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describing certificate of merit argument as an affirmative defense
Summary of this case from Barbara v. United StatesOpinion
2016–08843 Index No. 507229/14
05-29-2019
Kitt JETER, Appellant, v. NEW YORK PRESBYTERIAN HOSPITAL, Respondent.
Ugo Uzoh, P.C., Brooklyn, N.Y. (Ugochukwu Uzoh of counsel), for appellant. Martin Clearwater & Bell LLP, New York, N.Y. (Barbara D. Goldberg and William P. Brady of counsel), for respondent.
Ugo Uzoh, P.C., Brooklyn, N.Y. (Ugochukwu Uzoh of counsel), for appellant.
Martin Clearwater & Bell LLP, New York, N.Y. (Barbara D. Goldberg and William P. Brady of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin Solomon, J.), dated July 20, 2016. The order granted the defendant's motion to compel the plaintiff to provide a certificate of merit pursuant to CPLR 3012–a and to transfer the action to the Medical Malpractice Part, denied that branch of the plaintiff's cross motion which was to dismiss the defendant's seventh affirmative defense, and granted that branch of the plaintiff's cross motion which was for leave to amend the complaint only to the extent of permitting the plaintiff to add a cause of action alleging medical malpractice.
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 for 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 granting that branch of the motion in its entirety; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
After the plaintiff underwent surgery on October 24, 2012, at the defendant hospital (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 she was found five days later.
The plaintiff commenced this action alleging, inter alia, that the hospital was negligent in failing to provide her with the proper care and supervision. The hospital moved to compel the plaintiff to provide a certificate of merit pursuant to CPLR 3012–a and to transfer the action to the Medical Malpractice Part, contending that the plaintiff's complaint sounded in medical malpractice rather than ordinary negligence. The plaintiff opposed the motion and cross-moved for leave to amend the complaint and to dismiss the hospital's seventh affirmative defense, which alleged that she failed to comply with CPLR 3012–a. The Supreme Court, finding that the complaint stated a cause of action to recover damages for medical malpractice, granted the hospital's motion, denied that branch of the plaintiff's cross motion which was to dismiss the hospital's seventh affirmative defense, and granted that branch of the plaintiff's motion which was for leave to amend the complaint only to the extent of permitting the plaintiff to add a cause of action alleging medical malpractice. The plaintiff appeals.
The critical factor to be decided here is the nature of the duty owed to the plaintiff that the hospital is alleged to have breached. A hospital or medical facility has a general duty to exercise reasonable care and diligence in safeguarding a patient, based in part on the capacity of the patient to provide for his or her own safety (see Hendrickson v. Hodkin, 276 N.Y. 252, 258–259, 11 N.E.2d 899 ; Papa v. Brunswick Gen. Hosp., 132 A.D.2d 601, 603, 517 N.Y.S.2d 762 ). "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 A.D.2d 977, 978, 464 N.Y.S.2d 297 ; see Halas v. Parkway Hosp., 158 A.D.2d 516, 516–517, 551 N.Y.S.2d 279 ). Generally, a cause of action will be deemed to sound in medical malpractice "when the challenged conduct ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician’ " ( Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 788, 650 N.Y.S.2d 629, 673 N.E.2d 914, quoting Bleiler v. Bodnar, 65 N.Y.2d 65, 72, 489 N.Y.S.2d 885, 479 N.E.2d 230 ; see Rey v. Park View Nursing Home, 262 A.D.2d 624, 626–627, 692 N.Y.S.2d 686 ; Payette v. Rockefeller Univ., 220 A.D.2d 69, 71–72, 643 N.Y.S.2d 79 ; Halas v. Parkway Hosp., 158 A.D.2d at 516–517, 551 N.Y.S.2d 279 ). Thus, when the complaint challenges the medical facility's performance of functions that are "an integral part of the process of rendering medical treatment" and diagnosis to a patient, such as taking a medical history and determining the need for restraints, it sounds in medical malpractice ( Scott v. Uljanov, 74 N.Y.2d 673, 675, 543 N.Y.S.2d 369, 541 N.E.2d 398 ; see Caso v. St. Francis Hosp., 34 A.D.3d 714, 714–715, 825 N.Y.S.2d 127 ; Rey v. Park View Nursing Home, 262 A.D.2d at 626–627, 692 N.Y.S.2d 686 ; Smee v. Sisters of Charity Hosp. of Buffalo, 210 A.D.2d 966, 967, 620 N.Y.S.2d 685 ; Fox v. White Plains Med. Ctr., 125 A.D.2d 538, 509 N.Y.S.2d 614 ).
Here, we agree with the Supreme Court's determination that the complaint contained 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 N.Y.2d 673, 543 N.Y.S.2d 369, 541 N.E.2d 398 ). 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 A.D.3d 714, 825 N.Y.S.2d 127 ; Chaff v. Parkway Hosp., 205 A.D.2d 571, 572, 613 N.Y.S.2d 237 ). 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 CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit" ( Maldonado v. Newport Gardens, Inc., 91 A.D.3d 731, 731–732, 937 N.Y.S.2d 260 ; see RCLA, LLC v. 50–09 Realty, LLC, 48 A.D.3d 538, 852 N.Y.S.2d 211 ). Here, there was no showing of prejudice, and the plaintiff's proposed amended complaint was not palpably insufficient or patently devoid of merit. Therefore, the court should not have limited the allegations that the plaintiff could include in her amended complaint.
The plaintiff's remaining contention, that the Supreme Court improperly dismissed her cause of action sounding in ordinary negligence, is without merit because the court did not direct dismissal of any cause of action in the order appealed from.
LEVENTHAL, J.P., ROMAN, MALTESE and IANNACCI, JJ., concur.