Harrington v. St. Mary's Hospital

—Judgment unanimously affirmed without costs. Memorandum: Plaintiff appeals from a judgment dismissing the complaint against defendants St. Mary’s Hospital and Maureen Gardner, R.N. following a jury verdict of no cause of action. We reject plaintiff’s contention that Supreme Court erred in submitting the case to the jury on the theory of medical malpractice rather than ordinary negligence. Plaintiff was a patient in the brain injury rehabilitation program at defendant hospital, having suffered a stroke that left him partially paralyzed. Gardner, a nurse at the hospital, was charged with monitoring the condition of plaintiff and assessing his abilities and need for supervision. On April 10, 1993 Gardner assisted plaintiff to a bedside commode, and then stood outside the room to give him privacy. Moments later, Gardner heard plaintiff fall and, upon entering the room, found him lying on the floor in a convulsion. Plaintiff commenced this action seeking damages for the injuries that he sustained when he fell. Although the complaint alleged that Gardner was negligent in leaving plaintiff unattended and without assistance, the court properly determined that the action sounds in medical malpractice, “[finasmuch as the essence of plaintiff[’s] allegations here is that an improper assessment of the patient’s condition and the degree of supervision required * * * led to the subject injuries” (Fox v White Plains Med. Ctr., 125 AD2d 538; see, Brath v Kenmore Mercy Hosp., 198 AD2d 771; Raus v White Plains Hosp., 156 AD2d 354). Plaintiff’s contention that the court’s malpractice charge was erroneous is not preserved for our review (see, CPLR 4110-b). Finally, plaintiff contends that the court erred in granting 913 the motion of defendant Stephen F. Levinson, M.D. for a trial order of dismissal at the close of plaintiffs case. Dr. Levinson, however, is not a party to this appeal, and plaintiffs separate appeal from the order and judgment entered in Dr. Levinson’s favor was dismissed on August 18, 1999. (Appeal from Judgment of Supreme Court, Monroe County, Fisher, J.— Negligence.) Present — Green, J. P., Wisner, Scudder, Burns and Lawton, JJ.