| Spiegel v Goldfarb |
| 2009 NY Slip Op 07618 [66 AD3d 873] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Edward Spiegel et al., Appellants-Respondents, v AndrewGoldfarb et al., Defendants. Shearer & Essner, LLP, NonpartyRespondent-Appellant. |
—[*1] Shearer & Essner, LLP, New York, N.Y. (David M. Shearer of counsel), nonpartyrespondent-appellant pro se.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appealfrom so much of an order of the Supreme Court, Nassau County (Martin, J.), dated June 30,2008, as denied that branch of their motion which was to set an attorney's fee pursuant to themedical malpractice fee schedule set forth in Judiciary Law § 474-a on the portion ofsettlement proceeds received from the defendant Enzo Clinical Labs, Inc., and the nonpartyShearer & Essner, LLP, cross-appeals, as limited by its brief, from so much of the same order asdenied its cross motion for the imposition of interest pursuant to CPLR 5001 on a sum held in itsescrow account pending resolution of the fee dispute.
Ordered that the order is reversed insofar as appealed from, on the law, and that branch ofthe plaintiffs' motion which was to set an attorney's fee pursuant to the medical malpractice feeschedule set forth in Judiciary Law § 474-a on the portion of settlement proceeds receivedfrom the defendant Enzo Clinical Labs, Inc., is granted; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The nonparty law firm Shearer & Essner, LLP (hereinafter Shearer), represented theplaintiffs in this action against the defendants Dr. Andrew Goldfarb, Anne Belle Platt, and EnzoClinical Labs, Inc. (hereinafter Enzo), to recover damages for injuries sustained by the plaintiffEdward Spiegel, allegedly as a result of the defendants' failure to diagnose endocarditis, aninfection of the heart valves. Upon completion of discovery, the plaintiffs accepted settlementoffers from Goldfarb and Enzo.
Thereafter, the plaintiffs disputed the attorney's fee claimed by Shearer on the ground thatShearer erroneously calculated the portion of its fee based on the settlement proceeds from Enzo.Specifically, the plaintiffs claimed that that portion of the fee should have been calculated basedon a [*2]medical malpractice fee schedule pursuant to JudiciaryLaw § 474-a, rather than a negligence fee schedule pursuant to 22 NYCRR 691.20 (e),which resulted in a greater fee. Shearer placed the disputed portion of the settlement proceeds inits escrow account pending resolution of the fee dispute.
Subsequently, the plaintiffs moved to set Shearer's fee on the portion of the settlementproceeds received from Enzo pursuant to the medical malpractice fee schedule set forth inJudiciary Law § 474-a. Shearer cross-moved to award interest on the disputed sumpursuant to CPLR 5001. The Supreme Court denied both motions.
The Supreme Court erred in denying the plaintiffs' motion. In distinguishing whetherconduct may be deemed malpractice or negligence, the critical factor is the nature of the dutyowed to the plaintiff that the defendant is alleged to have breached (see Pacio v Franklin Hosp., 63 AD3d1130 [2009]; Ryan v Korn, 57AD3d 507, 508 [2008]; Caso v St.Francis Hosp., 34 AD3d 714 [2006]). A negligent act or omission by a health careprovider that "constitutes medical treatment or bears a substantial relationship to the rendition ofmedical treatment by a licensed physician constitutes [medical] malpractice" (Bleiler vBodnar, 65 NY2d 65, 72 [1985]; see Weiner v Lenox Hill Hosp., 88 NY2d 784, 788[1996]; Scott v Uljanov, 74 NY2d 673, 674-675 [1989]; Pacio v Franklin Hosp., 63 AD3d1130 [2009]; D'Elia v MenorahHome & Hosp. for the Aged & Infirm, 51 AD3d 848, 850-851 [2008]; Caso v St. Francis Hosp., 34 AD3d714 [2006]; see also Bazakos vLewis, 12 NY3d 631 [2009]). More specifically, an alleged negligent act constitutesmedical malpractice when it can be characterized as a "crucial element of diagnosis andtreatment" and "an integral part of the process of rendering medical treatment to [the plaintiff]"(Bleiler v Bodnar, 65 NY2d at 72).
Here, the laboratory services performed by Enzo bore a substantial relationship to therendition of medical treatment to the plaintiff Edward Spiegel (hereinafter the plaintiff) by Dr.Goldfarb. The results of the blood cultures performed by Enzo were a "crucial element" of theplaintiff's diagnosis and treatment and an "integral part of the process of rendering medicaltreatment" to him (Bleiler v Bodnar, 65 NY2d at 72). Therefore, the claim against Enzosounded in medical malpractice, and counsel fees on the portion of the settlement proceedsreceived from Enzo should have been awarded in accordance with Judiciary Law § 474-a.
The parties' remaining contentions either are without merit, are improperly raised for the firsttime on appeal, or need not be reached in light of our determination. Prudenti, P.J., Miller,Chambers and Roman, JJ., concur. [See 2008 NY Slip Op 31948(U).]