Opinion
No. 2019-09912 Index No. 36925/18
06-22-2022
Juanita McNally, etc., appellant, v. Montefiore Nyack Hospital, respondent, et al., defendants.
Sacco & Fillas, LLP, Astoria, NY (Boris Bernstein of counsel), for appellant. Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, White Plains, NY (Evan J. Lyman of counsel), for respondent.
Sacco & Fillas, LLP, Astoria, NY (Boris Bernstein of counsel), for appellant.
Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, White Plains, NY (Evan J. Lyman of counsel), for respondent.
BETSY BARROS, J.P. FRANCESCA E. CONNOLLY LINDA CHRISTOPHER LARA J. GENOVESI, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Rockland County (Paul I. Marx, J.), entered July 23, 2019. The order granted the motion of the defendant Montefiore Nyack Hospital pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred.
ORDERED that the order is affirmed, with costs.
The plaintiff's decedent, Fernand McNally (hereinafter the decedent), allegedly received medical treatment from the defendant Montefiore Nyack Hospital (hereinafter Montefiore) beginning on or about September 1, 2015, up until the decedent's death on November 25, 2015.
The plaintiff commenced this action just under three years later. Thereafter, Montefiore moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred under CPLR 214-a and EPTL 5-4.1. In opposition, the plaintiff argued, among other things, that the first cause of action sounded in ordinary negligence and therefore was not time-barred by the 2½-year statute of limitations for medical malpractice. The plaintiff further argued that the second cause of action, to recover damages for wrongful death, was not time-barred by the two-year statute of limitations applicable to wrongful death claims because it related to the allegedly timely first cause of action. By order entered July 23, 2019, the Supreme Court granted Montefiore's motion, and the plaintiff appeals.
"[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 N.Y.2d 784, 787 [internal quotation marks omitted]; see Rabinovich v Maimonides Med. Ctr., 179 A.D.3d 88, 92). "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" (Rabinovich v Maimonides Med. Ctr., 179 A.D.3d at 92-93, citing Jeter v New York Presbyt. Hosp., 172 A.D.3d 1338, 1339; see Pacio v Franklin Hosp., 63 A.D.3d 1130). In other words, "[t]he 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 A.D.3d at 1339 [internal quotation marks omitted]; see Rabinovich v Maimonides Med. Ctr., 179 A.D.3d at 93).
"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" (Rabinovich v Maimonides Med. Ctr., 179 A.D.3d at 93, citing Weiner v Lenox Hill Hosp., 88 N.Y.2d at 788). "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" (Rabinovich v Maimonides Med. Ctr., 179 A.D.3d at 93, citing Jeter v New York Presbyt. Hosp., 172 A.D.3d at 1339; see Reardon v Presbyterian Hosp. in City of N.Y., 292 A.D.2d 235, 237).
"In contrast, an action sounds in medical malpractice where the determination involves a consideration of professional skill and judgment" (Rabinovich v Maimonides Med. Ctr., 179 A.D.3d at 93, citing Weiner v Lenox Hill Hosp., 88 N.Y.2d at 788). Medical malpractice is "[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" (Rabinovich v Maimonides Med. Ctr., 179 A.D.3d at 93, citing Davis v South Nassau Communities Hosp., 26 N.Y.3d 563, 580; see Spiegel v Goldfarb, 66 A.D.3d 873, 874).
"A cause of action must be judged by its allegations, not its label" (Bohm v Holzberg, 47 A.D.2d 764, 764; see CPLR 3013). Here, the plaintiff's allegations in the first cause of action "bear a substantial relationship to the rendition of medical treatment to" the decedent (Rabinovich v Maimonides Med. Ctr., 179 A.D.3d at 94). Those allegations challenge Montefiore'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" (Estate of Bell v WSNCHS N., Inc., 153 A.D.3d 498, 499, quoting Scott v Uljanov, 74 N.Y.2d 673, 675; see Pacio v Franklin Hosp., 63 A.D.3d at 1132-1133). Therefore, the Supreme Court correctly determined that the first cause of action sounded in medical malpractice, not ordinary negligence (cf. Bleiler v Bodnar, 65 N.Y.2d 65, 72-73; Tracy v Vassar Bros. Hosp., 130 A.D.3d 713, 715), and, as such, was barred by the 2½-year statute of limitations for medical malpractice (see CPLR 214-a).
In light of our determination, we need not consider the plaintiff's remaining contentions.
BARROS, J.P., CONNOLLY, CHRISTOPHER and GENOVESI, JJ., concur.