Friedmann v. New York Hospital-Cornell Medical Center

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered July 11, 2005, which, to the extent appealed from, denied the motion of defendant Silvercrest Extended Care Facility (Silvercrest) for summary judgment dismissing the complaint as against it, affirmed, without costs. The right leg of plaintiffs decedent ruptured after it struck a bed rail while aides at Silvercrest were preparing her for dinner and adjusting her bedding. The decedent was bedridden and had fragile skin that was prone to rupture as a result of medications she took for her numerous ailments. The facility also allegedly failed to promptly respond to the decedent’s calls for assistance, and unreasonably delayed in calling 911. The death certificate listed blunt impact trauma to the right lower leg with contusional hematoma complicated by soft tissue disruption and hemorrhage as the cause of death. “An action to recover for personal injuries or wrongful death against a medical practitioner or a medical facility or hospital may be based either on negligence principles or on the more [851] particularized medical malpractice standard” (see Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 [1986]). Simple negligence principles are applicable to those cases where the alleged negligent act may be readily determined by the trier of fact based on common knowledge. However, where the directions given or treatment received by the patient is in issue, consideration of the professional skill and judgment of the practitioner or facility is required and the theory of medical malpractice applies (see Reardon v Presbyterian Hosp. in City of N.Y., 292 AD2d 235, 236-237 [2002]). The motion court properly concluded that the claims against Silvercrest sound in negligence, rather than malpractice, and that there are triable issues of fact warranting the denial of summary judgment. For example, a trier of fact can evaluate, without the benefit of expert testimony, whether allegedly permitting the decedent’s leg to strike the bed rail while she was being prepared for dinner constituted a negligent act; whether the alleged failure to respond to her calls for assistance was negligent under the circumstances; and whether the delay, if any, in calling 911 was negligent (see e.g. Halas v Parkway Hosp., 158 AD2d 516, 517 [1990]; Papa v Brunswick Gen. Hosp., 132 AD2d 601, 603-604 [1987]). We have considered Silvercrest’s remaining arguments and find them unavailing. Concur—Tom, J.P., Saxe, Moskowitz and DeGrasse, JJ.