Parties | August CHIASERA and Helen Chiasera, Plaintiffs, v. EMPLOYERS MUTUAL LIABILITY INSURANCE CO. OF WISCONSIN and Ignatius S. Bertola, M.D., Defendants. |
| Court | New York Supreme Court |
James J. Moran, Buffalo, for plaintiffs.
Miles, Cochrane, Grosse, Rossetti & Chelus, Buffalo (R. Thomas Miles, Buffalo, of counsel), for defendants.
Plaintiffs, August and Helen Chiasera, seek an order of this Court pursuant to CPLR 3211(b), dismissing an affirmative defense as interposed in the answer of the Defendant, Ignatius S. Bertola, M.D.
The underlying facts are not disputed. Plaintiff, August Chiasera, injured his back while working at Spaulding Fibre Co., Inc. in Tonawanda, New York on March 1, 1975. Plaintiff was directed by Defendant, Employers Mutual Liability Insurance Company of Wisconsin, the workmen's compensation carrier for Spaulding, to be examined by Defendant, Bertola. Plaintiff submitted to a physical examination on March 22, 1976 and now alleges that, during the course of that examination, he was injured by Defendant, Bertola.
Plaintiffs commenced suit against Defendant, Bertola, on March 6, 1979 on a theory of ordinary negligence. Defendant, Bertola, however, responds that Plaintiffs' cause of action is for a breach of a duty in rendering professional medical services and, therefore, sounds in medical malpractice. As such, Defendant raises the affirmative defense that the Plaintiffs' cause of action is time barred, having been commenced more than two and one half years subsequent to accrual (CPLR 214-a).
At the outset, upon the facts submitted, we cannot conclude that a physician-patient relationship, based on either an expressed or implied contract, existed between Plaintiff, August Chiasera, and Defendant, Bertola. Defendant, Bertola, is here in the employ of Defendant, Employers Mutual, to provide it with his professional opinion of the extent of Plaintiff, August Chiasera's, injury.
In this posture, the physician examines not for the purpose of treatment, but solely for the insurance company's review, thereby allowing it to better evaluate the merits of the employee's claim. Should the company decide to challenge the compensation claim, the physician's report would subsequently be admitted as evidence at a compensation hearing and serve as the basis of the examining physician's testimony at that hearing. Irrespective of the statutory scheme of the Workmen's Compensation Law which has removed the traditional adversary stance between an injured employee and his employer, we believe that the physician's examination under these circumstances may fairly be construed as adverse to the claimant's interests. Such an examination is not unlike the physical examination demanded of a plaintiff in a personal injury...
To continue reading
Request your trial
-
Polidoro v. Chubb Corp., 04 CIV. 3184.
...a negligence claim is possible in this context. Plaintiff compares her claim to that found in Chiasera v. Employers Mut. Liability Ins. Co. of Wisconsin, 101 Misc.2d 877, 422 N.Y.S.2d 341 (1979). The plaintiff suffered a back injury on the job and submitted to a physician's examination purs......
-
Polidoro v. Chubb Corp., 04 CIV.3184.
...a negligence claim is possible in this context. Plaintiff compares her claim to that found in Chiasera v. Employers Mut. Liability Ins. Co. of Wisconsin, 101 Misc.2d 877, 422 N.Y.S.2d 341 (1979). The plaintiff suffered a back injury on the job and submitted to a physician's examination purs......
-
Mero v. Sadoff
...dicta should not be followed. The parties have cited a number of out-of-state cases dealing with the issue. In Chiasera v. Employers Mut. Liability Ins. (1979) 101 Misc.2d 877 , cited by defendant, plaintiff was examined by a physician at the direction of his employer's workers' compensatio......
-
Greenberg v. Perkins
...at 6-7; Hoover, 203 A.2d at 863; Rogers, 237 N.W.2d at 597; Henkemeyer, 465 N.W.2d at 439; Chiasera v. Employers Mut. Liab. Ins. Co. of Wis., 101 Misc.2d 877, 422 N.Y.S.2d 341, 342 (N.Y.Sup.Ct.1979); Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705, 710 (Tex.Civ.App.1963). Many of these ......