Smith v. Pasquarella

• Decision Date: 03 February 1994
• Citation: Smith v. Pasquarella, 201 A.D.2d 782, 607 N.Y.S.2d 489 (N.Y. App. Div. 1994)
• Parties: Karen L. SMITH, Respondent, v. Edward J. PASQUARELLA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 489

607 N.Y.S.2d 489

201 A.D.2d 782

Karen L. SMITH, Respondent, v.Edward J. PASQUARELLA, Appellant.

Supreme Court, Appellate Division Third Department.

Feb. 3, 1994.

Carter, Conboy, Bardwell, Case, Blackmore & Napierski(Nancy E. May-Skinner, of counsel), Albany, for appellant.

Grasso, Rodriguez, Putorti, Grasso & Zyra(Lawrence J. Zyra, of counsel), Schenectady, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and WEISS, JJ.

CASEY, Justice.

Appeal from an order of the Supreme Court(Lynch, J.), entered May 12, 1993 in Schenectady County, which, inter alia, denied defendant's cross motion to dismiss the complaint.

At issue on this appeal is whether the first cause of action in plaintiff's complaint is based upon medical malpractice or negligence.Defendant contends that the cause of action sounds in medical malpractice and, therefore, plaintiff was required to comply with the pleading requirements for medical malpractice actions (see, CPLR 3012-a, 3017[c];3406[a].Supreme Court held that plaintiff had pleaded a negligence cause of action.We agree that some of defendant's conduct alleged by plaintiff constitutes negligence.

The gist of plaintiff's first cause of action is that defendant, a physician, injured plaintiff, both physically and emotionally, and aggravated an existing injury during the course of a physical examination conducted by defendant.Plaintiff neither requested the examination nor sought any diagnosis and treatment from defendant.Plaintiff submitted to the examination pursuant to the demand of her no-fault insurance carrier and defendant was retained by the insurance carrier.Defendant neither offered nor intended to treat, care for or otherwise benefit plaintiff.

Although defendant's examination was not paid for by plaintiff and was not conducted during the course of treatment or with the intention of future treatment, defendant nevertheless owed a duty of reasonable care to plaintiff(see, Roth v. Tuckman, 162 A.D.2d 941, 942, 558 N.Y.S.2d 264, lv. denied76 N.Y.2d 712, 563 N.Y.S.2d 768, 565 N.E.2d 517), although the scope of that duty is limited (see, Murphy v. Blum, 160 A.D.2d 914, 915, 554 N.Y.S.2d 640;Lo Dico v. Caputi, 129 A.D.2d 361, 364, 517 N.Y.S.2d 640, lv. denied71 N.Y.2d 804, 528 N.Y.S.2d 829, 524 N.E.2d 149).Plaintiff alleges that defendant breached the duty of reasonable care during the examination, resulting in physical and emotional injuries to plaintiff.Medical malpractice being merely a form of negligence, the Court of Appeals has held that "[c]onduct may be deemed malpractice, rather than negligence, when it 'constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician' "(Scott v. Uljanov, 74 N.Y.2d 673, 674-675, 543 N.Y.S.2d 369, 541 N.E.2d 398, quotingBleiler v. Bodnar, 65 N.Y.2d 65, 72, 489 N.Y.S.2d 885, 479 N.E.2d 230).Literal application of this principle would lead to the conclusion that defendant cannot be guilty of malpractice because defendant neither treated nor intended to treat plaintiff.We conclude, however, that because defendant utilized the same professional skills in examining plaintiff at the insurance carrier's request as he would have in examining plaintiff for treatment purposes, there is a sufficient nexus to medical treatment to require a further inquiry to determine whether plaintiff's cause of action sounds in malpractice or negligence (see, Twitchell v. MacKay, 78 A.D.2d 125, 434 N.Y.S.2d 516).As we said in Miller v. Albany Med. Center Hosp., 95 A.D.2d 977, 978, 464 N.Y.S.2d 297:

The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts * * * (citations omitted).

Based on our review of plaintiff's bill of particulars, we conclude that some of defendant's...