| Pacio v Franklin Hosp. |
| 2009 NY Slip Op 05527 [63 AD3d 1130] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Robert Pacio et al., Appellants, v Franklin Hospital et al.,Defendants, and North Shore University Hospital at Glen Cove,Respondent. |
—[*1] Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Nassau County (Feinman,J.), dated June 10, 2008, as granted that branch of the motion of the defendant North ShoreUniversity Hospital at Glen Cove which was for summary judgment dismissing the first cause ofaction insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 1999 the injured plaintiff Robert Pacio (hereinafter the plaintiff), was in a car accidentwhich left him paralyzed. On December 5, 2003 the plaintiff fell in his home and was admittedto the defendant Franklin Hospital. Upon his discharge from Franklin Hospital on December 13,2003 the plaintiff had pressure ulcers, or bedsores. The plaintiff was readmitted to FranklinHospital on December 16, 2003 and transferred to a nursing home on December 22, 2003. Eightdays later, on December 30, 2003, the plaintiff, suffering from, among other things, shortness ofbreath and pressure ulcers on his sacrum, was transferred from the nursing home to the defendantNorth Shore University Hospital at Glen Cove (hereinafter Glen Cove), where he was treateduntil March 8, 2004. While at Glen Cove, the plaintiff's sacral ulcers worsened, requiringsurgeries, and additional pressure ulcers developed on his heels.
On June 1, 2006 the plaintiffs commenced the instant action against, inter alia, FranklinHospital, alleging causes of action to recover damages for negligence, medical malpractice, andlack of informed consent. In November of 2006, more than 2½ years after the plaintiff wastreated at Glen Cove, the plaintiffs served an amended complaint on Glen Cove, joining it as adefendant. At the close of discovery, Glen Cove moved for summary judgment dismissing thecomplaint insofar as asserted against it, arguing, inter alia, that the plaintiffs' first cause of actionasserting negligence actually sounded in medical malpractice, and therefore the amendedcomplaint, insofar as asserted against it, was time-barred pursuant to CPLR 214-a. In opposition,the plaintiffs did not dispute the dismissal, as time-barred, of their second and third causes ofaction insofar as asserted against Glen [*2]Cove to recoverdamages for medical malpractice and lack of informed consent, respectively, but argued thattheir first cause of action insofar as asserted against Glen Cove alleging negligence was proper,as it alleged that Glen Cove failed to follow its own protocol in caring for the plaintiff's pressureulcers, for which expert testimony was not necessary. In granting that branch of the motion, theSupreme Court noted that although the plaintiffs referred to Glen Cove's failure to follow its own"protocol," "the essence of the [plaintiffs'] allegation is that [Glen Cove], in failing to implementits protocol, failed to properly assess plaintiff's condition and the degree of supervision required.The conduct complained of . . . constitutes an integral part of the process ofrendering medical treatment to the plaintiff." The plaintiffs appeal only the dismissal of their firstcause of action insofar as asserted against Glen Cove, which they allege sounds in negligence tothe extent that it is based on Glen Cove's failure to adhere to its protocol for treatment ofpressure ulcers by "patient care associates" (hereinafter PCAs) and nurses, e.g., bathing,toileting, feeding, turning and positioning, applying skin moisturizers, providing cushions orpads, etc. We affirm the order insofar as appealed from.
In applying the statute of limitations, courts "look to the 'reality' or the 'essence' of the actionand not its form" (Matter of Paver & Wildfoerster [Catholic High SchoolAssn.]), 38 NY2d 669, 674 [1976]). "In that medical malpractice is simply a form ofnegligence, no rigid analytical line separates the two" (Scott v Uljanov, 74 NY2d 673,674 [1989]; see Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996]). Indistinguishing whether conduct may be deemed malpractice or negligence, "[t]he critical factoris the nature of the duty owed to the plaintiff that the defendant is alleged to have breached"(Caso v St. Francis Hosp., 34 AD3d 714, 714 [2006]). Accordingly, a claim sounds inmedical malpractice "when the challenged conduct 'constitutes medical treatment or bears asubstantial relationship to the rendition of medical treatment by a licensed physician' "(Weiner v Lenox Hill Hosp., 88 NY2d at 788, quoting Bleiler v Bodnar, 65NY2d 65, 72 [1985]; see Scott v Uljanov, 74 NY2d at 674; see also Bazakos v Lewis,12 NY3d 631 [2009]). In contrast, a claim sounds in negligence "when 'the gravamen of the complaint is not negligence in furnishing medicaltreatment to a patient, but the hospital's failure in fulfilling a different duty' " (Weiner vLenox Hill Hosp., 88 NY2d at 788, quoting Bleiler v Bodnar, 65 NY2d at 73;see Papa v Brunswick Gen. Hosp., 132 AD2d 601 [1987]; D'Elia v Menorah Home &Hosp. for the Aged & Infirm, 51 AD3d 848 [2008]).
Here, in opposition to Glen Cove's prima facie showing of entitlement to summary judgment,the plaintiffs failed to raise a triable issue of fact. The plaintiffs' reliance on Glen Cove's protocolfor "prediction, prevention, and treatment guidelines" for pressure ulcers (hereinafter theprotocol) is unavailing. The preventive measures in the protocol that the plaintiffs assert GlenCove failed to follow are a component of Glen Cove's comprehensive treatment of patients withpressure ulcers. Specifically, in pertinent part, the protocol sets forth the required competencyand training of registered nurses (hereinafter RNs), licensed practical nurses (hereinafter LPNs),nursing assistants, PCAs, and home health aides, all of whom are required to, inter alia,"[o]bserve and report signs and symptoms of pressure ulcer development," perform "pressurereduction measures, cleaning and treatment" at the direction of RNs, and to collaborate withother staff, i.e., RNs, physicians, LPNs, nursing assistants, physician assistants, nutritionists, andphysical therapists, regarding assessment and plan of care. As preventive measures, the protocollists, among other things, inspection of the skin every shift, use of moisturizers, avoidingmassage over reddened bony prominences, "proper positioning, transferring and turningtechniques," pillows to relieve pressure over bony prominences, and elevating heels off the bed.The protocol also directs proper "tissue load management," which seeks to "create anenvironment that enhances soft tissue viability and promotes healing of the pressure ulcers." Asthe above demonstrates, the subject protocol constitutes a "substantial relationship to therendition of medical treatment" (Bleiler v Bodnar, 65 NY2d at 72; see Scott vUljanov, 74 NY2d at 674-675).
Accordingly, the Supreme Court properly granted that branch of Glen Cove's motion whichwas for summary judgment dismissing the first cause of action insofar as asserted against it onthe ground that it was time-barred pursuant to CPLR 214-a (see Bleiler v Bodnar, 65NY2d 65 [1985]; Ryan v Korn, 57 AD3d 507 [2008]; Meiselman v Fogel, 50AD3d 979 [2008]; Caso v St. Francis Hosp., 34 AD3d 714 [2006]; Gaska v Heller,29 AD3d 945 [2006]; cf. Weiner v Lenox Hill Hosp., 88 NY2d 784 [1996];Ellinghusen v Flushing Hosp. & Med. Ctr., 143 AD2d 217 [1988]).[*3]
In light of our determination, Glen Cove's remainingcontention has been rendered academic. Prudenti, P.J., Miller, Eng and Belen, JJ., concur.