Alaggia v. North Shore University Hosp.

• Decision Date: 07 February 1983
• Citation: 92 A.D.2d 532,459 N.Y.S.2d 96
• Parties: Maria ALAGGIA, et al., Respondents-Appellants, v. NORTH SHORE UNIVERSITY HOSPITAL, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 96

459 N.Y.S.2d 96

92 A.D.2d 532

Maria ALAGGIA, et al., Respondents-Appellants, v. NORTH SHORE UNIVERSITY HOSPITAL, Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

Feb. 7, 1983.

Bower & Gardner, New York City (Steven J. Ahmuty, Jr., New York City, of counsel), for appellant-respondent.

Jesse C. Sable, P.C., New York City (Jill M.M. Gallet, New York City, of counsel), for respondents-appellants.

Before LAZER, J.P., and GIBBONS, O'CONNOR and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action to recover damages for personal injuries, etc., defendant appeals from a judgment of the Supreme Court, Queens County, entered March 23, 1982, in favor of the plaintiff Maria Alaggia in the principal sum of $50,000 and the plaintiff Alfred Alaggia in the principal sum of $25,000, upon a jury verdict, and plaintiffs purportedly cross-appeal from so much of the same judgment as awarded damages, upon the ground of the inadequacy thereof.

Cross appeal dismissed. The cross appeal was not perfected in accordance with the rules of this court (22 NYCRR 670.8; see Cooper v. Bosse, 85 A.D.2d 616, 617, 444 N.Y.S.2d 955).

Judgment affirmed. Plaintiffs are awarded costs.

This action was commenced, inter alia, to recover damages for injuries sustained by plaintiff Maria Alaggia, who was 83 years old at the time of the incident in question, while she was a patient in the intensive care unit of the defendant hospital. The complaint alleges that she fell from her hospital bed due to the negligence of defendant's employees in failing to raise the siderails of her bed. At the trial, her son testified that he had requested the nursing staff to leave the rails up, that the head nurse assured him that this would be done, that on the date of the incident in question he found his mother missing from her bed, and that a nurse informed him that his mother had fallen from her bed and apologized to him for leaving the siderails down. The patient's medical record reveals a history of mild senility and states that the patient "climbed" out of bed. The record reveals that the word "climbed" was substituted for the word "tumbled" which had been crossed out.

Plaintiffs' expert witness testified that while she was unfamiliar with defendant's rules, it was standard hospital procedure to use siderails in the intensive care unit. The head nurse of the intensive care unit denied that the patient's family told her to keep the siderails up. She also testified that the siderails would be raised if ordered by a physician or if required in the nurse's judgment, and that they would normally be raised for an elderly patient suffering from mild senility. The jury found the hospital negligent and awarded plaintiff Maria Alaggia $50,000 on her claim for personal injuries and $25,000 to her husband Alfred on his derivative claim. On appeal, the hospital asserts that, in the absence of an order by the patient's private physician, it may not be held liable for a failure to use siderails.

While it is well established that hospitals have a duty to exercise reasonable care and diligence in safeguarding a patient (Hendrickson v. Hodkin, 276 N.Y. 252, 11 N.E.2d 899; Horton v. Niagara Falls Mem. Med. Center, 51 A.D.2d 152, 380 N.Y.S.2d 116; Zophy v. State of New York, 27 A.D.2d 414, 279 N.Y.S.2d 918), prior to 1957, charitable hospitals were immune from liability for negligence in the performance of medical acts, including the failure to use siderails (see, e.g., Grace v. Manhattan Eye, Ear & Throat Hosp., 301 N.Y. 660, 93 N.E.2d 926; Ranelli v. Society of New York Hosp., 295 N.Y. 850, 67 N.E.2d 257; Pivar v. Manhattan Gen., 279 App.Div. 522, 110 N.Y.S.2d 786)...