Chaff v. Parkway Hosp.

• Citation: 613 N.Y.S.2d 237,205 A.D.2d 571
• Parties: Morris CHAFF, as Executor, etc., Appellant, v. PARKWAY HOSPITAL, et al., Respondents.
• Decision Date: 13 June 1994
• Court: New York Supreme Court — Appellate Division

Page 237

613 N.Y.S.2d 237

205 A.D.2d 571

Morris CHAFF, as Executor, etc., Appellant, v. PARKWAY HOSPITAL, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

June 13, 1994.

Norman A. Kaplan, Great Neck (Patricia R. Byrne, of counsel), for appellant.

Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola (Geoffrey H. Pforr, of counsel), for respondent Parkway Hospital.

Fager & Amsler, East Meadow (Joseph Arthur Hanshe, of counsel), for respondent Bernard Pollack.

Before BALLETTA, J.P., and O'BRIEN, RITTER and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, the plaintiff appeals from an order of the Supreme Court, Queens County (Smith, J.), dated July 8, 1992, which granted the separate motions of the defendants to dismiss the complaint as barred by the Statute of Limitations and denied his cross motion for leave to serve an amended complaint.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

On January 2, 1989, Licia Chaff, the decedent, was admitted to Parkway Hospital by a nonparty private physician for the treatment of pulmonary edema, pneumonia, pulmonary embolism , congestive heart failure, atrial fibrillation, staphylococcal bacteremia, urinary tract infection, and deep vein thrombosis. While undergoing an X-ray procedure performed by the codefendant Dr. Bernard Pollack, the decedent sustained a fractured right hip after falling off the examination table. The decedent was discharged from the hospital on February 14, 1989.

On February 28, 1989, the decedent was readmitted to the hospital for treatment of congestive heart failure with pleural effusion, arthrosclerotic heart disease, pneumonia, and chronic obstructive pulmonary disease. On March 14, 1989, a routine request for an X ray, made by the decedent's nonparty treating physician, was made to determine the status of the hip. This X ray was never taken because the decedent died on March 15, 1989.

By complaint dated September 6, 1991, it was alleged that the decedent fell off an examining table on or about January 28, 1989, and suffered a fractured right hip as a result of the reckless indifference and negligence of the defendant hospital and the codefendant Dr. Pollack. It was also alleged that the defendants failed to offer the decedent the degree of care customarily offered to hospital patients under the same or similar circumstances and had ignored and failed to provide for or to attend to the needs of the decedent.

On appeal, the first question to be determined is whether the action sounds in medical malpractice or in simple negligence for purposes of deciding which Statute of Limitations applies. The critical factor is the nature of the duty owed to the decedent which the defendants are alleged to have breached. When the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence (see, Stanley v. Lebetkin, 123 A.D.2d 854, 507 N.Y.S.2d 468). Here, the decedent fell off an examining table while under the supervision of the defendant Dr. Pollack during an X-ray examination. The incident arose out of the physician-patient relationship between the decedent and Dr. Pollack and occurred during the course of a procedure substantially related to medical treatment. Accordingly, the action sounds in medical malpractice for...