Summary
In Fox v. White Plains Medical Ctr., 125 A.D.2d 538, 509 N.Y.S.2d 614 (2d Dep't 1986) the court held that where the hospital failed to provide bed rails to a post operative patient who fell and injured himself attempting to walk unassisted from the bed to the bathroon sounded in medical malpractice rather than ordinary negligence. Of critical importance to the court in reaching this conclusion was the fact that the breach of duty sprang from the alleged improper assessment of the amount of supervision required.
Summary of this case from Staveley v. St. Charles Hosp.Opinion
December 22, 1986
Appeal from the Supreme Court, Westchester County (Dickinson, J.).
Ordered that the order is affirmed, with costs.
After undergoing minor surgery at the defendant hospital, the plaintiff Edward Fox, to whom general anesthesia had been administered, arose from his hospital bed and attempted to walk unassisted to the bathroom. He became dizzy and fell, severely injuring his back. The plaintiffs attribute the accident to the failure of the defendant hospital to have siderails on the patient's hospital bed and maintain that the gravamen of the action is common-law negligence. We disagree and conclude that Special Term did not err in striking the ad damnum clause.
When the duty owing to the plaintiff by the defendant arises from the physician-patient relationship or is substantially related to medical treatment, the breach thereof gives rise to an action sounding in medical malpractice as opposed to simple negligence (see, Bleiler v. Bodnar, 65 N.Y.2d 65; Stanley v Lebetkin, 123 A.D.2d 854). Inasmuch as the essence of the plaintiffs' allegations here is that an improper assessment of the patient's condition and the degree of supervision required, particularly with regard to his ability to ambulate postoperatively, led to the subject injuries, the action was properly determined to sound in medical malpractice rather than ordinary negligence (see, Coursen v. New York Hosp.-Cornell Med. Center, 114 A.D.2d 254, 256; Lenny v. Loehmann, 78 A.D.2d 813). The conduct complained of is not such as may be readily assessed on the basis of the common, everyday experience of the trier of facts (Miller v. Albany Med. Center Hosp., 95 A.D.2d 977, 978; Hale v. State of New York, 53 A.D.2d 1025, lv denied 40 N.Y.2d 804).
CPLR 3017 (c) requires the elimination of any mention of damages whenever a medical malpractice claim is alleged. "The prohibition is not limited to a specific claim or cause of action within a complaint, but rather applies to the entire complaint which includes an action for medical malpractice" (Vigo v. New York Hosp., 113 Misc.2d 972, 975; accord, Miller v. Albany Med. Center Hosp., supra, at p 979). Were the rule otherwise, the legislative purpose and statutory intent could readily be circumvented merely by pleading alternative causes of action or joining nonmedical defendants (Pizzingrilli v. Von Kessel, 100 Misc.2d 1062). Accordingly, the ad damnum clause was properly eliminated from both the principal and derivative causes of action. Mollen, P.J., Brown, Weinstein and Rubin, JJ., concur.