Kitt Jeter, appellant, v New York Presbyterian Hospital, respondent.
2016-08843 (Index No. 507229/14)
Appellate Division of the Supreme Court of the State оf New York, Second Department
May 29, 2019
2019 NY Slip Op 04148
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
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.
Decided on May 29, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P. SHERI S. ROMAN JOSEPH J. MALTESE ANGELA G. IANNACCI, JJ.
Kitt Jeter, appellant, v New York Presbyterian Hospital, respondent.
Ugo Uzoh, P.C., Brooklyn, NY (Ugochukwu Uzoh of counsel), for аppellant.
Martin Clearwater & Bell LLP, New York, NY (Barbara D. Goldberg and William P. Brady of counsel), for respondent.
DECISION & ORDER
In an action, inter alia, to recоver damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin Solomon, J.), datеd July 20, 2016. The order granted the defendant‘s motion to compel the plaintiff to provide a certificate of merit pursuant to
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff‘s cross motion which was fоr leave to amend the complaint only to the extent of permitting the plaintiff to add a cause of action alleging medical malpractice, and substituting therefor a provision
After the plaintiff underwent surgery on October 24, 2012, at the defendant hospitаl (hereinafter the hospital), she developed significant memory loss and threatened to leave the hospital on numerous occasions. During her stay at the hospital, based on recommendations by a psychiatrist, the plaintiff was at times placed under one-on-one supervision or in a “cluster room.” The plaintiff went missing from the hospital and allegedly sustained injuries before shе was found five days later.
The plaintiff commenced this action alleging, inter alia, that the hospital was negligent in failing to providе her with the proper care and supervision. The hospital moved to compel the plaintiff to provide a certifiсate of merit pursuant to
The critical factor to be decided here is the nature of the duty owed to the plaintiff that thе hospital is alleged to have breached. A hospital or medical facility has a general duty to exercise reasоnable care and diligence in safeguarding a patient, based in part on the capacity of the patient to prоvide for his or her own safety (see Hendrickson v Hodkin, 276 NY 252, 258-259; Papa v Brunswick Gen. Hosp., 132 AD2d 601, 603). “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” (Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978; see Halas v Parkway Hosp., 158 AD2d 516, 516-517). Generally, a cause of action will be deemed to sound in
Here, we agree with the Supreme Court‘s determination that the complaint containеd allegations of medical malpractice. Contrary to the plaintiff‘s contentions, the allegations at issue essentially challenged the hospital‘s assessment of the plaintiff‘s supervisory and treatment needs (see Scott v Uljanov, 74 NY2d 673). Thus, the conduct at issue derived from the duty owed to the plaintiff as a result of a physician-patient relationship and was substantially related to her medical treatment (see Caso v St. Francis Hosp., 34 AD3d 714; Chaff v Parkway Hosp., 205 AD2d 571, 572). Therefore, we agree with the court‘s determination to grant the hospital‘s motion and to deny that branch of the plaintiff‘s cross motion which was to dismiss the hospital‘s seventh affirmative defense.
However, the Supreme Court should have granted, in its entirety, that branch of the plaintiff‘s cross motion which was for leave to amend the complaint. “Applications for leave to amend pleadings under
The plaintiff‘s remaining contention, that the Supremе Court improperly dismissed her cause of action sounding in ordinary
LEVENTHAL, J.P., ROMAN, MALTESE and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court