February 12, 2021

In its Decision and Order filed on January 14, 2021, the Supreme Court of the State of New York Appellate Division, First Judicial Department (“New York Appellate Court”) held: “Plaintiff’s medical malpractice claim against Dr. Delfin is barred by the Workers’ Compensation Law because it is undisputed that Dr. Delfin’s services were made available to plaintiff’s decedent, an employee of defendant JPMorgan Chase & Co., at JPMorgan’s expense and on its premises and that the services provided by Dr. Delfin at JPMorgan’s health center were made available to the decedent as an employee of JPMorgan (Garcia v Iserson, 33 NY2d 421 [1974]; accord Marange v Slivinski, 257 AD2d 427 [1st Dept 1999]). The fact that Dr. Delfin is employed by NYU, which acts as an independent contractor of JPMorgan, does not change this determination since Dr. Delfin’s services are offered and paid for by JPMorgan (Feliciano-Delgado v New York Hotel Trades Council & Hotel Assn. of N.Y. City Health Ctr., 281 AD2d 312 [1st Dept 2001]; Carman v Abter, 300 AD2d 160 [1st Dept 2002]).”

Source Walsh v Pisano, Case No. 2020-01603.

In Garcia v. Iserson (33 N.Y.2d 421 [1974]), the Court of Appeals explained that where an employee was treated in his employer’s infirmary by a physician paid by the employer to provide such care, the employee’s resulting claim of malpractice against his fellow employee-physician falls within the scope of the Workers’ Compensation Law’s exclusivity provision.

In the Garcia case, the New York Court of Appeals held: “the claim of an employee for alleged malpractice of a physician whose professional services were made available to the employee at the employer’s expense and on its premises fall here within the scope of the Workmen’s Compensation Law … [t]here was here a professional service made available by the employer to its employees; the services were not available generally to members of the public; plaintiff obtained the services not as a member of the public but only in consequence of his employment … the medical services of which plaintiff availed himself were not to be had by the  general public, but were provided as incidental to his employment. The risk of injuries to Mr. Garcia at the hands of Dr. Iserson was clearly increased by the fact of Mr. Garcia’s employment … Plaintiff’s exclusive remedy in this case for injuries received in the course of medical care rendered to him by Dr. Iserson is under the Workmen’s Compensation Law (Workmen’s Compensation Law, § 29, subd. 6). Since the facts material to the present disposition are undisputed, the complaint in plaintiff’s common-law action for malpractice against the doctor and Imperial must be summarily dismissed … we conclude that plaintiff’s injuries arose out of and in the course of his employment as the result of the alleged negligence of another in the same employ.”

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