Gannon v Ramapo Manor Ctr. for Rehabilitation & Nursing
Annotate this CaseDecided on February 27, 2006
Supreme Court, Rockland County
Audrey Gannon, Individually and as Administatrix of the Estate of FREDERICK GANNON, Plaintiff,
against
Ramapo Manor Center for Rehabilitation & Nursing, Defendant.
0356/05
Ptashnik & Associates
Attorneys for Defendant
67 Wall Street
New York, NY 10005
Kornfeld, Rew, Newman & Simeone
Attorneys for Plaintiff
46 Washington Avenue P.O. Box 177
Suffern, NY 10901-5608
Alfred J. Weiner, J.
Upon the foregoing papers, it is ORDERED, that this application is disposed of as follows:
In this action Plaintiff, individually, and as an Administratrix of the Estate of Frederick Gannon, alleges that Defendant carelessly and negligently treated Plaintiff's decedent and, as a result, Plaintiff's decedent sustained injuries.
[*2]
Defendant contends that Plaintiff's Complaint puts forth a medical malpractice claim yet Plaintiff has not served the required Certificate of Merit (Civil Practice Law and Rules §3012-a) and Notice of Medical Malpractice Action (Civil Practice Law and Rules 3124 and 3406 and 22 NYCRR §202.56). Defendant also contends that Plaintiff's Bill of Particulars is deficient in that it fails to properly amplify the pleadings and that Defendant is unable to ascertain what Plaintiff intends to prove at trial.
Plaintiff opposes the motion and states that "Plaintiff's Complaint is not based on an action for medical malpractice, but rather on an action for negligence" and therefore, neither a Certificate of Merit nor Notice of Medical Malpractice Action is needed. Plaintiff also states that if there are any deficiencies in the Bill of Particulars, those deficiencies can be addressed when Defendant deposes Plaintiff.
The issue presented to this Court is whether the gravamen of Plaintiff's Complaint alleges a failure in medical treatment to the patient or whether the Complaint alleges a more generalized issue of negligence.
In support of its motion, Defendant has submitted a copy of Plaintiff's Complaint. Paragraph 13 of Plaintiff's Complaint reads in relevant part as follows:
"That upon information and belief, the Defendant RAMAPO MANOR CENTER FOR REHABILITATION AND NURSING agreed to treat the Plaintiff's decedent FREDERICK GANNON and carelessly and negligently treated the Plaintiff's decedent FREDERICK GANNON without using the proper degree of medical skill and/or care, departed from accepted medical customs and/or standards ..."
[Emphasis supplied]
Paragraph 14 of Plaintiff's Complaint reads in relevant part as follows:
"Upon information and belief and at all times hereinafter mentioned the Defendant RAMAPO MANOR CENTER FOR REHABILITATION AND NURSING was careless and negligent in failing to assess the significance of Plaintiff's decedent FREDERICK GANNON's condition and/or symptoms during the period of time he was under their care and/or failed to follow other conditions and/or caused same and failed to follow good, usual and accepted customs and practices in the medical profession and ignored signs, symptoms and complaints of the Plaintiff's decedent and failed to promptly, timely and adequately care and treat the Plaintiff's decedent FREDERICK GANNON."
[Emphasis supplied]
Paragraph 15 of Plaintiff's Complaint reads in relevant part:
"That upon information and belief the Defendant ... committed acts and/or omissions as follows: ... carelessly and negligently failing to treat and care for the Plaintiff's decedent in accordance with generally accepted standards of medical and/or hospital and/or nursing home and/or procedures; ...[in] failing to heed signs, symptoms and/or complaints; [in] ... failing to obtain appropriate consultations; [in] ... failing to take into account certain signs, symptoms and complaints ...; ...[in] failing to apply the proper tests and/or examination of the Plaintiff's decedent ... in the care and treatment of Plaintiff's decedent; ...[in] failing to [*3]assess the significance of certain complaints; ... ...[in] failing to properly monitor and/or follow Plaintiff's decedent's condition; ... ...[in] failing to employ proper tests and/or examination in an attempt to diagnose the condition ... ; ...[in] failing to interpret tests and/or examinations in an attempt to diagnose the Plaintiff's decedent's condition; ...[in] failing to entertain differential diagnoses; ...[in] failing to be suspicious of other diagnoses and/or conditions; ...[in] failing to have x-rays taken;...[in] failing to follow good, known and accepted customs and practices in the medical and/or therapy and/or nursing home treatment; ... [in] allowing the Plaintiff's decedent's condition to go unrecognized, undiagnosed and untreated ... ; ...[in] failing to treat Plaintiff decedent for the condition of which Plaintiff's decedent was complaining; [in] carelessly and negligently instituting therapy; ...[in] failing to diagnose myocardial infarction and pneumonia; ...[in] failing to recognize myocardial infarction and pneumonia; ... [in] carrying out therapy; ... [by] permitting and allowing myocardial infarction and pneumonia to occur; ... [in] permitting and allowing the Plaintiff's decedent to sustain myocardial infarction and pneumonia; ...[in] failing to stabilize Plaintiff's decedent's myocardial infarction and pneumonia; ...[by] causing myocardial infarction and pneumonia; ... "
The distinction between medical malpractice and negligence can be a subtle one. It has been held that medical malpractice is but a "species of negligence" and "no rigid analytical line separates the two" (Scott v. Uljanov, 74 NY2d 673, 674, 543 NYS2d 369, 541 NE2d 398).
In Plaintiff's Complaint, it is alleged that Defendant is "...a hospital and/or medical facility..." which is not dispositive of whether Plaintiff's claim is a negligence claim or whether it sounds in medical malpractice. The Court of Appeals has recognized that although a "hospital in a general sense is always furnishing medical care to patients * * * not every act of negligence toward a patient would be medical malpractice" (Bleiler v. Bodnar, 65 NY2d 65, 73, 489 NYS2d 885, 479 NE2d 230).
In Weiner v Lenox Hill Hospital, (88 NY2d 784, 673 NE2d 914, 650 NYS2d 629), Judge Ciparik, writing for the Court of Appeals stated:,"... 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" (Bleiler v Bodnar, id. at 72). By contrast, when "the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the hospital's failure in fulfilling a different duty," the claim sounds in negligence (id. at 73; see, Scott v. Uljanov, supra , 74 NY2d at 675, 543 NYS2d 369, 541 NE2d 398)."
Guided by the principles set forth by the Court of Appeals, and upon a careful reading of Plaintiff's Complaint, this Court finds that the gravamen of Plaintiff's claim sounds in medical malpractice. Plaintiff's Complaint recites a litany of medical activities that it is claimed Defendant failed or improperly addressed. In Plaintiff's Complaint it is alleged, among other things, that Defendant failed to "...assess...symptoms", "...failed to follow...accepted...customs and practices in the medical profession...", failed to use "...the proper degree of medical skill...", failed "...to apply the proper tests...", failed to properly [*4]"...diagnose...", failed "...to have x-rays taken...", failed "...to diagnose myocardial infarction and pneumonia..." Collectively, these alleged failures clearly constitute medical treatment.
The Court has examined a copy of Plaintiff's Bill of Particulars and concludes that Plaintiff has supplied few details more than those alleged in it's Complaint. Plaintiff's Bill of Particulars has not afforded Defendant with a better understanding of Plaintiff's claim against it.
Accordingly, Defendant's motion is granted. Plaintiff is hereby directed:
[a] to file and serve a Certificate of Merit pursuant to §3012-a of the Civil Practice Law and Rules;
[b] to file and serve a Notice of Medical Malpractice Action (Civil Practice Law and Rules §3406) within sixty (60) days of the date hereof; and
[c] to serve a more specific Verified Bill of Particulars within forty-five (45) days of the date hereof.
The Preliminary Conference in this matter will be held on March 14, 2006 at 9:00 am.
Dated:New City, NY
February 27, 2006
E n t e r :
_______________________________
Hon. Alfred J. Weiner
Justice of the Supreme Court
To:
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