Heller v. Peekskill Community Hosp.

• Decision Date: 08 November 1993
• Citation: 603 N.Y.S.2d 548,198 A.D.2d 265
• Parties: David HELLER, Respondent, v. PEEKSKILL COMMUNITY HOSPITAL, et al., Defendants, Jay Joseph Winokur, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 548

603 N.Y.S.2d 548

198 A.D.2d 265

David HELLER, Respondent, v. PEEKSKILL COMMUNITY HOSPITAL, et al., Defendants, Jay Joseph Winokur, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 8, 1993.

O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (Carolyn A. Loftus, on the brief), for appellant.

Denise M. Dunleavy, New York City, for respondent.

Before BALLETTA, J.P., and ROSENBLATT, MILLER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for medical malpractice, the defendant Jay Joseph Winokur appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 16, 1991, which denied his motion, inter alia, for summary judgment dismissing the complaint insofar as it is asserted against him.

ORDERED that the order is affirmed, with costs.

The plaintiff, after allegedly injuring his back while at work, was sent to the appellant Dr. Jay Winokur, to be examined for purposes of determining his eligibility for Workers' Compensation. The plaintiff alleges that, over the course of the several examinations conducted by Dr. Winokur, Dr. Winokur not only recommended physical therapy and suggested a therapist, but also told the plaintiff that his back condition had improved and that he was able to return to work without restriction of his activities. However, the plaintiff alleges, his return to work was premature and either caused a herniated disc or exacerbated an undiagnosed herniated disc, necessitating surgery. This, he asserts, was medical malpractice. Dr. Winokur moved to dismiss the complaint, or for summary judgment, alleging that no doctor-patient relationship existed between the parties.

In order to maintain an action to recover damages arising from medical malpractice, a doctor-patient relationship is necessary (see, Lee v. City of New York, 162 A.D.2d 34, 560 N.Y.S.2d 700; Murphy v. Blum, 160 A.D.2d 914, 554 N.Y.S.2d 640; Hickey v. Travelers Ins. Co., 158 A.D.2d 112, 558 N.Y.S.2d 554; Fraser v. Brunswick Hosp. Med. Center, 150 A.D.2d 754, 542 N.Y.S.2d 204). This relationship is created when professional services are rendered and accepted by another person for purposes of medical or surgical treatment and may be based either on an express or implied contract (see, Lee v. City of New York, supra ). In general, this relationship is not formed when a doctor examines a patient solely for purposes of rendering an evaluation for an employer or potential employer (see, e.g., Lee v. City of New York, supra [firefighter's physical exam]; Murphy v. Blum, supra [Workers' Compensation claim]; Hickey v. Travelers Ins. Co., supra [Workers' Compensation claim]; LoDico v. Caputi, 129 A.D.2d 361, 517 N.Y.S.2d 640 [Workers' Compensation claim]. However, an important exception to this rule occurs when the examining doctor causes further injury by either affirmatively treating the patient or affirmatively advising the patient as to a course of treatment (see, Lee v. City of New York, supra; Hickey v. Travelers Ins. Co., supra; LoDico v. Caputi, supra; Licht v. Hohl Mach. &amp Conveyor Co., 158 A.D.2d 1000, 551 N.Y.S.2d 149). In order for affirmative advice to be actionable, the plaintiff must prove: (1) that the advice given was incorrect, (2) that it was foreseeable that the plaintiff would rely on such advice, and (3) that the plaintiff did in fact rely on the advice to his or her detriment (see, Lee...