[W]hether (1) the defendant affirmatively advised the plaintiff as to a course of treatment by recommending that the plaintiff return to work without any restrictions on his physical activities, (2) the advice was incorrect, (3) it was foreseeable that the plaintiff would rely on the advice since the plaintiff testified that two other treating physicians advised him not to return to work, and (4) the plaintiff relied on the advice to his detriment (see Heller v Peekskill Community Hosp., 198 AD2d 265).
We already know that an IME doctor that actually injures an examinee can be sued and that the action will be governed by a three two and a half year SOL (Malpractice) rather than a six three year sol (Negligence). See Bazakos v Lewis, 2009 NY Slip Op 05199 (Ct. App., 2009). Thanks to Turk for pointing out that I got that wrong. I was tired, distracted, and stupid, when I wrote it.
For a more detailed analysis of the case, head over to NewYorkPersonalInjuryBlog (h/t btw). Make sure to read the comments. You can ignore mine; it has nothing to do with the case.
In other news, I finished reading The Stand. It was great all the way up to the last forty pages or so, whence it began to suck ass. I had the unedited version, so I don’t know if the original had a different/better ending. I can only hope. Now I’m reading Gulag: A History and You Shall Know Our Velocity. Why both? I was hoping to have Gulag delivered over the weekend, but it didn’t come. I thought I had some extra books at the office, but, while I did, I didn’t have any that I felt like reading. So I was forced to start reading Velocity because it was on my phone and I knew that I liked the author (Dave Eggers) because I read A Hearbreaking Work of Staggering Genius and What Is the What1, and really liked them. At least now, if I forget one, I should have the other with me. There should be no reason for me to have to look up during my subway rides for the next few weeks.
If it were only so easy to get people to stop sitting next to me on the train and insist on spreading their legs as far apart as possible. Am I the only person who doesn’t want some random stranger’s leg touching mine? It’s creepy. How in god’s name can someone do that and feel good about themselves. Sometimes I fight the good fight and refuse to move my leg to get away, but it’s really distracting and aggravating. And if I don’t, I look like some fat crazy guy, intensely reading something on his phone, with his legs together as if he was a three-year-old who really needs to use the bathroom. I can’t win.
I was going to write about something else, and blow everyone’s mind, but someone had to be a baby.
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1: If you clicked on the link and found the book to be remotely interesting, read this first: We Wish to Inform You that Tomorrow We Will Be Killed with Our Families: Stories from Rwanda. What Is the What is a great book, but We Wish to Inform You, is an important book. You will be a better person for having read it, I swear.
Don’t you see the implications. My God it boggles the mind. Look at the way the cases are aligning. You don’t need to look far. You have the makings of a gravity induced earthquake for the evil suits of the insurance industry.
The mills break the law and the doctors commit institutionalized malpractice.