Glasgow v. Chou
| Decision Date | 31 October 2006 |
| Docket Number | 2005-03075,2004-08600 |
| Citation | 826 N.Y.S.2d 303,33 A.D.3d 959,2006 NY Slip Op 7845 |
| Parties | VALERIE GLASGOW, Appellant, v. MIKE CHOU et al., Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the defendants Mike Chou and Long Island College Hospital, payable by the plaintiff.
The instant action arises out of an operation performed on the plaintiff at Long Island College Hospital (hereinafter the hospital) by Mike Chou, M.D., during which an allograft, later discovered to be contaminated with bacteria, was implanted into the plaintiff's body. The plaintiff commenced this action against, among others, the hospital and Dr. Chou (hereinafter the respondents), alleging that they negligently enabled the allograft to become contaminated. The respondents moved, in effect, pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against them, arguing, inter alia, that the plaintiff should have pleaded a cause of action alleging medical malpractice rather than ordinary negligence. The plaintiff maintained that her allegations sounded in common-law negligence and, in the alternative, cross-moved for leave to amend her complaint to add a cause of action alleging medical malpractice.
In an order dated August 20, 2004, the Supreme Court, inter alia, dismissed the common-law negligence cause of action, finding that the plaintiff's allegations invoked a medical malpractice cause of action rather than ordinary negligence. In the order dated March 3, 2005 the Supreme Court denied the plaintiff's cross motion for leave to amend the complaint.
"The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of facts" (Russo v Shah, 278 AD2d 474, 475 [2000] [internal quotation marks and citations omitted]). "[W]hen the challenged conduct `constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician,'" the claim sounds in medical malpractice rather than simple negligence (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler v Bodnar, 65 NY2d 65,72 [1985]). Here, the plaintiff's claim that the respondents enabled the allograft to become contaminated during the operative procedure sounded in medical malpractice (see Rice v Vandenebossche, 185 AD2d 336, 337-338 [1992]).
The merits of the plaintiff's cross motion for leave to amend the complaint to add a cause of action alleging medical malpractice were supported by, inter alia, an affidavit of a registered nurse, which alleged that the defendants deviated from accepted nursing practice. In the order dated August 20, 2004 the Supreme Court held the plaintiff's cross motion in abeyance for 25 days to...
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