 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Feliciano-Delgado v. New York Hotel Trades Council3/22/2001
Order, Supreme Court, Bronx County (Janice Bowman, J.), entered December 22, 1999, which, insofar as appealed from, denied defendants-appellants' motions for summary judgment to dismiss the complaint and cross-claims on the ground that the action against them was barred by the exclusivity provisions of the Workers' Compensation Law, unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint and cross-claims as against them.
Plaintiff Iraida Feliciano-Delgado is a registered nurse employed by defendant New York Hotel Trade Council and Hotel Association of New York City Health Center Inc. d/b/a Health Center Family Medical Office ("Health Center"). Health Center is a medical facility which provides medical services for members of various hotel and restaurant industry union locals. As an employee of Health Center, plaintiff was entitled to treatment from its physicians free of charge. If she saw a doctor not affiliated with Health Center, without a referral from a Health Center doctor, she would be responsible for the cost.
In 1993, plaintiff began experiencing pain in the heel of her right foot, and sought treatment at Health Center. She was treated by the five individual defendants, who are either physicians or podiatrists, all employed by Health Center. Plaintiff alleges that defendants were negligent in failing to diagnose and timely treat her now-debilitating condition, known as "Reflex Sympathetic Dystrophy."
After plaintiff's deposition, defendants Peterson and Wooster moved for summary judgment asserting that plaintiff's exclusive remedy is under the Workers' Compensation Law; defendants Sreedharan and the Health Center cross- moved for the same relief. The motion court's denial of those motions constituted error.
The "fellow-employee rule" of the Workers' Compensation Law provides that " he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee . . . when such employee is injured or killed by the negligence or wrong of another in the same employ" (Workers' Compensation Law ยง29 ). As this Court has recently pointed out, analysis of whether the provision applies in a given instance must focus on three key factors: "the doctor's professional services were offered and paid for by the employer; the services were not available to the general public; and plaintiff obtained the services not as a member of the public but only as a consequence of his employment" (see, Marange v Slivinski, 257 AD2d 427, 428).
In Garcia v Iserson (33 NY2d 421), the Court of Appeals explained that where an employee was treated in his employer's infirmary by a physician paid by the employer to provide such care, the employee's resulting claim of malpractice against his fellow employee-physician falls within the scope of the Workers' Compensation Law's exclusivity provision. The Garcia Court distinguished Volk v City of New York (284 NY 279) with the explanation that in Volk, the plaintiff, an employee at a public hospital, sought treatment at the hospital just as any member of the public was entitled to, and accordingly, "the services which she received were not incidental to her employment" (33 NY2d at 423, supra). This distinction between the two types of situations has been maintained repeatedly: on one hand, there are those where hospital employees seek treatment as a hospital patient, and, on the other, those where medical services rendered by a co-employee are only available to employees. While in the former situation, the injuries resulting from the alleged malpractice do not "arise out of the injured person
Page 1 2 3 New York Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|