Deborah Rabinovich, respondent, v Maimonides Medical Center, appellant.
2019-00565 (Index No. 518007/17)
Appellate Division of the Supreme Court of the State of New York, Second Department
December 4, 2019
2019 NY Slip Op 08724
DILLON, J.P.; COHEN, BARROS and CONNOLLY, 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.
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JEFFREY A. COHEN
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.
APPEAL by the defendant, in an action to recover damages for medical malpractice, from an order of the Supreme Court (Ellen M. Spodek, J.), dated November 13, 2018, and entered in Kings County. The order denied the defendant‘s motion pursuant to
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, NY (Judy C. Selmeci of counsel), for appellant.
Ancona Associates (Thomas Torto, New York, NY, of counsel), for respondent.
DILLON, J.P.
OPINION & ORDER
This appeal involves the difference between ordinary negligence and medical malpractice, and the effect of that difference upon the obligations of attorneys under
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
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
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
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
II. The Requirements and Purpose of CPLR 3012-a
There are a limited number of circumstances where an attorney may escape certain requirements of
The mechanics of
Of course, if an action involves ordinary negligence rather than medical, dental, or podiatric malpractice, as claimed by the plaintiff here, the requirements of
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 NY2d 784, 787, quoting Scott v Uljanov, 74 NY2d 673, 674; see Martuscello v Jensen, 134 AD3d 4, 10). 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 AD3d 1338, 1339; Pacio v Franklin Hosp., 63 AD3d 1130). “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 AD3d at 1339 [internal quotation marks omitted]; see Friedmann v New York Hosp.-Cornell Med. Ctr., 65 AD3d 850, 858; Halas v Parkway Hosp., 158 AD2d 516, 516-517; Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978). 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 AD3d at 1339; Reardon v Presbyterian Hosp. in City of N.Y., 292 AD2d 235, 237). 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 NY2d at 788; Bleiler v Bodnar, 65 NY2d 65, 72; Rey v Park View Nursing Home, 262 AD2d 624, 626-627; Payette v Rockefeller Univ., 220 AD2d 69, 71-72; Halas v Parkway Hosp., 158 AD2d at 516-517; Zellar v Tompkins Community Hosp., 124 AD2d 287, 288).
A negligent act or omission by a health care provider that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient constitutes medical malpractice (see Davis v South Nassau Communities Hosp., 26 NY3d 563, 580; Spiegel v Goldfarb, 66 AD3d 873, 874; Sosnoff v Jackman, 45 AD3d 568). When the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the failure to fulfill a different duty, the claim sounds in ordinary negligence (see Weiner v Lenox Hill Hosp., 88 NY2d at 788; see also Rodriguez v Saal, 43 AD3d 272; Payette v Rockefeller Univ., 220 AD2d 69).
Here, many of the plaintiff‘s allegations bear a substantial relationship to the rendition of medical treatment to a particular patient (see Bazakos v Lewis, 12 NY3d 631, 634; Thomas v Hermoso, 110 AD3d 984). The complaint alleges, inter alia, that the defendant failed to properly screen the plaintiff for health problems, obtain her medical history, monitor her physical condition, measure her hemoglobin levels, and keep her at the donation site for a specific period of time to observe any signs of an adverse reaction. The issues of whether the plaintiff needed additional screening, monitoring, or supervision, and whether she was at risk of falling due to a medical condition, involve the exercise of medical judgments beyond the common knowledge of ordinary persons. Only a medical professional would know what factors make a person ineligible to donate blood, how much blood should be drawn, what constitutes the signs and symptoms of an adverse reaction, and how to immediately treat an adverse reaction. Thus, the interaction between the plaintiff and the defendant implicates issues of medical judgment that sound in medical malpractice. This is not an action, as described by the plaintiff, where issues of duty can be resolved by the trier of fact based upon mere common knowledge of everyday experiences.
A reported case with underlying facts similar to those presented here is Muniz v American Red Cross (141 AD2d 386), wherein a plaintiff donating blood allegedly sustained septic phlebitis from a negligently administered blood draw. There, the Appellate Division, First Department held that the allegations against the blood donation center were in the nature of medical malpractice requiring medical expert opinion (see id. at 388-389; see also Jeter v New York Presbyt. Hosp., 172 AD3d at 1340 [plaintiff with memory loss wandered from hospital and sustained injuries due to alleged lack of proper supervision]; Martuscello v Jensen, 134 AD3d at 12 [plaintiff‘s fall from an examination table allegedly caused by the lack of proper supervision]; Smee v Sisters of Charity Hosp. of Buffalo, 210 AD2d 966, 967 [plaintiff with light-headedness fell from a chair due to hospital‘s alleged failure to supervise]). Notably, a blood bank must employ a medical director if blood is collected there (
We disagree with the plaintiff that
IV. The Remedy for Noncompliance with CPLR 3012-a
While we disagree with the Supreme Court‘s conclusion that a certificate of merit was not required because, in its view, the action sounded in ordinary negligence, we nonetheless agree with the court‘s ultimate determination that the complaint should not be dismissed.
Here, although the complaint was not accompanied by a certificate of merit as required by
In light of the foregoing, the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying the defendant‘s motion to dismiss the complaint for failure to file a certificate of merit, and substituting therefor a provision granting the motion to the extent of directing the plaintiff to serve a certificate of merit upon the defendant within 60 days and otherwise denying the motion; as so modified, the order is affirmed and the plaintiff‘s time to serve a certificate of merit is extended until 60 days after service upon her of a copy of this opinion and order.
COHEN, BARROS and CONNOLLY, JJ., concur.
ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying the defendant‘s motion to dismiss the complaint for failure to file a certificate of merit, and substituting therefor a provision granting the motion to the extent of directing the plaintiff to serve a certificate of merit upon the defendant within 60 days and otherwise denying the motion; as so modified, the order is affirmed, without costs or disbursements, and the plaintiff‘s time to serve a certificate of merit is extended until 60 days after service upon her of a copy of this opinion and order.
ENTER:
Aprilanne Agostino
Clerk of the Court