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Bazakos v. Lewis

June 24, 2009

LEWIS J. BAZAKOS, RESPONDENT,
v.
PHILIP LEWIS, APPELLANT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Smith, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

We hold that a claim against a doctor for his alleged negligence in performing an independent medical examination (IME) is a claim for malpractice, governed by CPLR 214-a's 2 year, 6 month statute of limitations.

I.

Lewis Bazakos, plaintiff in this case, was also the plaintiff in a previously-brought action arising out of an automobile accident. In that action, Bazakos was required, pursuant to CPLR 3121, to undergo an examination, commonly called an IME, by a doctor designated by the adverse party. The person Bazakos sued designated Dr. Philip Lewis, and Lewis examined Bazakos on November 27, 2001.

On October 15, 2004, approximately 2 years 11 months later, Bazakos commenced this action against Lewis. The complaint alleges that Lewis injured Bazakos during the IME when he "took plaintiff's head in his hands and forcefully rotated it while simultaneously pulling."

Lewis moved to dismiss the case as barred by the statute of limitations. Supreme Court granted the motion, relying on the Appellate Division, Second Department's decision in Evangelista v Zolan (247 AD2d 508 [2d Dept 1998]). On Bazakos's appeal, the Appellate Division, with two Justices dissenting, overruled Evangelista and reversed Supreme Court, holding the action to be timely (Bazakos v Lewis, 56 AD3d 15 [2d Dept 2008]). The Appellate Division majority concluded that, because the doctor performing an IME and the person undergoing it do not have a physician-patient relationship, the action was not "for medical ... malpractice" (CPLR 214-a) and was therefore governed by the three year statute applicable to personal injury actions generally (CPLR 214 [5]). The dissenting Justices, relying on Evangelista and Twitchell v MacKay (78 AD2d 125 [4th Dept 1980]), argued that a "limited" physician-patient relationship exists between the examining doctor at an IME and the person examined, and that the action should therefore be considered one for malpractice (56 AD3d at 24).

The Appellate Division granted Lewis leave to appeal, certifying the question of whether its order was properly made. We answer the question in the negative and reverse.

II.

Bazakos's argument, which the Appellate Division accepted, is a simple one: He says that medical malpractice is a breach of a doctor's duty to provide his or her patient with medical care meeting a certain standard; that Lewis was not Bazakos's doctor, and Bazakos was not Lewis's patient; and that therefore the negligence of which Lewis is accused cannot be medical malpractice. He points out that the relationship between the doctor and the person the doctor examines at an IME is essentially adversarial; the person examined is required by law to submit to a procedure performed for the benefit of a party seeking to defeat that person's legal claim. The Appellate Division majority quoted the observation in Payette v Rockefeller Univ. (220 AD2d 69, 72 [1st Dept 1996]) that "the existence of a physician-patient relationship" is "essential to a cause of action in malpractice."

There is some logic to Bazakos's position, but the result he seeks would be an arbitrary one. Bazakos, like any medical malpractice plaintiff, claims he was injured because a doctor failed to perform competently a procedure requiring the doctor's specialized skill; Lewis, like any medical malpractice defendant, is called upon to defend his performance of professional duties. This case is not like Payette, in which a volunteer participant in a diet study at Rockefeller University complained of the University's "alleged negligent creation and implementation of its diet research program" (220 AD2d at 72). The act on which Bazakos's lawsuit is based --Lewis's manipulation of a body part of a person who came to his office for a physical examination -- constitutes "medical treatment by a licensed physician," and the negligent performance of that act is not ordinary negligence, but a prototypical act of medical malpractice (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). We see no good reason why the statute of limitations should be longer than it would be if Lewis were accused of making exactly the same error on a patient who came to him for consultation or care.

CPLR 214-a, creating a statute of limitations for certain forms of professional malpractice that is six months shorter than the ordinary personal injury statute, was part of a package of legislation passed in 1975 in response "to a crisis in the medical profession posed by the withdrawal and threatened withdrawal of insurance companies from the malpractice insurance market" (Bleiler, 65 NY2d at 68). The purpose of the legislative package was to enable "health care providers to get malpractice insurance at reasonable rates" (id., quoting Mem of State Executive Department, 1975 McKinney's Session Laws of NY at 1601-1602). It is unlikely, in our judgment, that the Legislature would have found less reason to make insurance available to doctors performing IMEs than to those practicing medicine in more traditional contexts, or that it intended any distinction between the two.

We agree with the dissenting Justices at the Appellate Division that the relationship between a doctor performing an IME and the person he is examining may fairly be called a "limited physician-patient relationship" -- indeed, this language is used in an American Medical Association opinion describing the ethical responsibilities of a doctor performing an IME (Council on Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics: Current Opinions, Opinion 10.03). As the Michigan Supreme Court has explained, this relationship:

"is not the traditional one. It is a limited relationship. It does not involve the full panoply of the physician's typical responsibilities to diagnose and treat the examinee for medical conditions. The IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports. The limited relationship that we recognize imposes a duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee." (Dyer v Trachtman, 470 Mich 45, 49-50, 679 NW2d 311, 314-315, [2004].)

Bazakos's claim here is that Lewis breached his duty "to perform the examination in a manner not to cause physical harm to the examinee." That is a claim for medical malpractice, and it is governed by the 2 year, 6 month statute ...


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