Seizure Defense Can’t Defeat Assault Suit

     (CN) – A New York woman can continue pursuing her assault lawsuit against a doctor who claims he was having a seizure during the alleged incident, a state appeals court ruled.
     Giselle Mayr was suffering from chest pains in 2008 when she visited Dimitri Alvarez’s office at Family Practice of Kingston, according to court documents. Her adult daughter, Brittney, was reportedly in the examination room as well.
     While listening to Mayr’s heart with a stethoscope, Alvarez allegedly put his hand on her left breast under her shirt. Mayr claims Alvarez asked her to lie down before making moaning sounds that Mayr and her daughter both considered to be sexual.
     When he began rubbing his genitals against the table, both women fled the room, although Alvarez initially pushed Mayr back onto the exam table when she tried to leave, according to court records.
     Mayr sued Alvarez for assault and battery in 2009, also claiming negligent hiring and supervision on the part of Family Practice of Kingston. Alvarez argued that he was having a seizure in the exam room, claiming that a neurologist had diagnosed him with a seizure disorder after the incident.
     The New York Supreme Court dismissed the case but its third department appellate division reversed July 9, ruling that Alvarez should not have been granted summary judgment.
     “Both [Mayr and her daughter] observed what they believed to be deliberate behavior on the part of Alvarez, such as shoving plaintiff back onto the examination table as she attempted to get up and turning to watch her daughter as she left the room to get help,” Justice Eugene Devine wrote for a four-justice panel. “It is also worthy of note that Alvarez attempted to contact plaintiff on several occasions after the incident and, while he apologized for the incident, he never expressed his belief that it had been caused by a seizure.”
     The judge added that even if Alvarez was having a seizure, he should not prevail. Devine noted that Alvarez had not regularly taken anti-seizure medication that he got from a Haitian doctor after Alvarez had been involved in two car accidents before the incident with Mayrs.
     “This proof permits the inference that Alvarez was aware that he suffered from a seizure disorder at the time the incident occurred that would, in turn, call into question his failure to take the medication on a regular basis,” Devine wrote.

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