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.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Saxe, Catterson, Moskowitz, DeGrasse, JJ.
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 ). 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 ).
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 ; Papa v Brunswick Gen. Hosp., 132 AD2d 601, 603-604 ).
We have considered Silvercrest's remaining arguments and find them unavailing. All concur except Catterson, J. who dissents in a memorandum as follows:
CATTERSON, J. (dissenting)
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, 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 N.Y. 339, 344, 162 N.E. 99, 100 (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 dinner time 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 3 cm by 3 cm 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 decedent's leg spontaneously ruptured with about 300cc 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 ...