Kulak v Phillips Ambulatory Care Ctr.
Annotate this CaseDecided on November 10, 2008
Civil Court of the City of, New York County
Lawrence Kulak, Plaintiff,
against
Phillips Ambulatory Care Center a/k/a BETH ISRAEL HOSPITAL CENTER, INC. and JUDITH HERTANU, M.D., Defendants.
72543 CVN 2006
The plaintiff is self-represented.
The appearance of defendants' counsel is:
Rita S. Menchel, Esquire
Wenick & Finger, P.C.
28 East 28th St, 13th Fl
New York NY 10016-7900
(646) 837-7900
Anil C. Singh, J.
The issue before the court is whether plaintiff's cause of action sounds in medical
malpractice or negligence, for purposes of determining the applicable statute of limitations. Defendants
move for summary judgment dismissing the complaint pursuant to CPLR 3211(a) and 3212, contending
that the two-and-a-half year statute of limitations for medical malpractice applies and that this action
was not timely commenced. Plaintiff, who is self-represented, opposes the motion, contending that the
three-year statute of limitations for negligence applies. In addition, plaintiff cross-moves for leave to file
an amended complaint.
The endorsed complaint alleges that plaintiff went to defendant Beth Israel Hospital on December 2, 2003, to have his left knee treated, examined and x-rayed.
Plaintiff returned to the hospital on December 9, 2003, to receive the results of the x-rays. According to the complaint, defendant Dr. Judith Hertanu examined plaintiff on that date. Defendant allegedly injured plaintiff's right knee during the examination.
Plaintiff commenced this action by filing a summons and verified complaint on December 7, 2006, alleging the defendant Hertanu was negligent and reckless and that defendant hospital failed to provide adequate supervision. Defendants filed verified answers, alleging the [*2]affirmative defense that plaintiff's action was barred by the statute of limitations.
Defendants assert that plaintiff's complaint as well as the medical records documenting plaintiff's visit to the hospital provide prima facie evidence that this action sounds in medical malpractice and is therefore barred by the two-and-a-half year statute of limitations pursuant to CPLR 214-a. The complaint states specifically that "plaintiff was examined" by Dr. Hertanu. Furthermore, defendants exhibit the office visit note by Dr. Hertanu (Reply Aff., Exhibit B). They contend that the note documents a medical history, results of a physical examination, and instructions as to appropriate physical therapy for treating plaintiff's injury.
According to defendants, the note documents that Dr. Hertanu in her capacity as a physician advised and instructed plaintiff how to perform appropriate exercises to treat his injury. Accordingly, defendants contend that a physical examination, discussion, and treatment instructions took place establishing a patient-physician relationship, and plaintiff's complaint cannot be characterized as any claim except medical malpractice. Defendants contend further that a physician-patient relationship existed during Dr. Hertanu's medical examination of the plaintiff; the incident complained of arose from the physician-patient relationship; and the examination was substantially related to medical treatment. Defendants assert that this is, therefore, a medical malpractice action that should have been commenced no later than June 9, 2006, pursuant to CPLR 214-a.
In opposition, plaintiff contends that his causes of action are timely asserted pursuant to CPLR 214(5), the three-year limitations period applicable to actions to recover damages for personal injuries, as the causes of action sound in negligence. Plaintiff states in a sworn affidavit that when he visited the clinic for the first time on December 2, 2003, he was examined by an orthopedist by the name of Dr. Lee. He alleges further that Dr. Lee was not present when he returned on December 9, 2003, so he was seen by Dr. Hertanu instead.
According to plaintiff, he told Dr. Hertanu that he had come to the clinic simply to receive the results of his x-rays from the previous visit. Mr. Kulak asserts that Dr. Hertanu did not conduct any physical examination on him, nor did she examine his injured left knee. When the defendant attempted to examine him, he promptly declined. He states further that defendant asked him to lie down on the examination table so she could show him some exercises to do for his knee, "to which I consented."
Plaintiff states that while he was lying on the examination table, defendant attempted to show him
how to do leg raises, which he indicated to her was unnecessary because he knew how to do them.
Plaintiff contends that when he attempted to raise his body up and get off the examination table, Dr.
Hertanu prevented him from doing so, placing one of her hands below his right knee and her other hand
above the knee, effectively "locking into place" and preventing him from getting off the table. Mr. Kuluk
contends further that as he attempted to get up with Dr. Hertanu holding his leg in place, the defendant
then began to exert pressure above his right knee, effectively straining his right quad muscle.
Discussion
"It is well settled that the essence of a medical malpractice action is the existence of the duty which arises from the physician-patient relationship" (Bazakos v. Lewis, 864 NYS2d 505 [2d Dep't 2008]). "Conduct may be deemed malpractice, rather than negligence, when it [*3] constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'" (Scott v. Uljanov, 74 NY2d 673, 674 [1989]). "When the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence" (Morales v. Carcione, 48 AD3d 648, 649 [2d Dep't 2008]). "[T]he threshold determination of whether a physician-patient relationship exists is based upon the expectations of the parties during the course of the encounter" (Bazakos, supra .).
In the instance action, it is undisputed that plaintiff came to defendant hospital seeking treatment for a knee injury. It is also undisputed that plaintiff returned to the hospital to get the results of the x-rays of his knee. Furthermore, plaintiff was allegedly injured by defendant while plaintiff was lying on an examination table and the doctor was showing him how to exercise his knees.
In light of these facts, the court finds that defendants' conduct constituted medical treatment or bore a substantial relationship to the rendition of treatment. Accordingly, defendants have made out a prima facie case for summary judgment in their favor that has not been rebutted by the plaintiff.
For the above reasons, defendants' motion for summary judgment is hereby granted. The cross-motion for leave to file an amended complaint is, therefore, denied as moot.
The foregoing constitutes the decision and order of the court.
Date:November 10, 2008______________________________
New York, New YorkAnil C. Singh
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