James Zajac v Dr. E. Robert Wilson

Zajac v Wilson 2003 NY Slip Op 20199 [2 AD3d 1410] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

James Zajac et al., Appellants,
v
E. Robert Wilson et al., Respondents.

—

Appeal from those parts of an order of Supreme Court, Monroe County (Frazee, J.), entered November 7, 2002, that, upon reargument, granted those parts of defendants' motion seeking summary judgment dismissing the negligence cause of action and part of the medical malpractice cause of action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action to recover damages for injuries allegedly sustained by James Zajac (plaintiff) as a result of the alleged medical malpractice and negligence of Dr. E. Robert Wilson (defendant) in conducting independent medical examinations (IMEs). Those IMEs were conducted on behalf of the workers' compensation insurance carriers that provided coverage to plaintiff's employer for plaintiff's job-related back injuries. Supreme Court properly granted those parts of defendants' motion seeking summary judgment dismissing the negligence cause of action and that part of the medical malpractice cause of action arising from defendant's alleged misdiagnosis of plaintiff's back injury and failure to authorize necessary surgery for that injury. In these circumstances, defendants are not liable to plaintiffs in negligence or malpractice for the alleged misdiagnosis of plaintiff's injury or the failure to report a proper diagnosis to the insurance carriers (see Violandi v City of New York, 184 AD2d 364, 365 [1992]; LoDico v Caputi, 129 AD2d 361, 364 [1987], lv denied 71 NY2d 804 [1988]). Present—Pigott, Jr., P.J., Green, Pine, Hurlbutt and Kehoe, JJ.