Plaintiff Not Required To Submit Expert Affidavit To Defeat Defendant Nursing Home's Motion For Summary Judgment As Plaintiff's Complaint Sounds In Ordinary Negligence And Not Malpractice
December, 2008
In D’Elia v. Menorah Home and Hospital for the Aged and Infirm, 151 A.D.3d 848, 859 N.Y.S.2d 224 (2d Dep’t 2008), Plaintiff’s decedent, a ninety one year old woman, was resident at the Defendant nursing home facility. On the evening of March 4, 2007, one of Plaintiff’s decedent’s daughters decided to spend the evening with her mother rather than hire an attendant. Defendant directed the daughter to leave the facility at approximately 2:00 a.m. the next morning after reassuring her that her mother would receive appropriate care. Plaintiff’s decedent was discovered later that morning on the floor in the middle of her room, where she apparently had fallen while trying to reach the bathroom unattended. Plaintiff’s decedent was transferred to a hospital and was diagnosed with a broken hip. She died later that day of renal and heart failure.
The lower court determined that the action sounded in medical malpractice and awarded Defendant summary judgment on the grounds that Plaintiff failed to submit an expert Affidavit in opposition to Defendant’s motion. On appeal, the Second Department reversed, finding that “the gravaman of the action concerns the alleged failure to exercise ordinary and reasonable care to insure that no harm befell” decedent and thus sounded in ordinary negligence, not medical malpractice. D’Elia, 848; see Papa v. Brunswick Gen. Hosp., 132 A.D.2d 601, 517 N.Y.S.2d 762 (2d Dep’t 1987).
The Court noted that a case involving a patient falling in a medical facility does not necessarily involve a challenge to an assessment of the patient’s supervisory and treatment needs. The Court reasoned that patients fall in medical facilities, including nursing homes, and that under the circumstances, Defendant’s alleged misfeasance did not relate to medical treatment. The Court further reasoned that whether a claim sounds in malpractice or ordinary negligence “… 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 fact.” Id. Here, the question as to Defendant’s liability did not involve specialized knowledge of science or diagnosis, and rested with whether or not a layperson could reasonably determine that Defendant was negligent in failing to use any available devices or tools to protect the frail, elderly decedent from the risk of falls after decedent’s daughter left the facility.
In a dissenting opinion, Justice Covello opined that Plaintiff’s claim in this action was that Defendant improperly assessed Plaintiff’s decedent’s supervisory and treatment needs. Justice Covello specifically opined that Defendant’s staff’s assessment of Plaintiff’s decedent’s supervisory and treatment needs, which is what led to Defendant’s failure to use restraints and safety devices and monitor her more closely to prevent her from failing does, indeed, involve specialized knowledge of medical science or diagnosis, and a layperson cannot assess Defendant’s liability “based upon his or her everyday experience.” Id. Justice Covello further stated that this is evidenced by the proof submitted that Defendant’s staff would implement safety devices and tools in an effort to protect residents against falls only after a facility resident was assessed to determine his or her risk factor for falling, which was performed by a resident’s committee consisting of the resident’s physician and other medical professionals. Moreover, Justice Covello referenced the deposition testimony of Defendant’s supervising nurse, who used medical terminology to support her conclusion that restraints, safety devices and/or further supervision were not necessary in this particular case.
The Court, with the exception of Justice Covello, concluded that given their opinion that an assessment of whether or not to use safety devices, restraints, and/or supervision to prevent a resident’s fall in the facility does not require special knowledge or skill, Plaintiff was not required to submit an expert Affidavit in opposition to Defendant’s motion and that Plaintiff submitted sufficient evidence to defeat Defendant’s motion for summary judgment in the lower court.
Learning Point
Not all cases involving the alleged mistreatment of nursing home patients sound in malpractice and require a party to submit an affidavit prepared by an expert in order to win or defeat a motion for summary judgment. Rather, cases concerning ordinary day to day accidents, such as slipping and falling, do not require a person with a degree of specialized skill to make a determination as to whether or not a defendant was negligent. Cases involving the medical care and treatment of residents do, however, require an affidavit of merit from a physician. Nursing homes should be aware that they are liable for claims sounding in both malpractice and ordinary negligence, and should take proper precautions to ensure the safety of their elderly patients.
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