Gilinsky v. Indelicato, 93-CV-893 (JS).

• Decision Date: 28 July 1995
• Docket Number: No. 93-CV-893 (JS).,93-CV-893 (JS).
• Citation: Gilinsky v. Indelicato, 894 F. Supp. 86 (E.D. N.Y. 1995)
• Parties: Barbara GILINSKY, Plaintiff, v. Joseph Rosario INDELICATO, D.C., Defendant.
• Court: U.S. District Court — Eastern District of New York

894 F. Supp. 86

Barbara GILINSKY, Plaintiff, v. Joseph Rosario INDELICATO, D.C., Defendant.

No. 93-CV-893 (JS).

United States District Court, E.D. New York.

July 28, 1995.

Alexander J. Drago, Porzio, Bromberg & Newman, P.C., New York City, for plaintiff.

Joseph J. Rava, Killarney & Salmon, New York City, for defendant.

MEMORANDUM AND ORDER

SEYBERT, District Judge:

In the instant personal-injury action founded upon diversity jurisdiction, plaintiff Barbara Gilinsky brings suit against the defendant, Dr. Joseph Rosario Indelicato, alleging that his negligent conduct contributed to the injuries she sustained on September 24, 1990. The plaintiff alleges that, on that day, she suffered a stroke while under the chiropractic care and treatment of an individual named Dr. Kevin Parks. Unaware of the severity of the plaintiff's condition, Dr. Parks called the defendant for consultative advice. According to the plaintiff, the defendant's failure to recommend emergent medical treatment during a series of seven conversations with Dr. Parks, that traversed a period of approximately five hours, constituted a breach of the defendant's duty of care.¹

The defendant now moves for summary judgment dismissing the plaintiff's complaint in its entirety on the ground that a physician-patient relationship did not exist between the parties. For the reasons that follow, the defendant's motion is denied.

FACTUAL BACKGROUND

Viewed in the light most favorable to the plaintiff, the record shows that on September 24, 1990, plaintiff Barbara Gilinsky visited the office of Dr. Kevin Parks, a chiropractor in Wall Township, New Jersey. She arrived at his office at approximately 9:10 a.m. and immediately was seen by the doctor. During the preceding five years, Dr. Parks had treated Ms. Gilinsky on several occasions without encountering difficulty. On the day in question, however, Dr. Parks performed an adjustment of her neck, which precipitated an intense headache, nausea, vomiting, dizziness, a loss of balance, slurred speech, and visual disturbances.

The plaintiff's symptoms were unusual to Dr. Parks and he was greatly concerned. As such, Dr. Parks decided to telephone Dr. Indelicato to discuss the plaintiff's condition with him.

At the time of the incident in question, Dr. Parks was enrolled in a post-doctoral chiropractic neurology residency program sponsored by the New York College of Chiropractic. Dr. Indelicato was assigned as Dr. Parks' senior neurologist to monitor his progress and help him through any difficulties that he encountered during the neurology residency. Dr. Indelicato's responsibility in this capacity arose as a condition to maintaining the status of diplomate in neurology at the New York College of Chiropractic; to retain his diplomate status, he was required to stay active in chiropractic neurology by volunteering to answer the questions of new students enrolled in the course. Dr. Parks regularly communicated with Dr. Indelicato by mail, sending him weekly reports of his examinations. Prior to the subject incident, the two doctors had previously spoken by telephone; one such discussion concerned the treatment of a teenage girl who suffered from back pain.

At 10:18 a.m., while the plaintiff rested with her head on Dr. Parks' desk, Dr. Parks placed a telephone call to Dr. Indelicato at his office in Commack, New York. According to telephone records, this first call lasted 9 minutes. In this call, Dr. Parks identified himself, stated that there was an emergency, and asked to speak with Dr. Indelicato. Dr. Parks told the defendant that he had a patient in his office, advised him of her vital signs and symptoms, and that the symptoms ensued after chiropractic manipulation. The defendant expressed an opinion that the plaintiff was suffering from cervical disequilibrium. He instructed Dr. Parks to perform gentle-range-of-motion testing, and to use electrical stimulation and high-volt galvanism. Dr. Parks documented the defendant's advice in his office records and followed the instructions after the first telephone call was completed. The plaintiff's speech then became noticeably slurred, and she momentarily blacked out as she rested on a sofa bed.

A second, 10-minute conversation occurred when Dr. Parks called the defendant at 11:18 a.m. During this telephone conversation, Dr. Parks updated the defendant on the case and the defendant advised him to treat the plaintiff with ultrasound. Dr. Parks followed this advice.

A third conversation occurred when Dr. Indelicato telephoned Dr. Parks at 12:25 p.m.; according to Dr. Indelicato's telephone records, this call lasted 7 minutes. During the next three hours, Dr. Parks and Dr. Indelicato spoke on four additional occasions. There is evidence that the defendant also advised Dr. Parks to take x-rays of the plaintiff's neck; at his deposition for the instant action, however, Dr. Parks could not recall whether he took the x-rays at the defendant's direction. See Pl.Ex. F, at 56-58.

According to the record, on September 24, 1990, between approximately 10:10 a.m. and 3:32 p.m., Dr. Parks and Dr. Indelicato had 7 telephone conversations lasting a total of 38 minutes. Three of these telephone calls were made by Dr. Indelicato to Dr. Parks' office. See Pl.Ex. H. The plaintiff's condition was discussed during each of these calls. Dr. Parks, however, did not inform Dr. Indelicato of the plaintiff's full five-year medical history, did not identify her by name, and did not forward any records to Dr. Indelicato for his review. In addition, while Dr. Parks followed Dr. Indelicato's advice, he acknowledged that he was free to accept or reject the proffered advice. Although Dr. Parks called Dr. Monte B. Pellmar, a medical neurologist, at approximately 2:00 p.m., at no time prior to 2:00 p.m. did Dr. Indelicato advise Dr. Parks to seek emergent neurological care for the plaintiff.

The plaintiff remained at Dr. Parks' office until a friend arrived, at approximately 3:30 p.m., to drive her to the office of Dr. Pellmar, in Freehold, New Jersey. Although the plaintiff was aware that Dr. Parks had been on the telephone during her stay at his office, had described to another person her condition, and had provided short answers such as "yes," "no," and "okay," she had no knowledge of the identity of the person with whom Dr. Parks was speaking, and indeed had never met Dr. Indelicato prior to this incident. In the days that followed, Dr. Indelicato did not bill the plaintiff for his services, or attempt to communicate with her in connection with her condition.

The plaintiff subsequently was diagnosed as having suffered a stroke during the course of her stay at Dr. Parks' office. According to the plaintiff, her injuries, many of which are permanent, could have been mitigated had she received immediate medical or neurological attention at the nearest hospital.

DISCUSSION

Under the law of the Second Circuit, a district court must weigh the following considerations in evaluating whether to grant a motion for summary judgment with respect to a particular claim:

First, summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Second, the burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists. In considering that, third, all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Fourth, the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.... Finally, the trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding, it does not extend to issue-resolution.

Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir.1994) (internal case citations omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.").

The defendant moves for summary judgment dismissing the plaintiff's complaint in its entirety on the ground that a physician-patient relationship was never created between the parties. The plaintiff argues, meanwhile, that a physician-patient relationship may be implied under the circumstances presented, or alternatively, that the defendant may be held liable under principles of ordinary negligence for having voluntarily assumed a duty.² The Court now turns to address the merits of each of these contentions.³

I. Medical Malpractice Claim

The defendant contends that summary judgment should be granted dismissing the plaintiff's complaint in its entirety because the record is devoid of evidence to show that a physician-patient relationship existed between the parties. The plaintiff, in turn, argues that the existence of a physician-patient relationship is a question of fact for the jury to decide, and contends that such may be found to exist under the circumstances of this case, in view of both the duration and the detail of the consultative communications that Dr. Indelicato made to Dr. Parks with respect to a specific person, and the foreseeability to Dr. Indelicato that Dr. Parks would follow his instructions.

"The requisite...