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Malpractice 88


Malpractice 88

The plaintiff alleges that she was injured due to the negligence and malpracticecommitted by the defendant who is a licensed podiatrist. The action against the defendant was started by service of a summons and complaint. The plaintiff asserts at this point that all of the pretrial proceedings have been completed and now moves for trial. The plaintiff states that she is entitled to special preference under CPLR 3403.

The defendant argues that the plaintiff’s action is for podiatric malpractice, which is separate from the practice of medicine and because of this is not entitled to special preference under CPLR 3403. The defendant further argues that the motion is premature because the plaintiff has not filed a note of issue and statement of readiness.

Court Discussion

The issues before the court relate to the motion by the plaintiff and whether or not podiatry is encompassed by the language “medical malpractice” as discussed in CPLR 3403. If podiatry is considered under medical malpractice, should the case be given preference on the court calendar? Finally, the question is whether the plaintiff has shown destitution to warrant this relief is granted.

The defendant argues for a narrow construction of the fifth paragraph of the law which finds that podiatry is a separate and distinct from the practice of medicine. The defendant would have the court come to the conclusion that the medical preference that is referred to in this particular law does not apply in this particular case.

It is true that podiatry has been held as a separate and distinct field from the practice of medicine. However, there are some cases where it cannot be disputed that podiatry is treated as a medical malpractice action. In fact, podiatry is considered a branch of healing and there is a panel hearing required before a trial can be conducted, the same as any type of medical malpractice case.

In order to come to the conclusion that podiatry is separate from other medical practices would mean that there would never be a podiatric malpractice case that would come to trial.

The other argument made by the defendant is that the plaintiff has not filed a note of issue precluding such relief.

Court Decision

The court has reviewed all of the issues that have been presented in this instant action and has concluded that the plaintiff’s motion is granted to the extent that the action will be given special preference based upon paragraph five of the law in question. However, the motion is denied otherwise and the action will be sent for a panel hearing in its regular order after a filing of a note of issue and a statement of readiness by the plaintiff.

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