MANSWELL v. “John Doe,” et al., Defendants. (2005)

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered December 24, 2003, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff wife contracted a serious virus in the course of her employment as a neonatal nurse at defendant hospital.   She went to the hospital's emergency room and was admitted.   She and her husband brought this action alleging malpractice and negligence by the hospital and various medical professionals in causing an exacerbation of her injuries.   Defendants argue that the action is barred by the wife's prior successful application for workers' compensation benefits for the same injuries.

 It is well settled that neither § 11 nor § 29 of the Workers' Compensation Law bars the claim of a hospital employee who alleges negligent care by the hospital under these circumstances, even if the underlying injury was suffered in the course of employment (cf. Feliciano-Delgado v. New York Hotel Trades Council & Hotel Assoc. of N.Y. City Health Ctr., 281 A.D.2d 312, 722 N.Y.S.2d 498 [2001] ).   The fact that the same injuries form the basis for both claims is immaterial (Firestein v. Kingsbrook Jewish Med. Ctr., 137 A.D.2d 34, 528 N.Y.S.2d 85 [1988] ).   Plaintiffs cannot recover twice because the proceeds of this action are subject to a workers' compensation lien (id. at 37-38, 528 N.Y.S.2d 85).   Furthermore, there are questions of fact as to whether plaintiff's injuries result inexorably from her illness, for which she could not recover in this action as defendants argue, or from defendants' negligence.