Ordered that the order is affirmed, with costs.
The plaintiff fractured her ankle while alighting from the defendant physician's examining table and commenced this action to recover for her injuries approximately two years and 11 months later. On the defendant's motion for summary judgment dismissing the complaint as time barred, the only issue is whether this action is governed by the 2½-year Statute of Limitations for medical malpractice actions (CPLR 214-a) or the three-year statute for negligence actions generally (CPLR 214). Special Term correctly concluded that this action sounds in medical malpractice and properly granted summary judgment to the defendant.
The critical question in determining whether an action sounds in medical malpractice or simple negligence is the nature of the duty to the plaintiff which the defendant is alleged to have breached (see, Bleiler v Bodnar, 65 N.Y.2d 65; Lenny v Loehmann, 78 A.D.2d 813). When the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence. Those cases in which an action has been labeled as one sounding in medical malpractice because of the need for expert testimony (see, Hale v State of New York, 53 A.D.2d 1025; Mossman v Albany Med. Center Hosp., 34 A.D.2d 263; Morwin v Albany Hosp., 7 A.D.2d 582) are therefore irrelevant to this determination.
These allegations establish that the duty the defendant is charged with violating arose from the physician-patient relationship and was substantially related to his treatment of the plaintiff. Had the plaintiff not consulted the defendant in his capacity as a physician, there would have been no reason for her to be on his examining table in the first place. It was only his awareness of her complaints, acquired in the course of that relationship, when coupled with his knowledge as a physician, which would give rise to a duty to assist her on or off the table, or to keep her "under constant surveillance in view of her complaints" (emphasis supplied). Such acts, if negligent, constitute malpractice (see, Lenny v Loehmann, 78 A.D.2d 813, supra). Only the allegation of a failure to respond to the request for assistance in getting off the table receives specific attention from our dissenting colleague, but the failure of a doctor or his employee in helping a patient from the diagnostic table is clearly related to the treatment just given, and the duty to help the patient down safely also derives from the same treatment as the doctor-patient relationship. Thus, the order granting summary judgment was correctly made.
The plaintiff's complaint, as well as her bill of particulars, alleged, inter alia, that she was injured on August 17, 1981, by reason of the defendant doctor's failure to respond to her request for assistance in getting off an examination table. The majority is of the view that this allegation sounds in malpractice, and that the plaintiff's action, commenced on August 28, 1984, is barred by the 2½-year Statute of Limitations governing malpractice actions (see, CPLR 214-a).
I disagree with the majority's conclusion. In my view, the plaintiff's allegation in her complaint regarding the defendant's
In Hale v State of New York (53 A.D.2d 1025), the court stated: "To maintain an action for injuries or wrongful death sustained while under the care and control of a medical practitioner and/or medical facility, a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice (Morwin v Albany Hosp., 7 A.D.2d 582, 584-585 * * *). The theory of simple negligence is restricted to those cases where the alleged negligent act is readily determinable by the trier of facts on common knowledge". I fail to see any reason why a jury could not determine, as a question of fact, whether or not the defendant was guilty of simple negligence in failing to respond to the plaintiff's request for assistance in getting off the examination table, as alleged in the complaint.
Since this allegation is governed by the three-year Statute of Limitations, the complaint should not have been dismissed as time barred.