Is the administration of an allergy injection by a medical assistant that causes an injury a simple negligent act (subject to a 3 year statute of limitations) or the provision of medical treatment (subject to a 2 1/2 year statute of limitations)?  On December 7, 2022, an appeals court covering Queens County Supreme Court cases upheld a decision by Judge O'Donoghue dismissing a medical malpractice claim disguised as a negligence claim. Essentially, the plaintiff's lawsuit was filed beyond the 2 1/2 year medical malpractice statute of limitations but within the 3 year statute of limitations for negligence claims.

The appeals court explained that just because a medical assistant administered the allergy injection to the plaintiff (who suffered an anaphylactic reaction), does not negate a finding that the defendant medical group furnished medical treatment to the plaintiff by a licensed physician. But for the licensed physician's decision to order the injection-the medical assistant would not have administered it. The case was dismissed by the trial court and the appeals court affirmed the decision. Rivera v Advanced Allergy & Asthma Assessment & Diagnostics, P.C., 2022 WL 17480776