Friedmann v. New York Hospital-Cornell Medical Center

• Decision Date: 01 September 2009
• Docket Number: 4870.
• Citation: 2009 NY Slip Op 06362,884 N.Y.S.2d 733,65 A.D.3d 850
• Parties: WILLIAM D. FRIEDMANN, Respondent, v. THE NEW YORK HOSPITAL-CORNELL MEDICAL CENTER et al., Defendants, and SILVERCREST EXTENDED CARE FACILITY, Appellant.
• Court: New York Supreme Court — Appellate Division

65 A.D.3d 850

884 N.Y.S.2d 733

2009 NY Slip Op 06362

WILLIAM D. FRIEDMANN, Respondent, v. THE NEW YORK HOSPITAL-CORNELL MEDICAL CENTER et al., Defendants, and SILVERCREST EXTENDED CARE FACILITY, Appellant.

4870.

Appellate Division of the Supreme Court of New York, First Department.

Decided September 1, 2009.

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 plaintiff's 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 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.

Catterson, J., dissents in a memorandum as follows:

I must respectfully dissent because, in my opinion, basic negligence principles suggest that the plaintiff's claim sounds in medical malpractice not simple negligence, and, in the absence of a physician's affidavit in these circumstances, the complaint should be dismissed. The harm that befell plaintiff's decedent, the rupture of her right leg, and a massive loss of blood resulting in death after her leg was allegedly knocked into a bed rail by an aide, was not foreseeable by the average, reasonably prudent person. In 1928, Chief Judge Cardozo wrote what has become, perhaps, the most-cited phrase in negligence jurisprudence: "[t]he risk reasonably to be perceived defines the duty to be obeyed." (Palsgraf v Long Is. R.R. Co., 248 NY 339, 344 [1928].)

In this case, foreseeability, and thus the duty to exercise reasonable care in order to avoid the harm that, in fact, was sustained required the application of special skills and knowledge of medical science. In my opinion, this clearly removes the action from the realms of simple negligence.

The plaintiff's decedent was a patient in Silvercrest Extended Care Facility (hereinafter referred to as Silvercrest) for three years prior to her death on January 4, 1998. She was diagnosed initially with emphysema, chronic obstructive pulmonary disease, and depression. She was ventilator and steroid dependent. She was admitted in the hope that she could be weaned from the ventilator and returned to her home. Her skin was very fragile, a common side effect of steroids, and she suffered from open wounds on her hip, shoulder and hand. She was also bedridden and needed assistance with daily tasks too difficult for her to accomplish alone because of her condition.

The plaintiff, decedent's husband and the administrator of her estate, testified at deposition that during a visit with his wife on January 3, 1998, he was asked to leave her room around dinnertime so that aides could assist her with her personal hygiene in preparation for dinner. When he returned, she complained that the aides had been "very rough." She said they had hit her lower right leg and hurt it. The plaintiff further testified that subsequently he left to go to dinner with friends but was called by his wife and returned to find a pool of blood on the floor and the bedding soaked with blood.

A Silvercrest accident report from January 3, 1998 stated that at 6:30 P.M., a nurse was called because the plaintiff's decedent was complaining of pain in the right leg. A hematoma of three centimeters by three centimeters was noted. The plaintiff's decedent reported that the pain started after two aides helped her clean up and get ready for dinner.

The report further stated that a physician's assistant was called and noted that the right leg was swollen. He, in turn, called the patient's primary care physician, and while talking to the physician, the plaintiff's decedent's leg spontaneously ruptured with about 300 cubic centimeters of blood loss. The report indicated that an ambulance arrived in about 15 minutes, and that the patient was alert when she was transferred to the hospital where she died later that night. The death certificate listed the cause of death as blunt impact trauma to the right lower leg with a contusional hematoma complicated by soft tissue disruption and hemorrhage.

The plaintiff commenced this action against New York Hospital-Cornell Medical Center, owner and operator of Silvercrest, in March 1999. The complaint alleged that injuries were sustained by the plaintiff's decedent when her right leg ruptured after it was allegedly injured on a bed rail by staff who were helping her get ready for dinner. The complaint also alleged that the plaintiff's decedent was left unattended for a substantial period of time after her leg ruptured resulting in large loss of blood that led to her death.

On May 20, 2003, the plaintiff filed and served a notice of medical malpractice action on counsel for Silvercrest, which stated that counsel consulted with at least one doctor who was knowledgeable of the relevant issues and had concluded on the basis of that review that there was a reasonable basis for the action. On March 28, 2005, Silvercrest moved for summary judgment. It submitted an affidavit of Dr. Joseph A. Buda, a professor of clinical surgery, emeritus, at Columbia University, College of Physicians and Surgeons, in support of the motion. Upon a review of the medical records, the bill of particulars, and other relevant documents, Dr. Buda opined that the injury sustained when the patient's leg hit the rail was not caused by any deviation from accepted standards of care and no act or omission by the staff at Silvercrest caused her death five hours later.

In opposition to the motion, the plaintiff submitted an affirmation of counsel, which stated that there were triable issues of fact concerning the negligence of Silvercrest with respect to whether it provided adequate care in the circumstances, whether there was a long delay in rendering assistance to the plaintiff's decedent, and whether the initial acts of Silvercrest ultimately led to her death. The plaintiff submitted the affidavit of Dr. Alan Lewis Schechter, who opined that the treatment rendered by staff at the hospital to which the plaintiff's decedent was taken from Silvercrest was the direct and proximate cause of the patient's death. The affidavit did not mention Silvercrest.

In a decision dated June 30, 2005, the court noted that the plaintiff had not provided any evidence that raised a triable issue of fact as to whether Silvercrest committed medical malpractice and that if the allegations against Silvercrest sounded in malpractice, the omission would be fatal and the motion would be granted. However, the court denied the motion for summary judgment, holding that the allegations against Silvercrest "do not really involve diagnosis or treatment or the failure to follow a physician's instructions, all situations where malpractice is the issue and where testimony by a medical expert is necessary." Additionally, the court found that the claims did not sound in medical malpractice because Silvercrest is a "residential extended care facility for those unable to reside on their own rather than an exclusively medical facility."

Instead, the court agreed with the plaintiff that the claims against Silvercrest sound in simple negligence. The court held that the claims against Silvercrest were that plaintiff's decedent was injured at the outset by the careless treatment of aides preparing her for dinner, and that subsequently she was left unattended for a substantial period of time while bleeding profusely. The court thus concluded that these were claims of simple negligence that a jury could resolve without the aid of expert testimony.

In my opinion, the motion court erred. I believe its observation that the act complained of was not medical malpractice because it did not really involve diagnosis or treatment does not further the analysis. Moreover, its conclusion that this is not a malpractice action...