| N.Y. App. Div. | Mar 22, 1990
Curt Luck, an infant who was born prematurely in January 1971, has severe developmental disabilities and mental retardation due to hydrocephalus. Alleging malpractice in the failure to properly and timely diagnose and treat the infant, plaintiff commenced an action against two pediatricians in July 1984. In November 1985, plaintiff commenced an action against defendant Albany Medical Center Hospital, which was consolidated with the action against the individual doctors (action No. 1). Plaintiff commenced a separate action against defendant Albany Medical College in October 1986 (action No. 2). By early February 1988, considerable discovery had been completed, but the medical malpractice panel had not been convened and plaintiff had not filed a statement of readiness or note of issue. Nevertheless, by letter dated February 18, 1988, Justice Walsh notified counsel that trial was scheduled for April 27, 1988. On February 23, 1988, Justice Walsh adjourned the trial without a new date, concluding that none of the parties could proceed to trial on the scheduled date. On the following day, plaintiff filed a note of issue and statement of readiness, apparently at the request of Justice Walsh.
During the spring of 1988, counsel for the Medical College discussed with plaintiff’s counsel the need for a physical examination of the infant. By letter dated June 28, 1988 plaintiff’s counsel formally advised defense counsel that he would not consent to a physical examination. The Medical College then moved for an order compelling the infant to submit to a physical examination, including "necessary testing”. Plaintiff objected, contending that the Medical College had waived its right to a physical examination by its undue delay in failing to make an earlier request and that the physical examination posed unacceptable risks to the infant,
As to plaintiff’s claim of undue delay or waiver, we see no abuse of discretion in Supreme Court’s decision to permit further discovery. The Medical College was the last party to be sued, more than two years after the first action was commenced. Discovery was still underway as late as February 1988 when plaintiff was deposed, and the matter was not ready for trial since the medical malpractice panel procedures had not been completed (see, Judiciary Law § 148-a; 22 NYCRR 202.56). Counsel for the Medical College also alleged that it took some time to locate a qualified pediatric neurologist to examine the infant because those who are qualified locally are employed by the Medical College.
Turning to the question of whether the physical examination should be prohibited due to the possibility of danger to the infant, the relevant standard was articulated in Lefkowitz v Nassau County Med. Center (94 AD2d 18). Once the opponent of the examination shows "that the proposed test is prima facie potentially dangerous” the burden shifts to the proponent to present "proof 'showing the necessity for such examination, the details of the procedure employed in making it, the frequency with which it has been done, together with the experience and observations which have been made by physicians as to pain, harm, or after [sic] results of any nature, occurring to persons so examined’ ” (supra, at 21, quoting Cardinal v University of Rochester, 271 App Div 1048).
It is conceded that in the case at bar MRI and CAT scans are relatively benign, but that the sedation required for someone with the infant’s disabilities to undergo either scan poses a theoretical risk. Accordingly, plaintiff clearly met her burden as the opponent. Based upon our review of the record, however, we agree with Supreme Court that the expert testimony at the hearing satisfied the burden imposed upon the Medical College as the proponent of the test procedure. In
Orders affirmed, with costs to defendant Albany Medical College. Casey, J. P., Weiss, Mikoll, Yesawich, Jr., and Levine, JJ., concur.