In this action brought by plaintiffs to recover for personal injuries allegedly inflicted upon plaintiff Frank Twitchell by defendant, a medical doctor, in the course of an examination of Frank Twitchell's knee for disability insurance purposes, the complaint alleges five separate causes of action numerically designated as follows: first, medical malpractice; second, negligence; third, intentional tort and lack of informed consent; fourth, (derivatively) medical malpractice; fifth, (derivatively) negligence. The second, third and fifth causes of action contain relief clauses in which a specific dollar amount is requested. Additionally the complaint seeks punitive damages in the sum of $2,000,000 for the same causes of action. The acts complained of in the several causes of action are largely indistinguishable save for the elimination from the second and fifth causes of action of paragraph 15 of the complaint which, inter alia, uses the precise words "medical malpractice".
Defendant moved pursuant to CPLR 3211 (subd [a] par 7) and CPLR 3017 (subd [c]) for an order dismissing the second, third and fifth causes of action along with any alleged cause of action for punitive damages on the ground that CPLR 3017 (subd [c]) prohibits the inclusion of any statement of specific monetary damages in a complaint based upon medical malpractice. Special Term granted the motion insofar as it related to the third cause of action and denied the motion as to the second and fifth causes of action. Both parties appeal from that determination.
The standards of legal responsibility for those engaged in the practice of medicine is aptly set forth in Pike v Honsinger (155 N.Y. 201, 209), wherein the court stated: "The law relating to malpractice is simple and well settled, although not always easy of application. A physician and surgeon, by taking charge of a case, impliedly represents that he possesses, and the law places upon him the duty of possessing, that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices, and which is ordinarily regarded by those conversant with the employment as necessary to qualify him to engage in the business of practicing medicine and surgery. Upon consenting to treat a patient, it becomes his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning to accomplish the purpose for which he was employed. He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge. The law holds him liable for an injury to his patient resulting from want of the requisite knowledge and skill, or the omission to exercise reasonable care, or the failure to use his best judgment."
Plaintiffs would have us apply the narrow test of treatment by a physician, or examination for the purposes of treatment, in order to find that a case involves medical malpractice instead of simple negligence. We decline to do so. Such an interpretation is too constricting and fails to recognize the realities of the relationship that arise, however briefly, when a physician is in the process of exercising his profession and utilizing the skills which he has been taught in examining, diagnosing, treating or caring for another person.
Here, plaintiff Frank Twitchell went to defendant, albeit at the request of John Hancock Insurance Company, for the purposes of an examination. The plaintiff knew that he was seeing a doctor and must have been aware of the fact that the doctor, after the examination, would express his medical judgment to John Hancock. Defendant was acting as a doctor and in doing so he agreed to perform his common-law
Having concluded that this is a medical malpractice case, CPLR 3017 (subd [c]) must be complied with, so the specific amount of damages contained in the prayer for relief in the second, third and fifth causes of action must be stricken. However, we dismiss these causes of action in their entirety because they do not allege any separate ground for recovery (see Rainbow v Elia Bldg. Co., 49 A.D.2d 250). The proof to support a verdict under the theory of medical malpractice does not differ from the proof required for recovery under negligence and, since there would be but one recovery for each of the plaintiffs, they are not prejudiced if only the medical malpractice causes of action remain.
There remains for our consideration plaintiffs' contention, alleged in the third cause of action, that in examining and manipulating Frank Twitchell's knee defendant did so with the wrongful intention of injuring him and without his consent, thereby committing a battery upon Twitchell. This argument is without merit. While lack of informed consent is a proper element of a medical malpractice cause of action (Darrah v Kite, 32 A.D.2d 208), the failure to obtain such consent should not be used to elevate the cause of action to one for intentional tort. "The doctor in a malpractice case is ordinarily not an actor who intends to inflict an injury on his patient and any legal theory which presumes that intent appears to be based upon an erroneous
Finally, plaintiffs seek punitive damages in the amount of $2,000,000. Such damages may only be assessed when the actions complained of constitute gross negligence or intentional, wanton, reckless and malicious conduct (see Karlsons v Guerinot, 57 A.D.2d 73). It does not appear that plaintiffs submitted any affidavit at Special Term in opposition to defendant's motion to dismiss. While plaintiffs were not required to present evidentiary facts in opposition to the motion under CPLR 3211 (subd [a], par 7), there should be some showing in the complaint or elsewhere to support a claim for punitive damages. An examination of the complaint fails to disclose any allegation upon which such a claim may rest, and having already determined that this is a medical malpractice case and the claim for an intentional tort may not be maintained under the third cause of action, we find that plaintiffs have not met the burden of sustaining any cause of action for punitive damages. Consequently, any intended cause of action for punitive damages which may be contained in the complaint is dismissed.
The order of Special Term should be modified to grant defendant's motion to dismiss the second and fifth causes of action and to delete from plaintiffs' amended complaint any demand for punitive damages made therein, and otherwise the order should be affirmed.
Order unanimously modified, and as modified affirmed, without costs, in accordance with opinion by DOERR, J.