I must dissent. The sole ground alleged on behalf of defendant Caputi’s motion to dismiss plaintiff’s complaint (see, CPLR 3211 [a] [7]) is that there was no physician-patient relationship between the defendant and the injured plaintiff at the time of the alleged medical malpractice. This claim is based upon defendant’s assertion that an examination by a physician at the request of an insurance carrier or workers’ compensation carrier does not constitute examination for treatment and, absent physical injury committed in the performance of the examination, is not enough to form a physician-patient relationship sufficient to support a claim for medical malpractice.
This court specifically rejected an identical claim over six years ago. We stated: "Plaintiffs would have us apply the narrow test of treatment by a physician, or examination for the purposes of treatment, in order to find that a case involves medical malpractice instead of simple negligence. We decline to do so. Such an interpretation is too constricting and fails to recognize the realities of the relationship that arise, however briefly, when a physician is in the process of exercising his profession and utilizing the skills which he has been taught in examining, diagnosing, treating or caring for another person.” (Twitchell v MacKay, 78 AD2d 125, 128.)
Moreover, the fact that a physician’s services are rendered *365gratuitously, or at the request of someone other than the patient, does not eliminate or diminish the physician’s liability (see, DuBois v Decker, 130 NY 325). A physician’s duty extends not only to provide proper treatment but also to make an accurate diagnosis upon which treatment may be based (see, Pike v Honsinger, 155 NY 201, 209).
Mr. LoDico was examined by Dr. Caputi at the request of the State Insurance Fund. Dr. Caputi was directed to examine Mr. LoDico, to obtain his complete medical history, to render an opinion whether he could return to work and to comment on the necessity for further continued treatment. Following an examination and review of the medical records, Dr. Caputi concluded that Mr. LoDico had no evidence of peripheral nerve damage or disease of any type, that he could resume his usual work without restriction and that there was no indication for continued treatment directed toward Mr. LoDico’s neck, back or upper extremities.
In his bill of particulars, however, plaintiff alleged that he suffered a brainstem tumor which existed at the time of Dr. Caputi’s examination and which was not removed until one year following that exam, causing plaintiff to suffer permanent injuries, including damage to cranial nerves, Bell’s palsy and loss of hearing. Plaintiff alleged that Dr. Caputi was negligent in misdiagnosing his true condition and in failing to order proper and complete medical and mechanical tests during the course of the examination. Assuming, as we must, the truth of these allegations (see, Cohn v Lionel Corp., 21 NY2d 559, 562), and recognizing the existence of a physician-patient relationship between Dr. Caputi and Mr. LoDico as we must from the aforementioned language in Twitchell v MacKay (supra), plaintiff’s complaint states a valid cause of action for medical malpractice against Dr. Caputi. Accordingly, Special Term (Lodico v Cohn, 132 Misc 2d 866) properly denied Dr. Caputi’s motion to dismiss the complaint and the order on appeal should be affirmed.
Dillon, P. J., Balio and Davis, JJ., concur with Callahan, J.; Green, J., dissents and votes to affirm in a separate opinion.
Order reversed, on the law, without costs, and motion granted.