MEDICAL MALPRACTICE

Sosnoff v. Jackman, 2007 N.Y. Slip Op. 08439 (N.Y. App. Div. Nov. 7, 2007)

The Appellate Division of the Supreme Court of New York, in reversing the ruling of a lower court in a medical malpractice action, held that there was evidence of a hospital-patient relationship regarding a patient's participation in a research study. The appeals court found that there was evidence that when the patient agreed to participate, she was not merely a subject or control person, but, instead, expected to receive medical treatment and services and that she could rely on the physicians for proper diagnosis if cancer developed during the study.

The appeals court affirmed the lower court's denial of a radiologist's motion for summary judgment, in which the radiologist asserted that there was no physician-patient relationship. The appeals court noted that despite the general rule that "discrete, intermittent diagnostic services rendered by a radiologist are not part of a continuous course of treatment" unless such services consist of "periodic diagnostic examinations" prescribed as part of ongoing care for a patient's existing condition, there was an issue of fact as to "whether the sonograms performed pursuant to the protocol for the cancer detection research study were also prescribed to monitor her condition as a patient at high risk for ovarian cancer."