Albany New York Defense Law Firm: O'Connor, O'Connor, Bresee & First, P.C.

Workers’ Compensation Law Sections 11 and 29(6) assert that an employee who is entitled to receive worker’s compensation benefits may not sue his or her employer in an action at law for the injuries sustained.  Thus, an injured person who is entitled to receive worker’s compensation benefits from his general employer is barred from bringing a personal injury action against his special employer.

In the instructive case of Soto v. Akam Associates, Inc., 61 A.D.3d 665 (2d Dept. 2009), the court denied defendant’s motion for summary judgment, because the defendant failed to adequately show the existence of a special employment relationship.  The court looked at certain relevant factors in determining whether a special relationship exists, stating that the key inquiry is “who controls and directs the manner, details and ultimate results of the employee’s work.�  The court also discussed other relevant factors, including, who is responsible for the payment of wages, who furnishes the worker’s equipment, who had the right to hire and discharge the worker, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business. 

This factor based determination often creates a question of fact for the jury, and as seen in Soto, an employer’s submission of facts relevant to the determination will often fail to satisfy a defendant’s entitlement to judgment as a matter of law. 

 

 

In a 4-3 vote with a vigorous dissent lead by Chief Judge Lippman, the Court of Appeals held that claims arising from injuries caused during the course of an “independent medical exam� performed pursuant to CPLR 3121 are subject to the shorter 2 ½-year medical malpractice statute of limitations rather than the three-year period for negligently inflicted harm.  Bazakos v. Lewis, et al., 12 N.Y.3d 631 (2009)

Plaintiff was originally injured in an automobile accident and brought suit.  He was required to undergo a routine “independent medical exam� by defendant doctor on November 27, 2001.  Approximately two years and eleven months later, plaintiff sued the doctor claiming that he was injured because the doctor failed to perform competently a procedure requiring the doctor’s specialized skill.  Defendants moved to dismiss the case as untimely and the Supreme Court granted the motion.  On appeal, the Second Department reversed, concluding that because the doctor was performing a designated medical exam and plaintiff did not have a physician-patient relationship with him, this was not a claim for medical malpractice and was, therefore, governed by the three-year statute.  The Court of Appeals reversed, characterizing the relationship as a “limited physician-patient relationship� and subject to the 2 ½-year statute of limitations period for medical malpractice actions.

Chief Judge Lippman, in a strong dissent joined by Justices Pigott and Jones, accused the majority of gerrymandering the legal principles in order to effect a particular result.  The Chief Judge stated that one cannot have a claim for medical malpractice absent conduct which constitutes medical treatment.  He noted that the exam here was conducted simply as a disclosure in litigation and the examination in no way constituted any sort of medical treatment. 

The case of Kwiecinski v. Chung Hwang et al., 2009 WL 3029645 (3d Dept. Sept. 24, 2009), should serve as a cautionary reminder to litigants to take care in the preparation of their pleadings.  The Appellate Division, Third Department, determined that defendants’ purportedly inadvertent admission in their original answer survived the amended answer, and that the admission did not lose its effect as an admission of fact.

            In Kwiecinski, the plaintiff brought a medical malpractice action against the defendants alleging, among other things, that she was negligently given the wrong drug in preparation for surgery.   Specifically, paragraph 23 of the plaintiff’s complaint stated that she “was supposed to receive Versed prior to the surgery. Instead, due to negligence, gross negligence and recklessness of defendant[s], plaintiff was given a paralytic agent. She was not given Versed. She was given a drug consisting of 40 percent paralytic compound, intended for use when a patient is hooked up to a respirator.â€� In their answer, defendants alleged that “as to the allegations as contained in paragraph numbered ‘23′ of the … [c]omplaint, admit the first two sentences and deny knowledge or information sufficient to form a belief as to the remaining allegations.â€� Defendants thereafter moved for permission to amend their answer, claiming that the admission of the facts contained in the first two sentences of paragraph 23 of plaintiff’s complaint was inadvertent, and for an order precluding plaintiff from using the original admission in further proceedings in this action. Supreme Court granted the motion to amend the answer and ordered that plaintiff or any other party may not use the admission in the original answer at any stage of the litigation.

            In reversing the lower court’s decision, the Appellate Division stated that “[a]n admission of fact in an original pleading does not lose its effect as an admission of fact because the pleading has been superceded as such by an amended pleading.�  The Court concluded that the admission in the original pleading was still evidence of the facts admitted and that plaintiff was not precluded from using the admissions in defendants’ original answer during trial. 

In a recent decision by the Appellate Division, the Court granted a defendant doctor’s motion for summary judgment dismissing plaintiff’s complaint as time-barred.  Capece v. Nash, 2009 WL 3136651 (2d Dept. Sept. 29, 2009).  The Court stated that plaintiff failed to raise a triable issue of fact as to the continuous treatment doctrine, where decedent failed to return for a follow up appointment, was treated by other doctors in the interim, only to be referred back to her original treating physician one year later.  A comparison of this case, with a similar case decided only seven months earlier by the same court reaching a different conclusion, however, shows the inconsistencies and difficulties in determining the applicability of this doctrine.  See Gomez v. Katz, 61 A.D.3d 108 (2d Dept. Feb. 10, 2009).

The Capece plaintiff commenced this action on November 20, 2003, alleging that the defendant doctor was negligent in his treatment of the decedent from November 1999 through May 24, 2001.  The decedent consulted with the doctor in connection with a condition in her right lung that had been disclosed in a recent screen, and treated with the doctor related to this condition from November 1999 through July 7, 2000.  The treatment included a needle biopsy in December 1999 that was negative, and a follow-up CT scan which was conducted on June 1, 2000.  The doctor recommended to the decedent to return for a follow-up scan in six months, and decedent failed to do so. 

There was a one-year hiatus during which time decedent did not treat with the doctor.  In the interim, decedent received medical treatment from other doctors, only to be referred back to the original doctor for treatment related to the same condition in decedent’s right lung.  The doctor then saw decedent on May 24, 2001, at which point a diagnosis of cancer was made.

The two years and six month statute of limitations for medical malpractice will be tolled “where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.�  CPLR 214-a.  The underlying premise of the continuous treatment doctrine is that the doctor-patient relationship is marked by continuing trust and confidence and requires (1) an actual course of treatment; (2) treatment of the same conditions or complaints underlying the plaintiff’s medical malpractice claim; and (3) that the physician’s treatment be deemed “continuous.�  See Gomez, 61 A.D.3d at 111-112.  Using these guidelines, the court granted defendant doctor’s motion.

Under similar facts as Capece v. Nash, the Appellate Division in Gomez v. Katz denied the defendant doctor’s motion for summary judgment.   The Gomez plaintiff presented to the defendant doctor for LASIK eye surgery and follow-up care associated with that surgery.   Plaintiff thereafter sought treatment associated with complications related to the surgery from other medical providers.  Plaintiff did not again return to the original doctor for another two years.  Defendant doctor argued that the intervening treatment by a different doctor and the 24 month gap in treatment demonstrate that plaintiff had no ongoing physician-patient relationship with the doctor, and preclude application of the continuous treatment doctrine.  The court disagreed stating that an issue of fact existed as to whether these intervening acts severed continuous treatment and denied the doctors summary judgment motion.  

A comparison of these cases evidences the amorphousness of the continuous treatment doctrine and the fact specific inquiries courts must consider in determining its applicability.    As the Gomez court correctly characterized, “decisional authorities do not draw a bright line between treatment that is …‘continuous,’ and treatment that is too chronologically remote to constitute a continuation of earlier treatment.�  Gomez, 61 A.D.3d at 117.

In a surprise victory, the Court of Appeals assessed the constitutionality of whether the Governor of the State of New York has the authority to fill a vacancy in the office of the Lieutenant-Governor by appointment.  In Skelos v. Paterson, Slip Op. 06585 (Sept. 22, 2009), the Court ruled that Governor David Paterson has the authority to appoint a lieutenant governor, consistent with the power to fill vacancies in office pursuant to New York Public Officer’s Law Section 43 and in accordance with the State’s constitution. 

On March 17, 2008, David Paterson became Governor after Eliot Spitzer’s resignation, leaving a vacancy in the lieutenant-governor’s position.  Fifteen months later, Republicans and Democrats split 31-31 in the Senate.  This created a month long impasse that delayed the passage of key bills, prompting Governor Paterson’s decision to appoint Richard Ravitch as Lieutenant-Governor.  State Senator Dean G. Skelos commenced this action seeking a declaratory judgment that the Governor’s appointment was unconstitutional.         

In a 4-3 decision, reversing the lower courts, Chief Judge Jonathan Lippman held that Governor Paterson’s appointment was constitutional.  The Chief Judge discussed that the intent of Article XIII, Section 3 of the State Constitution is to assure that appointments to elective offices extend no longer than is reasonably necessary to fill such offices.   Any other conclusion would run counter to legislative intent and would result in an extended vacancy running the balance of an elective term. 

At the start of the year, the Court of Appeals was faced with an issue that raised important policy considerations affecting an insured’s right to settle.  The Court was faced with determining whether the insured and the tortfeasor in an action can agree to a settlement that extinguishes the insurer’s subrogation rights.  In Fasso v. Doerr, 12 N.Y.3d 80 (Feb. 24, 2009), the Court concluded that the subrogation claim cannot be discontinued without the insurer’s consent.

          The lower court permitted the Fasso plaintiff’s health insurer to intervene in the underlying medical malpractice action.  During trial, plaintiff and defendant reached agreement on a settlement, to satisfy both plaintiff’s claim and the subrogation claim.  The insurer objected because it had not agreed to waive its subrogation claim.  The Trial Court, and as affirmed on appeal, held that the insurer had no right to control the settlement of the injured plaintiff’s action.  See Fasso v. Doerr, 46 A.D.3d 1358 (4th Dept. 2007).

            The Court of Appeals reversed, holding that the plaintiff and defendant could not, between them, compromise the insurer’s subrogation claim.  However, the Court cautioned that the participation by insurers in settlement negotiations creates conflicts of interest with plaintiffs, who may wish to accept settlements that do not allocate sufficient monies to cover all or part of the medical expenses, and discourages or prevents settlements since insurers will be inclined to object to anything less than full recovery of their expenditures.

            The Court pointedly added that the right of the insurer to intervene, pursuant to CLPR 1013, deserves legislative consideration due to the resulting competing policy concerns.