Opinion
Index No. EF2019-67358
10-16-2023
Doris Hurley, Plaintiff, v. Glens Falls Hospital, Defendant.
Finn Law Offices, Albany (Ryan M. Finn, of counsel), for plaintiff. McPhillips, Fitzgerald and Cullum LLP, Glens Falls (Matthew T. Skinner, of counsel), for defendant.
Unpublished Opinion
Finn Law Offices, Albany (Ryan M. Finn, of counsel), for plaintiff.
McPhillips, Fitzgerald and Cullum LLP, Glens Falls (Matthew T. Skinner, of counsel), for defendant.
ROBERT J. MULLER, J.S.C.
This summary judgment motion is supported by the affidavit of Judy L. Dillworth, a licensed Registered Nurse (RN) and an American College of Critical Care Medicine Fellow (FCCM), with a PhD in Nursing Research Theory and Development and professional certifications in critical care (Critical Care Registered Nurse Certification [CCRN-K]) and Nursing Administration (Nurse Executive Advanced [NEA-BC]).
The expert's summary of the facts relied upon to formulate her opinions in this case are that on November 26, 2018, plaintiff presented to defendant's Emergency Department for evaluation for frequency of falls and general weakness and that she had fallen shortly before presenting to defendant and suffered a right distal clavicle fracture. Plaintiff was admitted to defendant on this same day, with staff aware of her fall history.
Upon admission plaintiff's fall risk was initially assessed at 1:05 P.M. by RN Jillian L. Bomtraeger with a fall risk score of 14, indicating she was at high risk for falls. The High-Risk Interventions in place to prevent plaintiff from falling included: activation of a bed/chair alarm; keeping the call light in reach; frequent rounds by the staff; placing the fall color (yellow) band on the patient; educating the family and the patient on fall prevention; situating the patient close to the nurse's station; using a gait belt while ambulating; and not leaving the patient unattended for toileting activities.
On November 26, 2018, fall risk assessments continued during each nursing shift, and a score of 14 continued to be charted. The same high-risk interventions remained in place with a note that she had bathroom privileges.
At 7:40 A.M. on November 27, 2018, RN Lauren Jenkins assessed plaintiff, and she again assessed her as a fall risk score of 14. At this time the fall interventions included: activation of a bed/chair alarm; keeping the call light in reach; frequent rounds by the staff; situating the patient close to the nurse's station; and using a gait belt while ambulating. Additionally, at this time, according to plaintiff's chart, her room had adequate lighting, her bed was maintained in a low position, and her personal items and the call bell were within her reach. There was a nightlight, there were rails on her bed, and the wheels of the bed were locked. She was still permitted to use the bathroom.
At 8:57 A.M. on November 27, 2018, Sarah E. Thomas, an occupational therapist, indicated in the chart that plaintiff's husband, Ray, was her home caregiver. At 10:01 A.M., Ryan J. Colvin, patient care assistant (hereinafter PCA) recorded plaintiff's Activities of Daily Living. At this time her care team were to use a gait belt and/or walker while ambulating, she was to have a two-person assist for ambulation and mobility, and she continued to have bathroom privileges. On these facts the expert describes that plaintiff walked to the bathroom located in her room without incident at approximately 10:55 A.M.
At 11:05 A.M., plaintiff asked for assistance to go the bathroom again. RN Jenkins told the plaintiff that she needed to get help and instructed her not to get up without a two person assist. Plaintiff agreed. RN Jenkins also instructed her and her husband, who was bedside, not to let her out of bed without anyone helping and to ring the call bell for assistance. Both individuals agreed. Immediately thereafter, RN Jenkins found PCA Callie Churchill, who could assist. She informed this PCA that plaintiff needed to use the commode, because she was fatigued from just having quickly walked to the bathroom 10 minutes prior. The record indicates that a commode was in her room.
PCA Churchill entered the room and found plaintiff's chair alarm sounding. Plaintiff was at the end of the bed and halfway to the bathroom with her husband and wheeled walker. She was far from the commode. She and her husband had proceeded to move despite the specific directions of RN Jenkins that they not do so.
PCA Churchill and PCA Colvin took over and immediately secured a gait belt around plaintiff's waist. Each PCA grabbed a side of the belt and continued walking her towards the bathroom. The assistants moved plaintiff towards the bathroom with the belt and two-person assist. Plaintiff was wearing non-slip socks and using a wheeled walker. While assisting plaintiff towards the bathroom, her knees buckled. Each PCA kept a hold of the gait belt and lowered her to the ground on her knees. RN Jenkins was immediately notified about the fall and when she entered the room, RN Jenkins found plaintiff lying on her back on the floor. Plaintiff denied being in any pain, but she was a bit short of breath. She was safely lifted back to bed with a total lift and a total assessment was done. After being lifted back to bed and being assessed, plaintiff began complaining of knee pain, and X-rays of her bilateral knees were ordered. Once again, her bed alarm was turned on and the call light was placed in reach.
Plaintiff was ultimately diagnosed with a nondisplaced fracture of her left medial femoral condyle and comminuted fracture of her proximal fibula and an associated large hemarthrosis of the left knee. Surgery was not indicated, and she was discharged from defendant to an acute rehabilitation center on November 30, 2018.
On these facts the expert opines within a reasonable degree of professional certainty, that defendant complied with good and accepted nursing practice; that the care rendered was in accordance with physicians' orders, and complied with defendant's own policy; that the fall protection plan applicable to plaintiff included good and accepted measures and interventions for inpatient fall prevention in a hospital for patients, including patients like plaintiff; that defendant's nursing and medical staff did not deviate from good and accepted standards of care and practice; and that the PCAs used reasonable judgment when electing to continue ambulating her to the bathroom rather than returning her to the commode or her bed.
Despite this comprehensive summary the expert does not reference the testimony of plaintiff's husband, an apparent eyewitness at least to events immediately preceding the fall - that the hospital staff were called to help plaintiff to the bathroom and while being assisted one of the two hospital employees did not have their hand on the gait as the hospital's fall protection rules required.
Defendant's motion seeks an Order finding that plaintiff's claim sounds in medical malpractice as opposed to negligence, and granting summary judgment dismissing the complaint pursuant to CPLR 3212. These requests for relief are addressed ad seriatim.
I. 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 N.Y.2d 784, 787 [1996], quoting Scott v Uljanov, 74 N.Y.2d 673, 674 [1989]; see Martuscello v Jensen, 134 A.D.3d 4, 10 [3d Dept 2015]). 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 A.D.3d 1338, 1339 [2d Dept 2019]; Pacio v Franklin Hosp., 63 A.D.3d 1130, 1132 [2d Dept 2009]). "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 A.D.3d at 139 [citations and internal quotation marks omitted]; see Friedmann v New York Hosp.-Cornell Med. Ctr., 65 A.D.3d 850, 858 [1st Dept 2009, Catterson, J., dissenting]; Halas v Parkway Hosp., 158 A.D.2d 516, 516-517 [2d Dept 1990]; Miller v Albany Med. Ctr. Hosp., 95 A.D.2d 977, 978 [3d Dept 1983]).
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 A.D.3d at 1339; Reardon v Presbyterian Hosp. in City of NY, 292 A.D.2d 235, 237 [2002]). 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 N.Y.2d at 788; Bleiler v Bodnar, 65 N.Y.2d 65, 72 [1985]; Rey v Park View Nursing Home, 262 A.D.2d 624, 626-627 [2d Dept 1999]; Payette v Rockefeller Univ., 220 A.D.2d 69, 71-72 [1st Dept 1996]; Halas v Parkway Hosp., 158 A.D.2d at 516-517; Zellar v Tompkins Community Hosp., 124 A.D.2d 287, 288 [3d Dept 1986]).
"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" (Rabinovich v Maimonides Med. Ctr., 179 A.D.3d 88, 93 [2d Dept 2019]; see Davis v South Nassau Communities Hosp., 26 N.Y.3d 563, 580-581 [2015]; Spiegel v Goldfarb, 66 A.D.3d 873, 874 [2d Dept 2009], lv denied 15 N.Y.3d 711 [2010]; Sosnoff v Jackman, 45 A.D.3d 568, 571 [2d Dept 2007]). "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 Rabinovich v Maimonides Med. Ctr., 179 A.D.3d at 93; see Weiner v Lenox Hill Hosp., 88 N.Y.2d at 788; Kelty v Genovese Drug Stores, Inc., 214 A.D.3d 776, 777 [2d Dept 2023]; Rodriguez v Saal, 43 A.D.3d 272, 274 [1st Dept 2007]; Payette v Rockefeller Univ., 220 A.D.2d at 71-72).
Here, plaintiff's allegations do not bear a substantial relationship to the rendition of medical treatment (see Bazakos v Lewis, 12 N.Y.3d 631, 634 [2009]; Rabinovich v Maimonides Med. Ctr., 179 A.D.3d at 94). The complaint alleges that:
"plaintiff was injured by reason of the carelessness and negligence of the defendant, its agents, servants, and/or employees who failed to properly care for plaintiff; failed to properly monitor plaintiff; failed to implement effective fall prevention techniques; and who otherwise carelessly, unskillfully, and negligently cared for plaintiff. Such conduct was not in compliance with accepted standards of care, practice, or treatment and unnecessarily exposed plaintiff to risk of injury."
That being said, the more distilled facts - not in controversy - are that defendant's fall protection policies were required to be followed for plaintiff's protection. In other words, the factual dispute is whether hospital staff were following these policies when plaintiff fell and sustained injuries. The interactions between plaintiff and defendant do not implicate issues of medical judgment that would sound in medical malpractice. This is an action where the issues of duty can be resolved by the trier of fact based upon mere common knowledge of everyday experiences. The Court therefore denies that aspect of the motion seeking an Order finding that plaintiff's claim sounds in medical malpractice as opposed to negligence.
II. Motion for Summary Judgment
Turning next to that aspect of defendant's motion which seeks summary judgment dismissing the complaint, "'[s]ummary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action'" (Taylor v Appleberry, 214 A.D.3d 1142, 1144 [3d Dept 2023], quoting Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] [internal quotation marks, brackets, and citation omitted]; accord Davis v Zeh, 200 A.D.3d 1275, 1278 [3d Dept 2021]; see CPLR 3212 [b]). "'When considering a motion for summary judgment, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations'" (Taylor v Appleberry, 214 A.D.3d at 1144, quoting Carpenter v Nigro Cos., Inc., 203 A.D.3d 1419, 1420-1421 [3d Dept 2022] [internal quotation marks and citation omitted]; see Vega v Restani Constr. Corp., 18 N.Y.3d at 503, 505; Facteau v Mediquest Corp., 162 A.D.3d 1386, 1388 [3d Dept 2018]).
Here, nursing progress notes indicate that plaintiff "was up to the bathroom with two PCA's [sic] and her knees gave out in the bathroom door." The notes further state as follows: [Plaintiff] was alert. Per [plaintiff] she did not hit her head. Per [plaintiff] and PCA's [sic] while getting in the bathroom [plaintiff's] 'knees buckled' and she fell to the floor onto her knees." This conforms with the expert's summary that "[e]ach PCA grabbed a side of the belt and continued walking [plaintiff] towards the bathroom." It collides, however, with the following testimony from plaintiff's husband:
"I can remember a young lady standing beside her bed and a man, and she said, let's - let's get the, whatever, piece of equipment, I imagine, to take her to the bathroom, and he said, no, we'll get her. So they got her out of bed, and I believe they probably - I - they walked in front of me, and as they went by me, I said to him, I says, she's got that belt on, and I actually recall - right now I think I actually said, she's got that belt on for a reason. The lady had a hold of it, and he didn't have a hold of it, and I said it might be a good idea, or something to that effect, and he turned around and said, we got it."
These discordant versions of events are not something this court is empowered to resolve. That aspect of defendant's motion seeking summary judgment is also denied.
Briefly, to the extent that defendant has failed to make a prima facie showing of its entitlement to summary judgment, plaintiff's opposition papers need not be considered (see Vega v Restani Constr. Corp., 18 N.Y.3d at 503; Taylor v Appleberry, 214 A.D.3d at 1144; Davis v Zeh, 200 A.D.3d at 1278).
Therefore, having considered NYSCEF document Nos. 1 through 2, 9 through 21, 27 through 29 and oral argument having been heard on September 15, 2023 with Ryan M. Finn, Esq. appearing on behalf of plaintiff and Matthew T. Skinner, Esq. appearing on behalf of defendant, it is hereby
ORDERED that defendant's motion is denied in its entirety.
The original of this Decision and Judgment has been e-filed by the Court. Counsel for plaintiff is hereby directed to serve with notice of entry.