| D'Elia v Menorah Home & Hosp. for the Aged & Infirm |
| 2008 NY Slip Op 04644 [51 AD3d 848] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Eileen D'Elia, Appellant, v Menorah Home and Hospitalfor the Aged and Infirm, Respondent. |
—[*1] Ptashnik & Associates, New York, N.Y. (Neil Ptashnik and Marissa Basek of counsel), forrespondent.
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiff appealsfrom an order of the Supreme Court, Kings County (Balter, J.), dated August 15, 2006, whichdenied her motion, in effect, for summary judgment on the issue of liability, and granted thedefendant's cross motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's cross motion which was for summary judgment dismissing the firstcause of action insofar as it is based on a claim of ordinary negligence involving the defendant'salleged failure to use any available safety devices or tools to protect the decedent from the risk offalls during a stated five-hour period and substituting therefor a provision denying that branch ofthe defendant's cross motion; as so modified, the order is affirmed, without costs ordisbursements.
The plaintiff's decedent was 91 years old and suffering from serious medical conditions,including congestive heart failure, when she was admitted to the defendant Menorah Home andHospital for the Aged and Infirm (hereinafter Menorah Home) in September 2003. Her daughtersvisited regularly and, during the last weeks of her life, hired a companion to spend the day withher and night assistants to stay with her through the night in case she needed anything. After thedecedent fell once in February 2004 while trying to go to the bathroom without assistance,Menorah Home identified her as being at risk for falls.
On the evening of March 27, 2004 one of the decedent's daughters decided to spend the [*2]night with her mother, rather than hiring an attendant, but wasdirected by Menorah Home staff to leave at about 2:00 o'clock the next morning. After receivingassurances that they would give her mother special care, she left. About five hours later, thedecedent's roommate discovered her lying on the floor in the middle of the room, where sheapparently had fallen while trying to reach the bathroom without assistance. She was transferredto a hospital where she was found to have a broken left hip, and died later that day of renal andheart failure.
The plaintiff, as administrator of the decedent's estate, commenced this action alleging, interalia, that Menorah Home negligently permitted the decedent to remain unattended in a bedwithout restraints or other devices to prevent her from falling out of her bed, and that the fallresulted in injuries that caused or hastened her death. Following discovery, the plaintiff moved,in effect, for summary judgment on the issue of liability and Menorah Home cross-moved forsummary judgment dismissing the complaint, relying on the affirmation of an expert in geriatriccare who opined, among other things, that Menorah Home did not deviate from the professionalstandard of care in not using restraints, and did not cause the decedent's death or any other injury.The plaintiff did not submit an expert affidavit, but relied on the deposition testimony ofMenorah Home's supervising nurse that a range of tools less invasive than restraints is availableto safeguard a patient at risk for falls and can be directed without a physician's approval, but thatnone had been used to protect the decedent. The Supreme Court, finding that the negligenceclaim sounds in medical malpractice, dismissed the first cause of action in its entirety because theplaintiff had not submitted expert testimony opining that Menorah Home had deviated from theaccepted standard of care.
Since "medical malpractice is simply a form of negligence, no rigid analytical line separatesthe two" (Scott v Uljanov, 74 NY2d 673, 674 [1989]; see Weiner v Lenox Hill Hosp.,88 NY2d 784, 787-788 [1996]). A hospital or medical facility has a general duty to exercisereasonable care and diligence in safeguarding a patient, based in part on the capacity of thepatient to provide for his or her own safety (see Hendrickson v Hodkin, 276 NY 252,258-259 [1937]; Papa v Brunswick Gen. Hosp., 132 AD2d 601, 603 [1987]). "Thedistinction between ordinary negligence and malpractice turns on whether the acts or omissionscomplained of involve a matter of medical science or art requiring special skills not ordinarilypossessed by lay persons or whether the conduct complained of can instead be assessed on thebasis of the common everyday experience of the trier of the facts" (Miller v Albany Med. Ctr.Hosp., 95 AD2d 977, 978 [1983]; see Halas v Parkway Hosp., 158 AD2d 516,516-517 [1990]).
Generally, a claim will be deemed to sound in medical malpractice "when the challengedconduct 'constitutes medical treatment or bears a substantial relationship to the rendition ofmedical treatment by a licensed physician' " (Weiner v Lenox Hill Hosp., 88 NY2d at788; see Bleiler v Bodnar, 65 NY2d 65, 72 [1985]; Rey v Park View Nursing Home,262 AD2d 624, 626-627 [1999]; Payette v Rockefeller Univ., 220 AD2d 69, 71-72[1996]; Halas v Parkway Hosp., 158 AD2d 516 [1990]). Thus, when the complaintchallenges the medical facility's performance of functions that are "an integral part of the processof rendering medical treatment" and diagnosis to a patient, such as taking a medical history anddetermining the need for restraints, it sounds in medical malpractice (Scott v Uljanov, 74NY2d at 675; see Caso v St. FrancisHosp., 34 AD3d 714, 714-715 [2006]; Rey v Park View Nursing Home, 262AD2d at 626-627; Smee v Sisters of Charity Hosp. of Buffalo, 210 AD2d 966, 967[1994]; Fox v White Plains Med. Ctr., 125 AD2d 538 [1986]). By contrast, when the"gravamen of the action concerns the alleged failure to exercise ordinary and reasonable care toinsure that no unnecessary harm befell the patient," the claim sounds in ordinary negligence(Papa v Brunswick Gen. Hosp., 132 AD2d 601, 603 [1987]; see Weiner v Lenox HillHosp., 88 NY2d at 788; Edson v Community Gen. Hosp. of Greater Syracuse, 289AD2d 973 [2001]; Halas v Parkway Hosp., 158 AD2d 516 [1990]).
In this case, the first cause of action based on negligence encompasses allegations of medicalmalpractice and ordinary negligence. Menorah Home established its prima facie entitlement to[*3]summary judgment with respect to the specific allegationssounding in medical malpractice, with an expert's affidavit opining that the decedent was gravelyill in the days leading up to her death, and thus was not at "imminent risk" of falling, for whichrestraints would have been medically advised or required. In opposition, the plaintiff failed toraise a triable issue of fact, as she did not submit an expert affidavit opining that Menorah Homedeviated from accepted medical practice by not using restraints (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Vera v Soohoo, 41 AD3d 586, 587 [2007]). Thus, that portion ofthe first cause of action that rests on allegations that Menorah Home's committed medicalmalpractice by failing to use restraints was properly dismissed.
However, to the extent the first cause of action alleges that Menorah Home failed to use anyavailable safety devices or tools to protect the frail, elderly decedent from the risk of falls duringthe five hours that her daughters and private caretakers were not present, that portion of the firstcause of action sounds in ordinary negligence, as it does not involve specialized knowledge ofmedical science or diagnosis and instead seeks to hold Menorah Home liable for failing "toexercise reasonable care to insure that no unnecessary harm befell the patient" (Papa vBrunswick Gen. Hosp., 132 AD2d at 603; see Edson v Community Gen. Hosp. ofGreater Syracuse, 289 AD2d 973, 974 [2001]; Halas v Parkway Hosp., 158 AD2d at516-517; Papa v Brunswick Gen. Hosp., 132 AD2d 601 [1987]; White v SheehanMem. Hosp., 119 AD2d 989 [1986]). In opposition to Menorah Home's prima facie showingthat it exercised reasonable care in supervising the decedent, the plaintiff submitted evidence,including the supervising nurse's deposition testimony, sufficient to raise a question of fact as towhether Menorah Home negligently failed to implement available precautions to protect thedecedent from a foreseeable risk of falling. Thus, Menorah Home was not entitled to summaryjudgment dismissing the first cause of action in its entirety.
The plaintiff's remaining contentions are without merit. Lifson, J.P., McCarthy and Eng, JJ.,concur.
Covello, J. (dissenting and voting to affirm the order, with the following memorandum, inwhich Angiolillo, J., concurs): Although couched in terms of negligence, the first cause of actionis, in actuality, a cause of action to recover damages for medical malpractice. Since the defendant(hereinafter Menorah Home) was entitled to summary judgment dismissing that cause of actionin its entirety, I must respectfully dissent.
When misfeasance occurring within the context of a physician-patient relationship causesinjury to the patient, a cause of action to recover damages for that injury sounds in medicalmalpractice when "the challenged conduct 'constitutes medical treatment or bears a substantialrelationship to the rendition of medical treatment by a licensed physician' " (Weiner v LenoxHill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler v Bodnar, 65 NY2d 65, 73[1985]). A medical facility's assessment of a patient's "supervisory and treatment needs"constitutes "an integral part of the process of rendering medical treatment to" the patient(Scott v Uljanov, 74 NY2d 673, 675 [1989]). Therefore, when a plaintiff challenges amedical facility's assessment of a patient's supervisory or treatment needs, the plaintiff's claimsounds in medical malpractice (see Scott v Uljanov, 74 NY2d at 675).
As evident from the allegations in support of the first cause of action, the bill of particulars,and the arguments she raised before the Supreme Court and on appeal, the essence of theplaintiff's claim is that Menorah Home's staff improperly assessed the decedent's supervisory andtreatment [*4]needs. The plaintiff notes that Menorah Home'srecords reflect that approximately six weeks before the second fall, the decedent fell whenattempting to walk to the bathroom. The plaintiff also notes that those records reflect that a fewdays before the second fall, the decedent had trouble balancing when standing. Yet, as theplaintiff emphasizes, Menorah Home's staff, despite being aware of all of this, neverimplemented any precautionary measures designed to prevent the decedent from getting out ofbed and falling.
Hence, Menorah Home's staff's assessment of the decedent's supervisory and treatmentneeds, which is what led to the absence of restraints, safety devices, and supervision at the timeof the second fall, is "the challenged conduct" (Weiner v Lenox Hill Hosp., 88 NY2d at788). Accordingly, the first cause of action sounds in medical malpractice (see Scott vUljanov, 74 NY2d at 675; Caso vSt. Francis Hosp., 34 AD3d 714, 715 [2006]; Rey v Park View Nursing Home,262 AD2d 624, 626 [1999]; Smee v Sisters of Charity Hosp. of Buffalo, 210 AD2d966, 967 [1994]; Brath v Kenmore Mercy Hosp., 198 AD2d 771 [1993]; Raus vWhite Plains Hosp., 156 AD2d 354, 354-355 [1989]; Fox v White Plains Med. Ctr.,125 AD2d 538 [1986]; cf. Chaff v Parkway Hosp., 205 AD2d 571 [1994]; Lennyv Loehmann, 78 AD2d 813, 814 [1980]).
It should be noted, though, that a case involving a patient falling in a medical facility doesnot necessarily involve a challenge to an assessment of the patient's supervisory and treatmentneeds. In Edson v Community Gen. Hosp. of Greater Syracuse (289 AD2d 973, 974[2001]), Halas v Parkway Hosp. (158 AD2d 516, 517-518 [1990]), Papa v BrunswickGen. Hosp. (132 AD2d 601 [1987]) and White v Sheehan Mem. Hosp. (119 AD2d989 [1986]), cited by the majority in support of its determination that a claim of negligence isinvolved here, and Reardon v Presbyterian Hosp. in City of N.Y. (292 AD2d 235, 237[2002]), patients fell in medical facilities. In each case, the courts, in holding that the plaintiff'sclaim sounded in negligence, determined that under the particular circumstances presented, thedefendant's alleged misfeasance did not relate to medical treatment (see Reardon vPresbyterian Hosp. in City of N.Y., 292 AD2d at 237; Edson v Community Gen. Hosp.of Greater Syracuse, 289 AD2d at 974; Halas v Parkway Hosp., 158 AD2d at 517;Papa v Brunswick Gen. Hosp., 132 AD2d at 603; White v Sheehan Mem. Hosp.,119 AD2d at 989). However, as discussed, supra, under the particular circumstancespresented here, the alleged misfeasance clearly relates to an assessment of a patient's treatmentand supervisory needs, and hence, medical treatment (see Scott v Uljanov, 74 NY2d at675).
Since the first cause of action sounded in medical malpractice, on its motion for summaryjudgment, Menorah Home had the burden of establishing, through a medical expert's affidavit oraffirmation, that its staff did not depart from accepted medical practice, or that if there was adeparture, the decedent was not injured thereby (see Rebozo v Wilen, 41 AD3d 457, 458 [2007]; Thompson v Orner, 36 AD3d 791,792 [2007]; Williams v Sahay, 12AD3d 366, 368 [2004]). In this regard, Menorah Home provided an affidavit from a medicalexpert, who reviewed the decedent's medical and Menorah Home records. After recounting howthe decedent's health declined so precipitously in the days preceding the second fall that at thetime of that fall "it was reasonable to believe that she could not move enough to fall from bed,"Menorah Home's expert essentially opined that Menorah Home's staff did not depart fromaccepted medical practice in assessing the decedent's supervisory and treatment needs. MenorahHome therefore demonstrated its prima facie entitlement to judgment as a matter of law withrespect to the first cause of action. Since, in opposition, the plaintiff failed to provide anyaffidavit or affirmation from a medical expert to rebut Menorah Home's expert's opinion,Menorah Home was entitled to summary judgment dismissing the first cause of action (seeSpicer v Community Family Planning Council Health Ctr., 272 AD2d 317, 317-318 [2000];Damen v North Shore Univ. Hosp., 262 AD2d 598, 598-599 [1999]; Orr v Meisel,248 AD2d 451, [*5]451-452 [1998]; Schaefer vMarchiano, 193 AD2d 664 [1993]).
The majority, concluding that the first cause of action is partially predicated upon a claim ofnegligence, holds that Menorah Home was not entitled to summary judgment dismissing thatclaim in its entirety. In reaching the conclusion that a claim of negligence is being asserted, themajority relies upon the proposition that " '[t]he distinction between ordinary negligence andmalpractice turns on whether the acts or omissions complained of involve a matter of medicalscience or art requiring special skills not ordinarily possessed by lay persons or whether theconduct complained of can instead be assessed on the basis of the common everyday experienceof the trier of the facts' " (Halas v Parkway Hosp., 158 AD2d 516, 516-517 [1990];Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978 [1983]). However, this is not thetest to determine whether challenged conduct constitutes medical malpractice or negligence(see Weiner v Lenox Hill Hosp., 88 NY2d at 788-789; Rodriguez v Saal, 43 AD3d 272,275-276 [2007]; Payette v Rockefeller Univ., 220 AD2d 69, 73-74 [1996]; Stanley vLebetkin, 123 AD2d 854 [1986]). Rather, the test is that repeatedly set forth by the Court ofAppeals—a claim sounds in medical malpractice, and not negligence, when the challengedconduct constitutes medical treatment or bears a substantial relationship to the rendition ofmedical treatment by a licensed physician (see Weiner v Lenox Hill Hosp., 88 NY2d at788; Scott v Uljanov, 74 NY2d at 674-675; Bleiler v Bodnar, 65 NY2d at 72).This question, and not the question of whether expert testimony is needed to establish the allegedmisfeasance, is the "determinative" (Weiner v Lenox Hill Hosp., 88 NY2d at 788) or"critical" question (Caso v St. Francis Hosp., 34 AD3d at 714-715; Mendelson vClarkstown Med. Assoc., 271 AD2d 584 [2000]; Lippert v Yambo, 267 AD2d 433[1999]; Chaff v Parkway Hosp., 205 AD2d at 572; Stanley v Lebetkin, 123 AD2d854 [1986]).
To illustrate, in Scott v Uljanov (74 NY2d at 674-675), the plaintiff, who was 46years old, presented himself at a hospital's emergency room with a .29 blood alcohol level. Hewas placed in a hospital bed with the side rails up (see Scott v Uljanov, 74 NY2d at 674).His mother was seated alongside his bed (see Scott v Uljanov, 74 NY2d at 674).Approximately 30 minutes after being placed in the bed, he climbed over its end, fell, and cut hishead (see Scott v Uljanov, 74 NY2d at 674). He then commenced an action against thehospital, setting forth a cause of action in which he alleged that he was "negligently supervised"while in the bed (Scott v Uljanov, 74 NY2d at 674). Although it might seem that a jurorcould rely upon his or her common everyday experience to determine whether a "highlyintoxicated" patient needs more than bed rails flipped up and supervision from a parent in orderto be protected from a fall, the Court of Appeals, in determining that the plaintiff's cause ofaction sounded in medical malpractice rather than negligence, did not consider this (see Scottv Uljanov, 74 NY2d at 674). Rather, the Court focused on the fact that the plaintiff waschallenging the hospital's staff's assessment of his supervisory and treatment needs (see Scottv Uljanov, 74 NY2d at 674).
The majority also essentially concludes that the question of whether safety devices or toolsneeded to be implemented in the five-hour period preceding the second fall in order to protect thedecedent from falling does not involve specialized knowledge or medical science or diagnosis,and can be assessed by a lay person based on his or her common everyday experience. As justdiscussed, though, even if this is the case, this does not necessarily mean that a claim ofnegligence is involved (see Weiner v Lenox Hill Hosp., 88 NY2d at 788-789;Rodriguez v Saal, 43 AD3d at 275-276; Payette v Rockefeller Univ., 220 AD2dat 73-74; Stanley v Lebetkin,123 AD2d 854 [1986]). In any event, the question doesindeed involve specialized knowledge or medical science or diagnosis, and cannot be assessed bya lay person based on his or her common everyday experience (cf. Hranek v United Methodist Homes ofWyo. Conference, 27 AD3d 879, 880-881 [2006]; Yamin v Baghel, 284 AD2d778, 778-780 [2001]). This is evidenced by the fact that Menorah Home's staff would onlyimplement safety devices and tools in an effort to protect residents against falls after the residentwas "assess[ed]" to determine whether he or she was "a high risk for falls," and the resident's"committee," which consisted of the resident's physician and other medical professionals,decided that safety devices or tools were "needed." This is also evidenced by the supervisingnurse's response to the question of whether the decedent was at risk of falling out of bed at thetime of the first fall, which demonstrates that a degree of medical expertise is necessary for oneto intelligently answer the question of whether safety devices or tools are necessary to guardagainst falls: "[A]bsolutely not . . . [The decedent] was cognitively intact, alert,oriented times three. She ambulated, her gait was steady with her walker and she always got inand out of bed in a safe manner."
In light of the foregoing, the Supreme Court correctly awarded Menorah Home summaryjudgment dismissing the first cause of action in its entirety. Since the plaintiff's remainingcontentions are without merit, the Supreme Court's order should be affirmed.