Verdicts

Almost No Information in Complaint, But It's Enough

The U.S. District Court for the Western District of Michigan found that a plaintiff's complaint was sufficiently pleaded under the liberal notice-pleading requirements of the Federal Rules of Civil Procedure to survive dismissal under Rule 12(b)(6), even though it cited only the defendants' “negligence” as causing the decedent nursing home resident's death, with no other elaboration. Bilecki v. Mather Investors LLC, Slip Copy, 2008 WL 4376372 (W.D.Mich.).

The personal representative of the estate of Dorothy Solka filed a complaint in January 2008 alleging that negligence on the part of the Mather Nursing Center (Mather) and its agents and employees caused her death. Mather moved to dismiss the complaint for failure to state a claim upon which relief could be granted (Fed.R.Civ.P. 12(b)(6)).

The court noted that the Federal Rules of Civil Procedure provide for a liberal system of notice pleading, in accordance with which a plaintiff need only provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory. Commercial Money Ctr. Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir.2007).

The defendants asserted that the complaint appeared “to sound in some form of medical malpractice as, other than the statement of diversity, there is no other statutory authority stated in the Complaint for bringing this cause of action.” The court responded by noting that a federal complaint is not required to set forth the legal theory that it relies upon. In addition, the complaint itself stated that the basis upon which relief was being sought was the “ordinary negligence of the defendant's agents and employees.” As such, it met the requirements of the federal notice-pleading scheme and dismissal in accordance with Rule 12(b)(6) was not warranted.

Examination Performed for Tort Action Gives Rise to Negligence Suit

Because the defendant physician injured the plaintiff while conducting an examination in the context of a personal injury action on behalf of an alleged tortfeasor, the examinee's cause of action against the physician should be characterized as one for negligence, rather than for medical malpractice. Bazakos v. Lewis, — N.Y.S.2d —-, 2008 WL 4356120 (N.Y.A.D. 2 Dept. 9/23/08).

The plaintiff's car was allegedly rear-ended by another car. The plaintiff, Lewis J. Bazokos, brought suit against that car's driver to recover for his injuries. In conjunction with that suit, Bazakos was required to appear for examination at the offices of defendant Philip Lewis, an orthopedic surgeon. There, the doctor allegedly manipulated the plaintiff in such a way as to injure him.

Approximately two years and 11 months after that medical examination took place, Bazakos commenced this action against Dr. Lewis, alleging that Lewis “committed negligence toward” him during the medical examination. Dr. Lewis moved to dismiss, asserting that the suit was time-barred because, although it was asserted as one for negligence (with a three-year statute of limitations), the suit actually sounded in medical malpractice (with a two-and-a-half-year statute of limitations). Bazakos countered that, as there was no physician-patient relationship between himself and Dr. Lewis, his claim sounded in negligence, not medical malpractice.

The trial court agreed with Dr. Lewis and, therefore, granted Lewis's motion to dismiss. The appellate court reversed, noting that well-settled New York law holds that the essence of a medical malpractice action is the existence of the duty that arises from the physician-patient relationship (see Caso v. St. Francis Hosp., 34 AD3d 714; Mendelson v. Clarkstown Med. Assoc., 271 AD2d 584). Said the court, “It is beyond cavil that a statutory medical examination is an adversarial process. The examinee's attendance is compelled by rule of law (see 22 [New York Codes, Rule and Regulations] NYCRR 202.17), and his or her engagement and interaction with the examining physician is nonconsensual. Indeed, because of the inherently adversarial nature of these types of examinations, this Court long ago recognized the examinee's right to be examined in the presence of his or her attorney (see Ponce v. Health Ins. Plan of Greater N.Y., 100 AD2d 963). In stark contrast, the physician-patient relationship is characterized by the confidentiality and trust necessary to facilitate the securing of adequate diagnosis and treatment ' Critical to a finding of a physician-patient relationship is the consensual nature essential to the formation of the relationship.”

Here, Bazakos did not expect, seek, or receive medical treatment or diagnosis from Dr. Lewis. There was no “patient” in this scenario, only an “examinee” compelled to participate because of the rules pertaining to pretrial discovery and disclosure in personal injury actions. Because of this, the court found that the examining physician's duty not to injure the examinee during the evaluation brought up questions to be settled within a simple negligence cause of action rather than in one for medical malpractice.

Physician/Father Not Proper Co-Defendant

A New York court refused to permit a jury to consider whether a father's care of his son, (when the father was also a physician) could render him partially legally responsible for harm to the plaintiff due to medical malpractice. Antaki v. Lerman, 006628/06 (Sup. Ct., Nassau Co. 9/22/08).

The plaintiff was ill and saw a doctor at defendant North Shore University Hospital Plainview. After he went home he continued to have problems, including diarrhea. Plaintiff's father, August Antaki, M.D., was a retired or semi-retired pathologist. When his son's medical condition began to deteriorate, Dr. Antaki spoke over the phone with plaintiff's doctor, who suggested that Dr. Antaki listen for bowel sounds. Dr. Antaki did so, and reported to plaintiff's doctor that plaintiff was slightly distended, but did have bowel sounds. Shortly thereafter, when plaintiff's pain increased, he went to another hospital, where he was admitted and treated. He brought suit against North Shore University Hospital and medical personnel there.

New York's Article 16 generally, and Civil Practice Law & Rules (CPLR) ' 1601 specifically, may reduce the respective liability of named defendants in a medical malpractice action if there is a plaintiff's verdict against one or more of them. When the liability of a single named defendant exceeds 50%, that defendant is responsible for all non-economic damages to the plaintiff, although he may seek contribution from the other tortfeasors. However, if a named defendant's liability is less than 50%, that defendant is responsible only for its proportionate share. Because of this scheme, the named defendants moved to have the name of Dr. Antaki (the plaintiff's father) placed on the verdict sheet so that the jury could allocate some portion of the liability for plaintiff's injuries to Dr. Antaki, if it so chose. Defendants contended Dr. Antaki's examination of his son with a stethoscope after an emergency room visit created a patient-physician relationship and he could thus be charged with an “indirect claim for malpractice” in plaintiff's suit against the named defendants.

The court declined to charge Dr. Antaki with an indirect claim for malpractice, stating that “in conformity with common sense” and except in rare and egregious circumstances, “the ministrations of a parent who happened also to be a physician in the ordinary care of his offspring would not create a physician-patient relationship capable of resulting in medical malpractice liability.”

Almost No Information in Complaint, But It's Enough

The U.S. District Court for the Western District of Michigan found that a plaintiff's complaint was sufficiently pleaded under the liberal notice-pleading requirements of the Federal Rules of Civil Procedure to survive dismissal under Rule 12(b)(6), even though it cited only the defendants' “negligence” as causing the decedent nursing home resident's death, with no other elaboration. Bilecki v. Mather Investors LLC, Slip Copy, 2008 WL 4376372 (W.D.Mich.).

The personal representative of the estate of Dorothy Solka filed a complaint in January 2008 alleging that negligence on the part of the Mather Nursing Center (Mather) and its agents and employees caused her death. Mather moved to dismiss the complaint for failure to state a claim upon which relief could be granted (Fed.R.Civ.P. 12(b)(6)).

The court noted that the Federal Rules of Civil Procedure provide for a liberal system of notice pleading, in accordance with which a plaintiff need only provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory. Commercial Money Ctr. Inc. v. Ill. Union Ins. Co. , 508 F.3d 327, 336 (6th Cir.2007).

The defendants asserted that the complaint appeared “to sound in some form of medical malpractice as, other than the statement of diversity, there is no other statutory authority stated in the Complaint for bringing this cause of action.” The court responded by noting that a federal complaint is not required to set forth the legal theory that it relies upon. In addition, the complaint itself stated that the basis upon which relief was being sought was the “ordinary negligence of the defendant's agents and employees.” As such, it met the requirements of the federal notice-pleading scheme and dismissal in accordance with Rule 12(b)(6) was not warranted.

Examination Performed for Tort Action Gives Rise to Negligence Suit

Because the defendant physician injured the plaintiff while conducting an examination in the context of a personal injury action on behalf of an alleged tortfeasor, the examinee's cause of action against the physician should be characterized as one for negligence, rather than for medical malpractice. Bazakos v. Lewis, — N.Y.S.2d —-, 2008 WL 4356120 (N.Y.A.D. 2 Dept. 9/23/08).

The plaintiff's car was allegedly rear-ended by another car. The plaintiff, Lewis J. Bazokos, brought suit against that car's driver to recover for his injuries. In conjunction with that suit, Bazakos was required to appear for examination at the offices of defendant Philip Lewis, an orthopedic surgeon. There, the doctor allegedly manipulated the plaintiff in such a way as to injure him.

Approximately two years and 11 months after that medical examination took place, Bazakos commenced this action against Dr. Lewis, alleging that Lewis “committed negligence toward” him during the medical examination. Dr. Lewis moved to dismiss, asserting that the suit was time-barred because, although it was asserted as one for negligence (with a three-year statute of limitations), the suit actually sounded in medical malpractice (with a two-and-a-half-year statute of limitations). Bazakos countered that, as there was no physician-patient relationship between himself and Dr. Lewis, his claim sounded in negligence, not medical malpractice.

The trial court agreed with Dr. Lewis and, therefore, granted Lewis's motion to dismiss. The appellate court reversed, noting that well-settled New York law holds that the essence of a medical malpractice action is the existence of the duty that arises from the physician-patient relationship ( see Caso v. St. Francis Hosp. , 34 AD3d 714; Mendelson v. Clarkstown Med. Assoc. , 271 AD2d 584). Said the court, “It is beyond cavil that a statutory medical examination is an adversarial process. The examinee's attendance is compelled by rule of law (see 22 [New York Codes, Rule and Regulations] NYCRR 202.17), and his or her engagement and interaction with the examining physician is nonconsensual. Indeed, because of the inherently adversarial nature of these types of examinations, this Court long ago recognized the examinee's right to be examined in the presence of his or her attorney ( see Ponce v. Health Ins. Plan of Greater N.Y. , 100 AD2d 963). In stark contrast, the physician-patient relationship is characterized by the confidentiality and trust necessary to facilitate the securing of adequate diagnosis and treatment ' Critical to a finding of a physician-patient relationship is the consensual nature essential to the formation of the relationship.”

Here, Bazakos did not expect, seek, or receive medical treatment or diagnosis from Dr. Lewis. There was no “patient” in this scenario, only an “examinee” compelled to participate because of the rules pertaining to pretrial discovery and disclosure in personal injury actions. Because of this, the court found that the examining physician's duty not to injure the examinee during the evaluation brought up questions to be settled within a simple negligence cause of action rather than in one for medical malpractice.

Physician/Father Not Proper Co-Defendant

A New York court refused to permit a jury to consider whether a father's care of his son, (when the father was also a physician) could render him partially legally responsible for harm to the plaintiff due to medical malpractice. Antaki v. Lerman, 006628/06 (Sup. Ct., Nassau Co. 9/22/08).

The plaintiff was ill and saw a doctor at defendant North Shore University Hospital Plainview. After he went home he continued to have problems, including diarrhea. Plaintiff's father, August Antaki, M.D., was a retired or semi-retired pathologist. When his son's medical condition began to deteriorate, Dr. Antaki spoke over the phone with plaintiff's doctor, who suggested that Dr. Antaki listen for bowel sounds. Dr. Antaki did so, and reported to plaintiff's doctor that plaintiff was slightly distended, but did have bowel sounds. Shortly thereafter, when plaintiff's pain increased, he went to another hospital, where he was admitted and treated. He brought suit against North Shore University Hospital and medical personnel there.

New York's Article 16 generally, and Civil Practice Law & Rules (CPLR) ' 1601 specifically, may reduce the respective liability of named defendants in a medical malpractice action if there is a plaintiff's verdict against one or more of them. When the liability of a single named defendant exceeds 50%, that defendant is responsible for all non-economic damages to the plaintiff, although he may seek contribution from the other tortfeasors. However, if a named defendant's liability is less than 50%, that defendant is responsible only for its proportionate share. Because of this scheme, the named defendants moved to have the name of Dr. Antaki (the plaintiff's father) placed on the verdict sheet so that the jury could allocate some portion of the liability for plaintiff's injuries to Dr. Antaki, if it so chose. Defendants contended Dr. Antaki's examination of his son with a stethoscope after an emergency room visit created a patient-physician relationship and he could thus be charged with an “indirect claim for malpractice” in plaintiff's suit against the named defendants.

The court declined to charge Dr. Antaki with an indirect claim for malpractice, stating that “in conformity with common sense” and except in rare and egregious circumstances, “the ministrations of a parent who happened also to be a physician in the ordinary care of his offspring would not create a physician-patient relationship capable of resulting in medical malpractice liability.”