Simple Negligence vs. Medical Malpractice
by Daniel Horner
The distinction between simple negligence and medical malpractice seems simple enough – doctors commit malpractice while ordinary people are negligent. Yet an on-going strain in New York state common law is struggling with that very classification in circumstances which might be classified as quasi-medical.
The latest decision to deal with this topic was handed down by New York’s First Appellate Division on September 1, 2009. In Friedmann v. New York Hospital – Cornell Medical Center (Index 400800/01), the First Department determined that injuries sustained by a nursing home patient were the result of simple negligence and not medical malpractice. In that case, the decedent, who was bedridden and had fragile skin as a result of medication, was a resident at Silvercrest Extended Care Facility. She died when her right leg ruptured after it struck a bed rail while aides were adjusting her bed for dinner. The plaintiff alleged that the facility was negligent not only in allowing the leg to strike the bed, but also for not promptly addressing the injury and for delaying in calling 911.
The First Department reasoned that the plaintiff’s cause of action sounded in simple negligence, because the acts complained of could be evaluated by the trier of fact based on common knowledge without resort to expert testimony. This, the court reasoned, was distinct from situations in which directions given or treatment received by the patient are at issue. Citing to its own decision in Reardon v. Presbyterian Hosp. in City of N.Y., 292 AD2d 235 (2002) the Court noted that in medical malpractice cases, professional skill and judgment must be evaluated.
A lengthy dissent by Justice Catterson strongly disagreed with the Court’s assessment. Catterson, relating the case back to the well known Cardozo opinion in Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, argued that under the circumstances of this case, the harm suffered by the decedent was only foreseeable to someone who was able to bring to bear “special skills and knowledge of medical science,” thus removing the duty of care from simple negligence and into the realm of medical malpractice.
The dissent emphasized the lack of a bright line distinction under New York law between medical malpractice and negligence, noting among many cases the New York Court of Appeals case of Karasek v. LaJoie, 92 N.Y.2s 171 (1998), in which New York’s highest court admitted that the distinction between negligence and malpractice is something with which “the courts have periodically had to grapple.” In Karasek, the Court of Appeals was faced with the question of whether a psychologist was entitled to the benefit of the statute of limitation for medical malpractice which, in New York, is shorter than the limitation period for a negligence action.
The Friedmann dissent notes that while the Court of Appeals in Karasek decided who could be the subject of a malpractice claim, it did not address what types of care would be the subject of such a claim. Clearly then, while the case law on this issue continues to mount, viewpoints on the subject have not yet coalesced.
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