603 N.Y.S.2d 548 | N.Y. App. Div. | 1993
—In an action to recover damages for medical malpractice, the defendant Jay Joseph Winokur appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered August 16, 1991, which denied his motion, inter alia, for summary judgment dismissing the complaint insofar as it is asserted against him.
Ordered that the order is affirmed, with costs.
The plaintiff, after allegedly injuring his back while at work, was sent to the appellant Dr. Jay Winokur, to be examined for purposes of determining his eligibility for Workers’ Compensation. The plaintiff alleges that, over the course of the several examinations conducted by Dr. Winokur, Dr. Winokur not only recommended physical therapy and suggested a therapist, but also told the plaintiff that his back condition had improved and that he was able to return to work without restriction of his activities. However, the plaintiff alleges, his return to work was premature and either caused a herniated disc or exacerbated an undiagnosed herniated disc, necessitating surgery. This, he asserts, was medical malpractice. Dr. Winokur moved to dismiss the complaint, or for summary judgment, alleging that no doctor-patient relationship existed between the parties.
In order to maintain an action to recover damages arising from medical malpractice, a doctor-patient relationship is necessary (see, Lee v City of New York, 162 AD2d 34; Murphy v Blum, 160 AD2d 914; Hickey v Travelers Ins. Co., 158 AD2d 112; Fraser v Brunswick Hosp. Med. Ctr., 150 AD2d 754). This relationship is created when professional services are rendered and accepted by another person for purposes of medical or surgical treatment and may be based either on an express or implied contract (see, Lee v City of New York, supra). In general, this relationship is not formed when a doctor exam