By: Louis G. Adolfsen, Esq., Robert D. Ely, Esq. and Michael Panayotou, Esq.
In a case against a nursing home alleging bodily injury or personal injury, it is common to allege three causes of action. The first is medical malpractice. The second is negligence. And the third is a violation of Article 28 of the New York Public Health Law. The difference between these causes of action may be simply stated but sometimes that distinction gets blurred.
Some cases have suggested that medical malpractice and negligence are the same causes of action. See Scott v. Uljanov, 74 N.Y.2d673, 543 N.Y.S.2d 673, 541 N.E.2d 398 (1989) "medical malpractice is a form of negligence, no rigid analytical line separates the two". "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 facts". Id.
A hospital or medical facility has a general duty to exercise reasonable care and diligence in safeguarding a patient, based in part of the capacity of the patient to provide for his or her own safety. D' Alia Menorah Home and Hosp. for Aged and Infirm, 51 A.D.3d 848, 859 N.Y.S.2d 224 (2 Dep't. 2008); when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician, the claim sounds in medical malpractice rather than simple negligence. Papa v. Brunswick Gen. Hospital, 132 A.D.2d 601, 517 N.Y.S.2d 762 (2d Dep't. 1987); Halas v. Parkway Hosp., Inc., 158 A.D.2d 516, 551 N.Y.S.2d 279 (2 Dep't. 1990); D'Elia v. Menorah Home and Hospital for the Aged and Infirm, 51 A.D.3d 848, 859 N.Y.S.2d 224 (2 Dep't. 2008).
Similarly, it may be that presenting alleged violations of the Public Health Law in cases where medical malpractice and negligence are also alleged may be confusing to a jury. See Nursing Homes: Separating Statutory Claims from Plain Old Negligence, New York Law Journal, by Louis G. Adolfsen and Steven I. Lewbel, August 13, 2009.
In a recent case, the Appellate Division, Second Department of the State of New York in a very carefully worded decision described the distinction between these three causes of action.
"Liability under the Public Health Law contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient" (Moore v St. James Health Care Ctr., LLC, 141 AD3d 701, 703 [internal quotation marks omitted]). Thus, the basis for liability under Public Health Law § 2801-d " is neither deviation from accepted standards of medical practice nor breach of a duty of care. Rather, it contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule"' (Novick v South Nassau Communities Hosp., 136 AD3d 999, 1001, quoting Zeides v Hebrew Home for Aged at Riverdale, 300 AD2d 178, 179). Here, the affirmation of Grandell's expert in nursing set forth that Grandell did not violate any applicable federal and state regulations (see Gold v Park Ave. Extended Care Ctr. Corp., 90 AD3d 833, 834). The expert affirmation submitted by the plaintiff, which relied upon facts that were contradicted or unsupported by the record, offered only conclusory allegations of regulatory violations (see Shapiro v Gurwin Jewish Geriatric Nursing & Rehabilitation Ctr., 84 AD3d 1348, 1349) insufficient to defeat summary judgment.
Schwartz v. Partridge, No. 2017-08646, 2020 WL 355966 (N.Y. App. Div. Jan. 22, 2020)
Parties should be mindful of these distinctions. First, medical malpractice is a deviation from accepted standards of medical care. Second, negligence is a breach of the duty of care. Third, a cause of action under the New York Public Health Law requires showing that a defendant nursing home violated applicable federal and state regulations and deprived a resident of the rights granted thereunder. It is not necessary in the Public Health Law claim to show either medical malpractice or negligence-simply violating a statute is enough. These distinctions, while perhaps easy to plead, require careful analysis in every case where these three causes of action are alleged.
Our firm has substantial experience in defending Public Health Law claims and has successfully defeated such claims at both the summary judgment stage and at trial. For more information, please contact Louis G. Adolfsen, Esq. at (212) 238-8920.