D'Elia v. Menorah Home & Hospital for the Aged and Infirm

[849] In an action, inter alia, to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Balter, J.), dated August 15, 2006, which denied her motion, in effect, for summary judgment on the issue of liability, and granted the defendant’s cross motion for summary judgment dismissing the complaint. Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action insofar as it is based on a claim of ordinary negligence involving the defendant’s alleged failure to use any available safety devices or tools to protect the decedent from the risk of falls during a stated five-hour period and substituting therefor a provision denying that branch of the defendant’s cross motion; as so modified, the order is affirmed, without costs or disbursements. The plaintiffs decedent was 91 years old and suffering from serious medical conditions, including congestive heart failure, when she was admitted to the defendant Menorah Home and Hospital for the Aged and Infirm (hereinafter Menorah Home) in September 2003. Her daughters visited regularly and, during the last weeks of her life, hired a companion to spend the day with her and night assistants to stay with her through the night in case she needed anything. After the decedent 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 night with her mother, rather than hiring an attendant, but was directed by Menorah Home staff to leave at about 2:00 o’clock the next morning. After receiving assurances that they would give her mother special care, she left. About five hours later, the decedent’s roommate discovered her lying on the floor in the middle of the room, [850] where she apparently had fallen while trying to reach the bathroom without assistance. She was transferred to a hospital where she was found to have a broken left hip, and died later that day of renal and heart failure. The plaintiff, as administrator of the decedent’s estate, commenced this action alleging, inter alia, that Menorah Home negligently permitted the decedent to remain unattended in a bed without restraints or other devices to prevent her from falling out of her bed, and that the fall resulted 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 for summary judgment dismissing the complaint, relying on the affirmation of an expert in geriatric care who opined, among other things, that Menorah Home did not deviate from the professional standard 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 of Menorah Home’s supervising nurse that a range of tools less invasive than restraints is available to safeguard a patient at risk for falls and can be directed without a physician’s approval, but that none had been used to protect the decedent. The Supreme Court, finding that the negligence claim sounds in medical malpractice, dismissed the first cause of action in its entirety because the plaintiff had not submitted expert testimony opining that Menorah Home had deviated from the accepted standard of care. Since “medical malpractice is simply a form of negligence, no rigid analytical line separates the two” (Scott v Uljanov, 74 NY2d 673, 674 [1989]; see Weiner v Lenox Hill Hosp., 88 NY2d 784, 787-788 [1996]). A hospital or medical facility has a general duty to exercise reasonable care and diligence in safeguarding a patient, based in part on the capacity of the patient 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]). “The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis 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 mal [851] practice “when the challenged conduct ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician’ ” (Weiner v Lenox Hill Hosp., 88 NY2d at 788; see Bleiler v Bodnar, 65 NY2d 65, 72 [1985]; Rey v Park View Nursing Home, 262 AJD2d 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 complaint challenges the medical facility’s performance of functions that are “an integral part of the process of rendering medical treatment” and diagnosis to a patient, such as taking a medical history and determining the need for restraints, it sounds in medical malpractice (Scott v Uljanov, 74 NY2d at 675; see Caso v St. Francis Hosp., 34 AD3d 714, 714-715 [2006]; Rey v Park View Nursing Home, 262 AD2d 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 to insure 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 Hill Hosp., 88 NY2d at 788; Edson v Community Gen. Hosp. of Greater Syracuse, 289 AD2d 973 [2001]; Halas v Parkway Hosp., 158 AD2d 516 [1990]). In this case, the first cause of action based on negligence encompasses allegations of medical malpractice and ordinary negligence. Menorah Home established its prima facie entitlement to summary judgment with respect to the specific allegations sounding in medical malpractice, with an expert’s affidavit opining that the decedent was gravely ill in the days leading up to her death, and thus was not at “imminent risk” of falling, for which restraints would have been medically advised or required. In opposition, the plaintiff failed to raise a triable issue of fact, as she did not submit an expert affidavit opining that Menorah Home deviated from accepted medical practice by not using restraints (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Vera v Soohoo, 41 AD3d 586, 587 [2007]). Thus, that portion of the first cause of action that rests on allegations that Menorah Home’s committed medical malpractice by failing to use restraints was properly dismissed. However, to the extent the first cause of action alleges that Menorah Home failed to use any available safety devices or tools to protect the frail, elderly decedent from the risk of falls during the five hours that her daughters and private caretakers were not present, that portion of the first cause of action sounds in ordinary negligence, as it does not involve specialized knowl [852] edge of medical science or diagnosis and instead seeks to hold Menorah Home liable for failing “to exercise reasonable care to insure that no unnecessary harm befell the patient” (Papa v Brunswick Gen. Hosp., 132 AD2d at 603; see Edson v Community Gen. Hosp. of Greater Syracuse, 289 AD2d 973, 974 [2001]; Halas v Parkway Hosp., 158 AD2d at 516-517; Papa v Brunswick Gen. Hosp., 132 AD2d 601 [1987]; White v Sheehan Mem. Hosp., 119 AD2d 989 [1986]). In opposition to Menorah Home’s prima facie showing that 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 to whether Menorah Home negligently failed to implement available precautions to protect the decedent from a foreseeable risk of falling. Thus, Menorah Home was not entitled to summary judgment dismissing the first cause of action in its entirety. The plaintiff’s remaining contentions are without merit. Lifson, J.E, McCarthy and Eng, JJ., concur.