I had a bad week. I fell in a parking lot injuring my knee and needed surgery on my knee to fix the problem. Then the doctor who operated on my knee made my condition worse. What claims do I have for my injuries?
You actually have two different claims, but you have one lawsuit to bring. You can sue both the owner of the parking lot and the surgeon in the same case.
Aggravating and Precipitating Conditions Revisited
Aggravating and precipitating conditions discussed in a prior post highlighted the issue of two different claims arising out of one accident. In this case, your knee surgery was only necessary because you injured the knee in a trip and fall accident. Thus you have two claims, but you will have to bring only one lawsuit.
In fact, in that one lawsuit, you only have to sue the parking lot owner. It is foreseeable that if you need surgery to repair a knee injury, then the surgeon could malpractice the surgery, making things worse. Thus, the parking lot owner is responsible for any malpractice done during your knee surgery. So the parking lot owner is responsible for the knee injury from the fall and the malpractice damages. Glaser v M.Fortunoff of Westbury Corp., 71 NY2d 643, 529 NYS2d 59 (1988); Hill v St. Clare’sHosp., 67 NY2d 72, 499 NYS2d 904 (1986). Legally, the aggravation by a treating physician of an injury suffered by the injured because of the malpractice of the treating doctor is deemed to be a proximate result of the original wrong. Sauter v New York Cent. & H.R.R. Co., 66 NY 50 (1876).
So you could bring one case against the parking lot owner for all of your damages. You could potentially settle that case against the parking lot owner and bring a second case against the doctor who committed malpractice on the knee surgery. GOL § 15-108. However the doctor would be entitled to reduce the amount of any award by the amount of the first settlement.
By James Santner, Esq.
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