On June 26, 2018, Justice Barbara Jaffe of the New York County, Supreme Court refused to dismiss the claim of a then 60 year old female patient who sued her male cardiologist for performing a rectal exam despite her protestation. The patient passed away from unrelated causes about 5 years after the incident and there was a 14 month delay in substituting an Administrator of the Estate for the deceased patient. The patient claimed that she had been under her cardiologist's care for years and that he knew she had a primary care physician who would take care of all health issues unrelated to cardiology.
The patient swore that "after completing an echo cardiogram, Defendant announced that he was going to do a rectal examination." In another litigation document (Verified Bill of Particulars) the plaintiff claimed: "Defendant, a cardiologist, against the articulated will and protestation of the plaintiff, inserted his hand into the rectum of the plaintiff. The defendant later stated that it was part of the examination and if plaintiff did not like it, she could find another doctor."
Suit was filed seeking damages for the physical and emotional pain and suffering caused by the alleged assault. This was an action sounding in assault and not medical malpractice. Therefore, an affidavit of merit from a physician was not required to oppose the motion to dismiss. Justice Jaffe found that a 14 month delay in substituting an Administrator was not unreasonable especially considering that there were medical records and other documentation sufficient to allow the defense an opportunity to counter the claims made. Jane Doe v Zaremski, 2018 WL 3201909