Issue of Fact as to Whether Cardiologist's Assistant Should Have Known to Assist Elderly Patient Off Scale So He Wouldn't Fall

Case: Cerniglia v. Cardiology Consultants of Westchester

Court: Supreme Court, Appellate Division, Second Department, New York

Date: 7/5/12

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident attorney)

**************************************************

RELATED POSTS:

MEDICAL MALPRACTICE DEFENDANT DOCTOR LOSES HIS SUMMARY JUDGMENT MOTION TO DISMISS CASE; FAILS TO MEET HIS BURDEN

DOCTOR COMMITTED MEDICAL MALPRACTICE BY HAVING A SEXUAL RELATIONSHIP WITH PATIENT, EVEN WHERE IT WASN'T PART OF TREATMENT

MEDICAL MALPRACTICE CASE: EXPERTS DISAGREE WHETHER BABY'S HYPOGLYCEMIA CAUSED BRAIN INJURY AND CEREBRAL PALSY.

**************************************************

Facts: Here's an interesting case. You decide. Is it an accident (negligence) or medical malpractice (professional negligence)?

Eighty-eight year-old plaintiff had undergone heart bypass surgery. He went to his doctor for an examination and stepped on a scale. At the time of this accident, he was being helped by a medical assistant who didn't know enough to assist him off the scale. So this patient fell and suffered injury.

Plaintiff sued for both medical malpractice and negligence.

The lower court granted defense summary judgment dismissing the plaintiff's medical malpractice claim, but left intact the plaintiff's claim for negligence, making the case just about an accident. This because the assistant wasn't a physician.

Is this correct, being that the plaintiff was at his doctor's office and the assistant worked for the doctor?

There was deposition testimony that the plaintiff's son assisted him into the office and possibly onto the scale.

After the weigh-in, plaintiff was told to go some three feet to an examination table. He fell during his walk.

Held: Summary judgment denied as to negligence claim for accident but was correctly granted as to medical malpractice claim as there's an issue of fact as to whether the medical assistant knew or should have known that the plaintiff needed assistance to get off the scale and move to the examination table.

Categories