This was originally published on the SGR Blog.
Was Doctors Group Liable for Injury Incurred?
John Davoudi sued Orthopaedic Associates of Manhasset P.C. (OAM) to recover damages for personal injuries he allegedly sustained in an accident that occurred on October 7, 2015 at the offices of OAM. Davoudi alleged that an x-ray technician, Steven Levitt, instructed him to sit on a rolling stool which rolled out from under him and caused him to fall. In his complaint, Davoudi asserted two causes of action — the first sounding in negligence, and the second sounding in negligent hiring, training and retention.
OAM moved for summary judgment on the grounds that: (i) OAM was not negligent and did not breach its duty to keep the premises in a reasonably safe condition; and (ii) the claim of negligent hiring, training and retention, was legally infirm.
In support of its motion, OAM submitted, among other things: (i) the transcript of the deposition of Davoudi: (ii) the transcript of the deposition of Steven Levitt; and (iii) the medical records pertaining to Davoudi’s at OAM.
The medical records reflected a history of orthopaedic care and treatment at OAM dating back to February 2013, including a left total knee arthroplasty in July of 2014. Included in the records was a report covering the examination of Davoudi on October 7, 2015, the date of the accident, by orthopaedist Bruce A. Seideman, M.D. According to the report, Davoudi, then 78 years old, presented with a chief complaint of pain in the right thigh and right knee. The report detailed the history of his present illness:
The onset of the symptoms was sudden and not related to an injury. Pain is severe with a rating of 10/10. He describes the symptoms as dull and aching. The symptoms do not differ between day or night. Additional symptoms include numbness, weakness and sleep disturbances. Since the onset, the symptoms have been worsening. Symptoms are made worse with activity and walking. The symptoms are relieved with medication. Patient is having increasing pain in his right knee and would like to consider arthroplasty. He is also very happy with his left knee. He also had some pain in his thigh and he pinches in his upper thigh area as the area of his pain. Patient has had cortisone injection to the knee without relief. Patient has utilized NSAID medication for over 3 months without adequate relief. Patient has knee pain that interferes with [orthopedic aids], increases with weight bearing and increases with initiation of activities.
Upon examination and review of the x-rays taken that day, Seideman diagnosed advanced right knee osteoarthritis. The report indicated that Seideman discussed a right total knee arthroplasty with Davoudi, who agreed to the procedure. The report also acknowledged the occurrence of Davoudi’s fall on that day.
At his deposition, Davoudi testified that:
He arrived at OAM’s offices in the afternoon of October 7, 2015 with his son for a scheduled pre-surgical appointment. He was having a lot of pain in his right knee. He was walking with a cane. A young woman with blond hair brought him into an examination room. He changed into a gown. The same young woman then escorted him to the x-ray room. The x-ray room was approximately 30-40 steps away, and he walked there using the cane. When the x-ray was finished, the x-ray technician escorted him down the hallway toward the examination room. The x-ray technician told him that was his room, but it was not the same room as he was in prior to the x-ray. He went inside. In his own words: There was a chair with wheels without a back. I told him, “if I sit on this, I am going to fall down.” Then he left. He laughed and left. And it was high, about 2 feet, it was high. As soon as I sat on it, I fell down.
The x-ray technician, Steven Levitt, provided a somewhat different account. When he testified that: “I was walking back to the examination room, he was walking slow, I got called over by an employee to go talk about a surgery, you know, the exam rooms are close to her cubicle, so I know I had time to talk to her because he was walking so slow, and the next thing I know, he was on the floor.” According to Levitt, he was walking in front of Davoudi and Davoudi was walking “way behind me.” When he heard a “thump” indicating that someone had fallen, Levitt found Davoudi on the floor. According to Levitt, “He [Davoudi] went to the wrong exam room.”
OAM maintained that it could not be held liable for Davoudi’s injuries, because it did not breach any duty to maintain the premises in a reasonably safe condition. Asserting that any risk posed by sitting on a rolling, backless chair was open and obvious, and admittedly known by Davoudi before he sat down on it. Accordingly, OAM argued there was no duty to warn. Moreover, insofar as there was no evidence that the chair was defective, the chair was not inherently dangerous. Thus, OAM argued, the action must be dismissed, because OAM could not be held liable for injuries allegedly caused by a condition that was open and obvious and not inherently dangerous.
In opposition, Davoudi asserted that OAM’s argument was irrelevant, because his claim was not based on a theory of premises liability. Rather, Davoudi’s claim was predicated upon allegations that OAM and Levitt violated their duty of care by failing to assist him to the examination room and to ascertain his safety prior to leaving him. On OAM’s version of the facts, Davoudi argues, Levitt abandoned him in the hallway to go talk to another employee, allowing him to walk unattended into the wrong examination room and to lower himself onto a chair that was not appropriate or intended for his use. Davoudi contended that was negligence, particularly in view of his age, his presenting with orthopaedic issues in the right knee, his apparent difficulty in walking, and his use of a cane. OAM’s own protocol for determining whether a patient needed assistance in transporting between the exam room and the x-ray room required consideration of such factors as whether the patient was using a device to walk, what injuries they had, whether they were with a family member, and what body part was affected and presented for treatment and x-ray.
In reply, OAM argued for the first time that the claim articulated in Davoudi’s opposition papers amounted to a claim of medical malpractice, not ordinary negligence, and asserted that, because Davoudi had neither pleaded medical malpractice nor filed a timely notice of medical malpractice, and had not alleged any other basis for a claim of ordinary negligence, the action must be dismissed.
As a general rule, Courts will not consider issues raised for the first time in reply papers. But even if the Court was to consider the argument, the Court was not persuaded that OAM’s allegations sounded in malpractice rather than negligence.
The distinction between medical malpractice and negligence is a subtle one. Medical malpractice is but a species of negligence and no rigid analytical line separates the two. A claim sounds 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. By contrast, when the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the failure in fulfilling a different duty, the claim sounds in negligence.
The issue devolves to whether medical judgment is required or not; where the underlying claim arises from the failure to follow a medical order previously made or to apply standards of ordinary care, then it is negligence, without regard to whether expert testimony is deemed helpful to the resolution. However, where the conduct involves a standard established by means of the exercise of medical judgment, then it is malpractice.
Numerous New York cases have dealt with the fact pattern of a patient suing for injuries sustained in a fall at a hospital during the course of medical treatment. The distinction between those claims deemed to be malpractice, and those deemed to be negligence is not clearly delineated. From the reasoning of the decisions, it appears that a claim sounds in malpractice when it challenges a physicians’ assessment of a patient’s medical condition and its impact on falling risk and the need for assistance or supervision. A claim sounds in ordinary negligence when the patient’s risks were recognized and no special skill or knowledge was required to assess the harm in leaving him or her unsupervised. The difficulty lies in determining into which category a particular fact pattern falls.
In this case, the matter was more straightforward. The essence of Davoudi’s claim was not that OAM improperly assessed his medical condition or the degree of supervision required. Rather, the gravamen of the claim was that OAM’s employee, recognizing the risk, undertook to assist Davoudi to return safely to the examination room, but did so in a negligent manner.
On that issue, the Court found that OAM failed to establish prima facie entitlement to judgment as a matter of law. The submissions did not eliminate issues of fact as to whether OAM’s employee was negligent in failing to stay with Davoudi until he was safely seated in the examination room, and whether such alleged negligence was the proximate cause of Davoudi’s injuries.
Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision, or training.
OAM asserted that it was subject to liability on the basis of respondeat superior and thus could not also be held liable for negligent hiring, retention, supervision, or training of Levitt, and argued that there was no evidence supporting the claim. Davoudi did not oppose that branch of the motion.
The branch of OAM’s motion seeking summary judgment on the cause of action sounding in negligence was denied, and the branch of OAM’s motion seeking summary judgment on the cause of action sounding in negligent hiring, training, and retention was granted.