favorable to the plaintiff, a reasonable jury could find from the nature of the relationship between Dr. Indelicato and Dr. Parks, and the frequency and duration of their communications, that Dr. Indelicato's instructions concerning the plaintiff transcended mere advice, and in fact reached the level of actual direction. Accordingly, a reasonable jury could find that the factual underpinnings to a physician-patient relationship existed between Dr. Indelicato and Ms. Gilinsky, thereby supporting a medical malpractice action. For this reason, the defendant's motion for summary judgment is denied.
II. Ordinary Negligence Claim
The parties also dispute whether the plaintiff states a claim of ordinary negligence against the defendant resulting from Dr. Indelicato's voluntary assumption of a duty.
"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." Miller v. Albany Medical Center Hosp., 95 A.D.2d 977, 464 N.Y.S.2d 297, 298-99 (App. Div. 3d Dep't 1983) (citations omitted). In addition, "when a risk of harm has been identified through the exercise of medical judgment, a failure to follow through by taking measures to prevent the harm may constitute actionable ordinary negligence." Id. at 299 (citations omitted); see Papa v. Brunswick Gen. Hosp., 132 A.D.2d 601, 517 N.Y.S.2d 762, 763-64 (App. Div. 2d Dep't 1987). Thus, the plaintiff's claim may be analyzed under principles of ordinary negligence if the jury is able to evaluate the reasonableness of Dr. Indelicato's conduct on the basis of their common, everyday experiences. See, e.g., Smith v. Pasquarella, 201 A.D.2d 782, 607 N.Y.S.2d 489, 490-91 (App. Div. 3d Dep't 1994) (Where a physician examined a plaintiff on behalf of an insurance carrier and the plaintiff thereafter claimed that the physician acted in a negligent manner and aggravated an existing injury, the plaintiff alleged negligence, rather than medical malpractice, where she alleged that the defendant physician removed her crutches from her reach so that she had to hop across the floor to retrieve them.); McKinney v. Bellevue Hosp., 183 A.D.2d 563, 584 N.Y.S.2d 538, 540 (App. Div. 1st Dep't 1992) ("The failure to inform an employee or prospective employee that his pre-employment physical has detected a serious medical condition is an act of ordinary negligence within the experience of a trier of fact."). Unlike a medical malpractice claim, the theory of simple negligence does not require the existence of a physician-patient relationship. See McKinney, 584 N.Y.S.2d at 539; Borrillo v. Beekman Downtown Hosp., 146 A.D.2d 734, 537 N.Y.S.2d 219, 220 (App. Div. 2d Dep't 1989).
In the instant case, the plaintiff has introduced evidence to show that, during a five-hour period on September 24, 1990, Dr. Parks and the defendant, Dr. Indelicato, spoke on seven different occasions concerning the physical symptoms of a specific patient, who ostensibly was in need of emergent medical treatment. For the reasons previously stated in this Memorandum and Order, viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could find that Dr. Indelicato's comments crossed the boundary that divides mere advice from actual direction. By so doing, or otherwise stated, by attempting to "rescue" the plaintiff, Dr. Indelicato acted in a manner that subjected the plaintiff to a foreseeable risk of harm. Even without the aid of expert testimony, a reasonable jury, drawing upon their common, everyday experiences, could conclude that the defendant, by attempting to diagnose and direct the treatment of the plaintiff over the telephone, failed to act as a reasonably prudent person under like circumstances, and that such conduct was a substantial contributing factor in bringing about the plaintiff's injuries. Accordingly, the defendant's motion for summary judgment is denied on this ground as well.
For the foregoing reasons, the defendant's motion for summary judgment is DENIED in its entirety.
The parties are directed to file their joint pretrial order by September 22, 1995.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
July 28, 1995