Doctor Claims Seizure, Patient Claims Sexual Assault

A New York woman, Giselle Mayr, is seeking a lawsuit against a doctor for inappropriately touching her during an examination in 2008. The doctor, Dimitri Alvarez, claims that he was having a seizure during the suggested incident. He said that a neurologist diagnosed him with a seizure disorder after the incident happened.

Mayr sued Alvarez in 2009 for assault and battery. She also filed charges for negligent hiring and supervision against the Family Practice of Kingston, where the incident occurred.

The New York Supreme Court dismissed the case, but the third department appellate division ruled that Alvarez should not have been granted summary judgement.

The judge decided that even if he was having a seizure during the incident, his behavior is still improper. Alvarez was not regularly taking his anti-seizure medication that he got after he was involved in two car accidents before the incident with the incident with Mayr.

Comments from Allen:

Under New York law, this case was brought against the doctor on the theory of assault and battery.  In Idaho, the state Supreme Court has ruled that the suit could only be brought by proving the elements of medical malpractice.  

Common sense would indicate that if a doctor gropes a patient in the course of an exam, battery (harmful or offensive, non-consensual touching) would be the appropriate theory.  However, in Idaho, if this occurs in a setting in which the patient is seeking medical treatment, it must be brought under a medical malpractice theory. The Idaho Supreme Court has been rightly criticized for decisions it has made dismissing numerous  medical malpractice cases which appear to have merit.  

One recent case involved patient groping.  The patient sued under the medical malpractice theory after being groped by a physician's assistant in a hospital.  She had to demonstrate that the PA violated a standard of care for physician's assistants in Idaho in that city at the time the groping occurred, with testimony from a doctor familiar with the standard of care for that city for that time and for that procedure (he was allegedly taking the woman's pulse).  All of that was demonstrated, with testimony from an Idaho physician, who relied upon the code of conduct governing physicians in Idaho.  The Idaho Supreme Court dismissed the case on the basis that the plaintiff alleged the PA violated the code of conduct governing physicians, but did not invoke a criminal statute.  

Prior to filing her suit, there was no statute or rule stating the standard allegedly violated by a physician in a medical malpractice suit had to be a criminal standard; in fact, all authority indicated otherwise.  

Idaho needs a major revision of its medical malpractice laws.  There should be a clear and simple means to determine whether a physician has or has not acted negligently.  There is no other area of law in Idaho in which 98% of the cases filed are dismissed by the court before they ever get to trial.

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Allen Browning is an attorney in Idaho Falls, Idaho who handles personal injury and criminal defense. He has over 30 years of experience and handled thousands of cases. Allen work with cases from all over Idaho. Call (208) 542-2700 to set up a free consultation if you are facing legal trouble or you have been involved in an accident.

Also, check out browninglaw.net for more information about Allen and Browning Law.

Allen Browning can help with all personal injury claims including motor vehicle accidents, serious and disabling accidents, and wrongful death claims.

Allen Browning is an Idaho Falls attorney who can also help with drunk driving (DUI) , Felony, Misdemeanor, Domestic Violence, Drug Crimes, Theft, Juvenile Crimes, Violent Crimes, and Probation/Parole Violations. He is one of the most experienced and successful criminal defense attorneys in Idaho.
Allen is able to provide his services if the incident takes place in the following Idaho Areas: American Falls, Arco, Blackfoot, Burley, Driggs, Idaho Falls, Malad City, Pocatello, Rexburg, Rigby, Salmon, St. Anthony, Twin Falls, Bannock County, Bingham County, Bonneville County, Butte County, Cassia County, Clark County, Fremont County, Jefferson County, Lemhi County, Madison County, Oneida County, Power County, Teton County, and Twin Falls County.    
Sources for more information:

http://www.courthousenews.com/2015/07/23/seizure-defense-cant-defeat-assault-suit.htm

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