Robertson v Abraham Ostad, M.D., P.C.

[*1] Robertson v Abraham Ostad, M.D., P.C. 2005 NY Slip Op 52155(U) [10 Misc 3d 1065(A)] Decided on December 28, 2005 Civil Court Of The City Of New York, Kings County Bluth, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 28, 2005
Civil Court of the City of New York, Kings County

Trevor K. Robertson, Plaintiff,

against

Abraham Ostad, M.D., P.C. and Abraham Ostad, M.D., Defendants.



37229/05

Arlene P. Bluth, J.

Defendants herein seek to dismiss plaintiff's complaint on the ground that it sounds in medical malpractice and plaintiff has failed to serve a certificate of merit as required by CPLR § 3012-a, and for such other and further relief as this Court deems just and proper. For the following reasons, defendants' motion is granted in part and denied in part.

On October 28, 2004, plaintiff underwent a prostate biopsy at defendants' office. [*2]Following the procedure, after plaintiff had dismounted from the examination table, he blacked out and fell down as he attempted to lean down to pull up his pants. He allegedly suffered injuries as a result. The verified complaint does not specify whether plaintiff's cause of action is for medical malpractice or ordinary negligence; rather, it seeks to have it both ways, charging that defendants were negligent: "in the rendition of improper treatment and care of the plaintiff; in failing and omitting to institute proper and adequate supervision . . . ; in failing to maintain a normal or reasonable standard of care in connection with the supervision, attendance and care of [sic] treatment of the plaintiff while under their care and control; in carelessly and negligently failing and omitting to provide plaintiff with the requisite care and treatment, medical attention and appropriate supervision which, under the circumstances, was reasonable, recognized and customary; . . . in failing to have attendants, nurses or other medical aids [sic] or assistants in constant or regular attendance or supervision; in carelessly and negligently failing and omitting to reasonably foresee that the consequences of the method of care, treatment, and supervision at the facility by their personnel . . . would likely result in damage or injury to plaintiff . . . ." (Compl. ¶ 15.)

Further, in his verified bill of particulars, plaintiff alleges that "Defendants violated accepted medical practices in allowing the plaintiff to be unattended and remain unassisted, and with no support to assist him when getting off the examination table after undergoing a medical procedure, and receving medical treatment without making sure that the plaintiff was steady, alert, and able to stand on his own." (Bill of Part. ¶ 7.) Plaintiff also alleges therein that before the incident, he verbally informed Dr. Omstad that he "had previously blacked out when having received an anesthetic after a prior medical procedure." (Id. ¶ 10(a).)

In support of this motion, defendants argue that (1) the gravamen of plaintiff's complaint sounds in medical malpractice, and (2) given plaintiff's admitted failure to file and serve a certificate of merit with the complaint as required by CPLR § 3012-a, the complaint must be dismissed. As explained below, defendants are correct on the first count but incorrect on the second.

"The distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two."Weiner v Lenox Hill Hosp., 88 NY2d 784, 787, 650 NYS2d 629 [1996] (internal quotation marks and citation omitted). However, courts have repeatedly recognized that a claim sounds in medical malpractice when "the duty alleged to have been breached by the doctor arises from the physician-patient relationship and/or bears a substantial relationship to the rendition of medical treatment by a licensed physician." Rey v Park View Nursing Home, Inc., 262 AD2d 624, 627, 692 NYS2d 686 [2nd Dept 1999]; see also Smee v Sisters of Charity Hosp. of Buffalo, 210 AD2d 966, 620 NYS2d 685 [4th Dept 1994]; Rice v Vandenebossche, 185 AD2d 336, 586 NYS2d 303 [1992]; Stanley v Lebetkin, 123 AD2d 854, 507 NYS2d 468 [2nd Dept 1986]; Fox v White Plains Med. Ctr., 125 AD2d 538, 509 NYS2d 614 [2nd Dept 1986]; Lenny v Loehmann, 78 AD2d 813, 433 NYS2d 135 [1st Dept 1980]. [*3]

Analyzing factual allegations similar to those in the instant case, courts have classified the actions as sounding in medical malpractice. For example, in Lenny v Loehmann, where the plaintiff was allegedly injured when she fell out of her hospital bed because the bed's side rails were not raised, her claim against her physician was held to sound in medical malpractice rather than ordinary negligence. 78 AD2d at 814. The court reasoned that "[t]he alleged breach by defendant is a claim of a breach of his duty as a physician arising out of the physician-patient relationship, a breach of his duty as a physician to take care of his patient. In our view, this is a claim for medical malpractice. . . ." Id.

Similarly, in Fox v White Plains Medical Center, the plaintiff, who had undergone anesthesia, suffered a fall when he "arose from his hospital bed and attempted to walk unassisted to the bathroom." 125 AD2d at 538. The Court held that the "essence off the plaintiff['s] allegations here is that an improper assessment of the patient's condition and the degree of supervision required, particularly with regard to his ability to ambulate post-operatively, led to the subject injuries, the action was properly determined to sound in medical malpractice rather than ordinary negligence." Id.

The plaintiff in Stanley v Lebetkin fractured her ankle while dismounting from the examination table. 123 AD2d at 854. In holding that her action sounded in medical malpractice, the Court explained: "It was only [the physician's] awareness of [the plaintiff's] complaints, acquired in the course of [the physician-patient] relationship, when coupled with his knowledge as a physician, which would give rise to a duty to assist her on or off the table, or to keep her under constant surveillance in view of her complaints. Such acts, if negligent, constitute malpractice." Id. at 855 (internal quotation marks and citation omitted).

In the instant case, plaintiff's allegations "bear[] a substantial relationship to the rendition of medical treatment by a licensed physician." Rey, 262 AD2d at 627. His alleged injuries arise out of the physician's and medical facility's breach of duty toward plaintiff. Like the plaintiff in Fox, the "essence off the plaintiff['s] allegations here is that an improper assessment of [his] condition and the degree of supervision required, particularly with regard to his ability to ambulate post-operatively, led to the subject injuries." Fox, 125 AD2d at 538. Plaintiff alleges that he informed Dr. Ostad of his history of blacking out. That information, "when coupled with his knowledge as a physician . . . would give rise to a duty to assist [plaintiff], or to keep her under constant surveillance in view of [his] complaints." Stanley, 123 AD2d at 854. That the alleged breach took place after plaintiff's biopsy procedure was concluded does not take the action out of the ambit of medical malpractice. "[T]he duty owed to the plaintiff in the aftermath of medical treatment derive[s] from the same duty owed as a result of the doctor-patient relationship." Lippert v Yambo, 267 AD2d 433, 433, 700 NYS2d 848 [2nd Dept 1999]. Thus, despite plaintiff's protestations to the contrary, it is clear that his action sounds not in ordinary negligence, but in medical malpractice.[FN1] [*4]

Defendants are incorrect, however, in their contention that plaintiff's failure to serve and file a certificate of merit, as required in medical malpractice cases, warrants dismissal of the action. See CPLR § 3012-a (requiring the attorney for the plaintiff in a medical malpractice action to accompany the complaint with a certificate attesting that the attorney has consulted with at least one licensed physician knowledgeable in the field, and has concluded based on that consultation that the case has merit). In support of their argument, defendants cite Santangelo v Raskin, 137 AD2d 74, 528 NYS2d 90 [2nd Dept 1988]. In that case, the Second Department dismissed an action for the attorney's failure to execute a certificate of merit (and failure to proffer a legitimate excuse for his default and demonstrate a meritorious cause of action). Santangelo, however, has since been overruled a fact unnoticed not only by defendants but even by plaintiff in opposing the instant motion.

In Kolb v Strogh, 158 AD2d 15, 558 NYS2d 549 [2nd Dept 1990], the Second Department held that dismissal is not an appropriate sanction for failure to comply with CPLR § 3012-a. The Court noted that Section 3012-a does not expressly authorize dismissal for violation thereof, and that the Court of Appeals had recently held that "the courts of this State are empowered to grant the sanction of dismissal only when it has been authorized either by the Legislature or by court rules consistent with existing legislation." Kolb, 158 AD2d at 20 (quoting Tewari v Tsoutsouras, 75 NY2d 1, 7, 550 NYS2d 572 [1989]). Since dismissal was not an option for failure to comply with Section 3012-a, the Second Department held that the appropriate method to enforce the requirement of CPLR Section 3012-a is for a court to first order the defaulting plaintiff to comply. "If a dilatory plaintiff is so neglectful as to disobey such an order, then sanctions, including the sanction of dismissal, may be imposed." Kolb, 158 AD2d at 22 (noting that dismissal at that point would be appropriate under CPLR § 3126, governing failure to comply with discovery orders).

Based on the foregoing, defendants' motion is granted solely to the extent that plaintiff is directed to serve and file a certificate of merit within 60 days after serving or being served with a copy of this order with notice of entry. If plaintiff fails to do so, defendants may move for dismissal. In addition, because the CPLR forbids a demand for specific damages in a medical malpractice action, the ad damnum clause in plaintiff's complaint is hereby stricken. See CPLR § 3017(c); Rice, 185 AD2d at 338; Fox, 125 AD2d at 539.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH [*5]

Judge, Civil Court

ASN by__________ on __________ Footnotes

Footnote 1: The Court notes without linking the plaintiff's "blacking out" to the medical nature of plaintiff's visit to defendant, plaintiff would not have had a credible negligence claim. Indeed, without a medical link, defendant would no more be liable in negligence for plaintiff's blackout in the examining room than would a department store be liable for a customer's blackout in a fitting room.