Claim Determined to be Medical Malpractice not Negligence and thus time barred.
Associate attorney Michael K. Chin of Montfort, Healy, McGuire & Salley was successful in the dismissal of a medical malpractice claim in Nassau County Supreme Court. Representing a major hospital and rehabilitation Center, Mr. Chin argued that the claim against the facility was a medical malpractice claim rather than a negligence claim and thus barred by the two and one half year statute of limitations.
The Plaintiff’s action against the rehabilitation facility arose from personal injuries sustained in July 2011 when the Plaintiff fell during a physical therapy session. The Plaintiff asserted a single cause of action for negligence after he claimed that the defendant “failed and omitted to properly supervise the plaintiff to prevent falls…failed and omitted to properly diagnose plaintiff’s injuries in a timely manner…and failed and omitted to properly treat plaintiff’s injuries in a timely manner.” In addition, the plaintiff claimed that the defendant used a lack of care when placing him in a strenuous position likely to cause the injury. Furthermore, the claim stated that the defendant violated New York State Office of Professional Practice Guidelines by allowing an unlicensed aid to provide direct contact with the plaintiff. The claim of negligence carries with it a three-year statute of limitations.
In review of the claims, Montfort, Healy, McGuire & Salley moved to dismiss the action because the cause of action was medical practice and not negligence, and therefore barred by the statute of limitations. In relying on case law, the court had to determine whether the case is medical malpractice or negligence by looking at where the duty of the professional arose from. If the duty of the defendant arose from the physician-patient relationship or is substantially related to medical treatment, then any breach of that duty would give rise to an action of medical malpractice rather than negligence.
The court found that the plaintiff’s injury came after he was presented to the rehabilitation facility for services following a knee replacement. The plaintiff alleged that the licensed physical therapist was not in the room, and instead was just her aide. While the defendant disputed this claim, the court found that regardless the question was not a sufficient question of fact to survive the motion to dismiss. The court determined that if the physical therapist left the patient alone in the room with the aide then that would go to the adequacy and supervision of the training of the aide and be related to the medical services.
The court noted that “allegations of inadequacy do not remove or change their roles from that of medical malpractice to simple negligence.” (Perkins v. Kearney, 155 AD2d 191). The court concluded that the negligent conduct at bar constituted an integral part of the process of rendering medical treatment to the plaintiff, and thus would constitute a claim for medical malpractice. Therefore, the court dismissed the claim as being time barred by the statute of limitations.
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