| Lipe v Albany Med. Ctr. |
| 2011 NY Slip Op 05171 [85 AD3d 1442] |
| June 16, 2011 |
| Appellate Division, Third Department |
| Sandra Lipe, Respondent, v Albany Medical Center,Appellant. |
—[*1] Grasso, Rodriguez & Grasso, Schenectady (Christopher R. Burke of counsel), forrespondent.
Garry, J. Appeal from that part of an order of the Supreme Court (Kramer, J.), enteredNovember 9, 2010 in Schenectady County, which partially denied defendant's motion forsummary judgment dismissing the complaint.
In February 2006, plaintiff underwent a colonoscopy at defendant, Albany Medical Center,performed under sedation. She suffers from several medical conditions, including multiplesclerosis, and walks with a quad cane. In the recovery area following the procedure, plaintiffallegedly made multiple requests for either a bedpan or assistance in getting to the bathroom, buther requests were ignored. Plaintiff claims that, ultimately, a hospital employee told her wherethe bathroom was, and that she was free to ambulate to it on her own. She left her bed andreached the bathroom, but fell when attempting to exit, striking a garbage can. Defendantdisputes this chronology of events leading to the fall, essentially asserting that plaintiff wasaccompanied to the restroom after an evaluation and physical assessment performed by thehospital nursing staff.
Plaintiff commenced this action in June 2008, with causes of action based in medicalmalpractice, negligence and lack of informed consent. Defendant moved for summary judgmentand Supreme Court granted the application in part, dismissing the medical malpractice and lackof informed consent claims. Defendant now appeals from the order insofar as it denied judgment[*2]dismissing the negligence claim.
Defendant argues that plaintiff's allegations sound in medical malpractice, not negligence,and must be dismissed as plaintiff failed to oppose the summary judgment motion with morethan her attorney's affirmation (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325[1986]; DeLorenzo v St. Clare's Hosp.of Schenectady, N.Y., 69 AD3d 1177, 1179 [2010]). We disagree. It is well recognizedthat while the overall purpose of a hospital is to provide medical treatment, not all negligence inthat setting is necessarily deemed medical malpractice. A medical malpractice claim arises fromconduct that "constitutes medical treatment or bears a substantial relationship to the rendition ofmedical treatment by a licensed physician," whereas a negligence claim arises from "thehospital's failure in fulfilling a different duty" (Weiner v Lenox Hill Hosp., 88 NY2d 784,788 [1996], quoting Bleiler v Bodnar, 65 NY2d 65, 72-73 [1985]). Where a jury candetermine a claim based on common knowledge, it sounds in negligence, unlike a medicalmalpractice claim, which requires expert medical testimony to explain professionaldeterminations (see Lomonaco v UnitedHealth Servs. Hosps., Inc., 16 AD3d 958, 960 [2005]; Smith v Pasquarella, 201AD2d 782, 783 [1994]).
Here, plaintiff has alleged negligent conduct by defendant including "ignoring the plaintiff"and "failing to observe and heed the needs of the plaintiff." Plaintiff's testimony presents a factualissue as to whether she received any assistance or assessment at all, not whether the assessmentwas properly performed (see Reardon v Presbyterian Hosp. in City of N.Y., 292 AD2d235, 237 [2002]). A jury will be required to make the credibility determination concerning thedisputed events leading to plaintiff's fall, but this will not require expert medical testimony.
Mercure, J.P., Spain, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,with costs.