Hollingshed v. LEVINE, MD

• Decision Date: 21 August 2003
• Citation: 763 N.Y.S.2d 595,307 A.D.2d 850
• Parties: AUDREY HOLLINGSHED, Appellant,<BR>v.<BR>EVAN LEVINE, M.D., et al., Defendants, and<BR>MONTEFIORE MEDICAL CENTER, Respondent.
• Court: New York Supreme Court — Appellate Division

307 A.D.2d 850

763 N.Y.S.2d 595

AUDREY HOLLINGSHED, Appellant,

v. EVAN LEVINE, M.D., et al., Defendants, andMONTEFIORE MEDICAL CENTER, Respondent.

Decided August 21, 2003.

Concur — Buckley, P.J., Mazzarelli, Rosenberger, Friedman and Marlow, JJ.

Plaintiff's decedent, Ms. Macauley, was a 27-year-old married woman with two small children, who worked as a statistician in the hospital's medical records department. On October 5, 1992, she went to the hospital's Employee Health Service (EHS), complaining of left calf pain. Dr. Sacco of EHS diagnosed her with a muscle strain. However, because deep vein thrombosis (DVT) is a severe condition which may present as calf pain, he also considered this diagnosis. As a precaution, Dr. Sacco sent Ms. Macaulay for a duplex ultrasound at the hospital's vascular laboratory. The results of the ultrasound were reported as normal.

On October 7, 1992, Ms. Macaulay returned to EHS, because she had fainted the previous night and bruised her face. Dr. Sacco sent her to the hospital's emergency room, where she was seen by Dr. Sacher. Dr. Sacher, an attending physician in the hospital's emergency room, was responsible for patients with acute conditions. She saw the decedent in the regular course of her emergency room responsibilities, having pulled up her chart in the order of arrival. Ms. Macaulay was billed as a private patient for this emergency room visit. The initial bill included a small employee discount.

Dr. Sacher had never worked at EHS, had no idea where EHS was located, and had never treated any patients referred from the EHS. She did not elicit a history of left calf pain, and was not aware of Dr. Sacco's diagnosis. She attributed Ms. Macaulay's loss of consciousness to a possible cardiac arrhythmia.

Dr. Sacher referred her to Dr. Moser, an attending cardiologist at the hospital. On October 12, 1992, Dr. Moser saw Ms. Macaulay in his private office. On October 14, 1992, she suffered seizures at home and was transported by ambulance to the hospital's emergency room. Ms. Macaulay died within an hour from a pulmonary embolism due to DVT of the lower left leg.

Ms. Macaulay's estate brought this action against the hospital and two individual doctors, alleging that defendants were negligent in failing to diagnose the pulmonary embolism which caused decedent's death. As relevant to this appeal, the hospital moved for leave to amend its answer pursuant to CPLR 3025 (b) to add Workers' Compensation Law §§ 11 and 29 (6) and to dismiss the claims against it, asserting that workers' compensation was the decedent's exclusive remedy. The IAS court granted both aspects of the hospital's motion. This was error.

Workers' Compensation Law § 29 (6) provides that "[t]he right to compensation or benefits * * * shall be the exclusive remedy to an employee * * * when such employee is injured or killed by the negligence or wrong of another in the same employ." To determine whether Workers' Compensation Law § 29 (6) bars an employee from bringing a tort claim against an employer for medical services allegedly provided by an employee doctor, the court looks to whether, "`the doctor's...