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December 2, 2015

Medical Provider Exposed To Malpractice Liability Where Plaintiff Fell From Examination Table

In Martuscello v. Jensen, 2015 N.Y. Slip Op. 07711 (3d Dep't 2015), the plaintiff sued her health care provider after she fell from an examination table during a routine physical. Plaintiff, who was then 81 years old, alleged that she told the attending medical assistant that she did not feel secure on the table but that the assistant nevertheless left her in the room alone.

At trial, over Plaintiff's objection, the Court based its jury instructions on the standard for premises liability. The jury was asked to determine whether the health care provider's premises was reasonably safe and, as part of that assessment, whether the medical assistant provided reasonable assistance to Plaintiff. The trial court rejected Plaintiff's argument that the Defendant's duty – as a medical provider who had treated Plaintiff for over a decade – was different from a duty arising solely out of a dangerous condition. As a result, the trial court refused to allow Plaintiff to submit expert testimony as to how her various medical conditions increased her risk of falling.

After the jury returned a verdict in Defendant's favor, Plaintiff appealed. The Appellate Division, Third Department, agreed that the trial court's jury charge was inappropriate and ordered a new trial. The Court held that a medical facility "used by persons who may be ill, disabled or otherwise vulnerable has a duty to exercise reasonable care and diligence in safeguarding a patient, based in part on the capacity of the patient to provide for his or her own safety." The degree of reasonable care a facility must exercise is measured by the staff's knowledge of the patient's physical or mental infirmities.

The Court found that Plaintiff's complaint sounded in malpractice, rather than in negligence, as the assessment of her risk of falling was a medical determination. Her treating doctor's awareness of Plaintiff's various conditions and complaints, coupled with the medical knowledge that comes with being a physician, may give rise to a duty to provide Plaintiff with more assistance or supervision. Consequently, the Court held, Plaintiff should have been permitted to present expert medical testimony in order to establish that the Defendant breached its duty of care as a medical provider.

Defense counsel and insurers should be mindful of the Martuscello decision in evaluating claims related to injuries at medical facilities. Although the claim may appear to sound in premises liability, providers may face malpractice liability if they could have prevented the accident through the exercise of their medical judgment.

If you require further information regarding the content of this Legal Alert, please contact either of the Co-Chairs of the Torts & Products Liability Defense Practice Area, Thomas J. Drury, at (716) 858-3845 or, or Matthew J. Larkin, at (315) 425-2805 or, or the Chair of the Professional Liability Practice Area, Dennis R. McCoy, at (716) 566-1560 or, or the author of this alert Benjamin D. Heffley at (518) 429-4275 or


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