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Weekly UpdatesCASE ON POINT: Kash v. Jewish Home & Inf., 2009-NY-212.309 (2/11/2009)--NY
CASE FACTS: In February 2006, Gertrude Kash became a long term resident of Jewish Home and Infirmary of Rochester N.Y., Inc., which is owned and operated by defendant Jewish Health Care System of Rochester, Inc. (collectively, Jewish Home). Gertrude alleged that she suffered from a bladder retention problem and thus, required straight catheterization in order to void her bladder. On March 5, 2005, however, a member of the nursing staff failed to perform the procedure, and Gertrude was required to leave her bed later in the evening in order to use the bathroom. While in the process of leaving her bed, her bladder spontaneously emptied onto the floor, and she slipped and fell. Over the next few days she underwent diagnostic evaluations but was encouraged by the medical staff to attempt to ambulate and to attend physical therapy sessions. One of those evaluations was performed by Dr. Lars-Goran Larson, who allegedly failed to perform a neurological exam or even to note the patient's fall in his documentation of the evaluation. The patient's condition eventually worsened, causing her to experience severe pain. She fell again on March 12, 2006, while attempting to ambulate. On March 15, 2006, she underwent a CT scan that revealed "a compression fracture of T-7 and a compression deformity of T-11." Nevertheless, nursing home personnel did not hospitalize her and allegedly "failed to follow any spinal cord precautions to guard against spinal cord injury. "On March 18, 2006, the patient was visited by her son-in-law, a physician who performed a neurological examination and ordered that she be rushed to a hospital for emergency evaluation of a potential spinal cord injury. At the hospital, the patient "was diagnosed with compression fractures of her thoracic spine ... [as well as] a permanent spinal cord injury resulting in paraplegia and loss of bladder and bowel function." The patient commenced suit against the Jewish Home asserting a cause of action for medical malpractice. Specifically, she alleged that the defendants failed "to properly perform straight catheterization as ordered by the nursing staff ... [which] was a departure from the standard of care for a reasonably prudent nurse or nursing home ... [and] resulted in the patient slipping and falling and suffering an injury to her back." The patient further alleged that "[t]he failure of the defendants to diagnose and treat [her] compression fractures and ... to provide spinal precautions after her first fall was a departure from the [relevant] standard of cared ... and resulted in her permanent spinal cord injury." Five months after filing suit the plaintiff moved for leave to amend her complaint by adding a cause of action against the Jewish Home pursuant to Public Health Law Section 2801-d. The Supreme Court of New York denied the motion.
COURT'S OPINION: The Appellate Division of the Supreme Court of New York affirmed the order of the Supreme Court of New York denying the plaintiff's motion. The court held, inter alia, that the court had previously decided that a plaintiff could not pursue both actions. Accordingly, the court rejected the plaintiff's contention that the court should ignore the doctrine of stare decisis in this case. The court found that there were no compelling reasons to consider ignoring the rule. The court observed that the purpose of the Public Health Law was to allow one who had been injured as a direct result of medical treatment, which did not meet the standard of care, and did not warrant pursuit because of the lack of a sufficient amount of monetary damages resulting from the failure of a medical provider to meet the standard of care, to pursue a remedy under the Public Health Law. The court concluded that this was not such a case.
LEGAL COMMENTARY: The majority relied on the purportedly clear language of the statute and concluded that the plaintiff was not precluded from asserting a claim under the Public Health Law inasmuch as the remedies provided for in that action "are in addition to and cumulative with any other remedies available to a patient. The court concluded that a Public Health Law cause of action should be limited to those cases in which recovery under a common-law cause of action would prove difficult or inadequate. Simply alleging a violation of a right enumerated in the Public Health Law is not enough to allow a Public Health Law cause of action to stand. The provisions of the Public Health Law encompasses most negligence actions brought against a health care facility. In determining whether a Public Health Care cause of action would encompasses case, the court found that this was a straightforward medical malpractice case against the facility, rather than a case envisioned by the Legislature as appropriate for a Public Health Care Law cause of action. This was not a case where an attorney would need the financial incentives provided after success in a Public Health Law Suit.
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law Practicing law for over 40 years. he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers. Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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