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)
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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.