Rabinovich v. Maimonides Med. Ctr.

• Decision Date: 04 December 2019
• Docket Number: Index No. 518007/17,2019-00565
• Citation: 179 A.D.3d 88,113 N.Y.S.3d 198
• Parties: Deborah RABINOVICH, Respondent, v. MAIMONIDES MEDICAL CENTER, Appellant.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 88

113 N.Y.S.3d 198

Deborah RABINOVICH, Respondent,

v.MAIMONIDES MEDICAL CENTER, Appellant.

2019-00565

Index No. 518007/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 18, 2019

December 4, 2019

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Judy C. Selmeci of counsel), for appellant.

Ancona Associates (Thomas Torto, New York, NY, of counsel), for respondent.

MARK C. DILLON, J.P., JEFFREY A. COHEN, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

OPINION & ORDER

DILLON, J.P.

This appeal involves the difference between ordinary negligence and medical malpractice, and the effect of that difference upon the obligations of attorneys under CPLR 3012–a. Also, where a certificate of merit is not provided for an action sounding in medical malpractice, we address how noncompliance with CPLR 3012–a should be remedied.

I. Relevant Facts

On August 13, 2015, the plaintiff donated blood at the defendant's blood donation center in Brooklyn. After leaving the donation center, the plaintiff allegedly had an adverse reaction which caused her to lose consciousness, fall down, and sustain injuries.

On September 18, 2017, the plaintiff commenced this action against the defendant by the e-filing of a summons with notice. The defendant appeared in the action and demanded service of a complaint. The plaintiff served a complaint which described the defendant's alleged negligence with some degree of detail. The defendant interposed an answer to the complaint and asserted 10 affirmative defenses, the 8th of which was that the action should be dismissed for the plaintiff's failure to file a certificate of merit as required by CPLR 3012–a.

Discovery was exchanged between the parties and a bill of particulars was served. Paragraph 3 of the bill of particulars tracked paragraph 20 of the complaint almost word-for-word in describing the defendant's alleged negligence. Specifically, the plaintiff alleged that the defendant was negligent for, inter alia, failing to follow New York State protocols for reducing adverse reactions of blood donors; failing to follow standardized procedures for screening the plaintiff for health problems; failing to take the plaintiff's medical history; failing to give a complete medical examination before blood was drawn; failing to measure the plaintiff's hemoglobin levels; and failing to recognize the predictors of the plaintiff's reaction to the procedure.

On September 24, 2018, the defendant moved pursuant to CPLR 3012–a(a)(1) to dismiss the complaint because it was not accompanied by a certificate of merit as required for actions sounding in medical malpractice. The defendant highlighted the medical nature of many of the allegations set forth in the complaint and bill of particulars, arguing that medical expertise was required to determine whether the defendant's treatment fell within the relevant standard of care. The defendant argued that since the action implicated medical expertise, the plaintiff's failure to provide a certificate of merit required dismissal of the complaint under CPLR 3012–a.

In opposition, the plaintiff maintained that no certificate of merit was required as the allegations in the complaint were in the nature of ordinary negligence and not medical malpractice. The plaintiff also argued that since the plaintiff's interaction was solely with a hospital employee, as inferentially distinguished from a medical doctor, the principles of medical malpractice, including the requirements of CPLR 3012–a, do not apply to the action.

In the order appealed from, the Supreme Court denied the defendant's motion to dismiss the complaint, finding that "[n]o certificate of merit [was] needed as [the] complaint sounds in simple negligence." We disagree that the action involves only simple negligence. However, the appropriate remedy for failing to file a certificate of merit is not dismissal of the complaint, as requested by the defendant, but an extension of time for the plaintiff to comply with the mandates of CPLR 3012–a.

II. The Requirements and Purpose of CPLR 3012–a

CPLR 3012–a(a)(1) provides that, in any action for medical, dental, or podiatric malpractice, the complaint shall be accompanied by a certificate executed by the plaintiff's attorney declaring that the attorney has reviewed the facts of the case and consulted with at least one licensed physician, dentist, or podiatrist whom the attorney believes to be knowledgeable about the relevant issues of the action, and that as a result of such review and consultation, the attorney has concluded that the action has a reasonable basis. The purpose behind CPLR 3012–a, as stated when the statute was enacted in 1986, is to deter the commencement of frivolous actions by counsel on behalf of their clients, and to thereby reduce the cost of medical malpractice litigation and medical malpractice insurance premiums (see Mem. of State Exec. Dept., 1985 McKinney's Session Laws of N.Y. at 3022–3027; Tewari v. Tsoutsouras , 75 N.Y.2d 1, 6, 550 N.Y.S.2d 572, 549 N.E.2d 1143 ; Sisario v. Amsterdam Mem. Hosp. , 159 A.D.2d 843, 844, 552 N.Y.S.2d 989 ; Mercado v. Schwartz , 63 Misc.3d 362, 378, 92 N.Y.S.3d 582 [Sup. Ct., Suffolk County] ; Djeddah v. Williams , 24 Misc.3d 1234[A], 2009 N.Y. Slip Op. 51751[U], *2, 2009 WL 2462646 [Sup. Ct., N.Y. County] ; Harmon v. Huntington Hosp. , 163 Misc.2d 150, 151, 619 N.Y.S.2d 492 [Sup. Ct., N.Y. County] ).

There are a limited number of circumstances where an attorney may escape certain requirements of CPLR 3012–a, such as when the attorney is unable to obtain the required medical, dental, or podiatric consultation prior to the expiration of the statute of limitations. Under such circumstances, a certificate of merit shall be filed within 90 days after service of the complaint (see CPLR 3012–a[a][2] ). Where a plaintiff's attorney has made three separate good faith attempts to consult with three different physicians, dentists, or podiatrists, but is rebuffed each time, then the certificate executed by the attorney must set forth these facts (see CPLR 3012–a[a][3] ). When a plaintiff's attorney files a certificate with the complaint indicating the intention to rely solely upon the doctrine of res ipsa loquitur for establishing liability, no certificate of merit is required (see CPLR 3012–a[c] ). Further accommodations are provided to the plaintiff's attorney if a request has been made for the plaintiff's medical or dental treatment records, and the records have not been produced. Under such circumstance, the certificate of merit need not be served until 90 days after the records have been produced (see CPLR 3012–a[d] ). Pro se plaintiffs who commence medical malpractice actions are not bound by the statute at all, since the aim of the statute is to prevent the filing of frivolous actions by attorneys (see CPLR 3012–a[f] ; Djeddah v. Williams , 24 Misc.3d 1234[A], 2009 N.Y. Slip Op. 51751[U], *2 ; Harmon v. Huntington Hosp. , 163 Misc.2d at 151, 619 N.Y.S.2d 492 ).

The mechanics of CPLR 3012–a are not complicated, and the physician, dentist, or podiatrist consulted by the plaintiff's attorney need not be the same person that the attorney may later disclose and use as an expert witness in the litigation. The relative simplicity of the statute may explain why the volume of case law generated in connection with CPLR 3012–a is limited.

Of course, if an action involves ordinary negligence rather than medical, dental, or podiatric malpractice, as claimed by the plaintiff here, the requirements of CPLR 3012–a have no application at all (see Mancuso v. Kaleida Health, 100 A.D.3d 1468, 954 N.Y.S.2d 313 ).

III. Whether the Plaintiff's Allegations Sound in Ordinary Negligence or Medical Malpractice

"[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and ‘no rigid analytical line separates the two’ " ( Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 787, 650 N.Y.S.2d 629, 673 N.E.2d 914, quoting Scott v. Uljanov, 74 N.Y.2d 673, 674, 543 N.Y.S.2d 369, 541 N.E.2d 398 ; see Martuscello v. Jensen, 134 A.D.3d 4, 10, 18 N.Y.S.3d 463 ). In distinguishing whether conduct should be deemed medical malpractice or ordinary negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached (see Jeter v. New York Presbyt. Hosp., 172 A.D.3d 1338, 1339, 101 N.Y.S.3d 411 ; Pacio v. Franklin Hosp., 63 A.D.3d 1130, 882 N.Y.S.2d 247 ). "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 the facts" ( Jeter v. New York Presbyt. Hosp., 172 A.D.3d at 139, 98 N.Y.S.3d 185 [internal quotation marks omitted]; see Friedmann v. New York Hosp.-Cornell Med. Ctr., 65 A.D.3d 850, 858, 884 N.Y.S.2d 733 ; Halas v. Parkway Hosp., 158 A.D.2d 516, 516–517, 551 N.Y.S.2d 279 ; Miller v. Albany Med. Ctr. Hosp., 95 A.D.2d 977, 978, 464 N.Y.S.2d 297 ). Thus, an action sounds in ordinary negligence when jurors can utilize their common everyday experiences to determine the allegations of a lack of due care (see Jeter v. New York Presbyt. Hosp., 172 A.D.3d at 1339, 101 N.Y.S.3d 411 ; Reardon v. Presbyterian Hosp. in City of N.Y., 292 A.D.2d 235, 237, 739 N.Y.S.2d 65 ). In contrast, an action sounds in medical malpractice where the determination involves a consideration of professional skill and judgment (see Weiner v. Lenox Hill Hosp., 88 N.Y.2d at 788, 650 N.Y.S.2d 629, 673 N.E.2d 914 ; Bleiler v. Bodnar, 65 N.Y.2d 65, 72, 489 N.Y.S.2d 885, 479 N.E.2d 230 ; Rey v. Park View Nursing Home, 262 A.D.2d 624, 626–627, 692 N.Y.S.2d 686 ; Payette v. Rockefeller Univ., 220 A.D.2d 69, 71–72, 643 N.Y.S.2d 79 ; Halas v. Parkway Hosp., ...