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October 26, 2021

Fourth Department Distinguishes Medical Malpractice From Ordinary Negligence in Nursing Home Case

In its October 1, 2021, decision in Noga v. Brothers of Mercy Nursing & Rehabilitation Ctr.1, the Appellate Division, Fourth Department modified the order of the Supreme Court, Erie County that granted the plaintiff leave to reargue, denied the nursing home defendants’ motion for summary judgment, and reversed the order dismissing the complaint. In its decision, the Fourth Department determined that some of the plaintiff’s causes of action alleging medical malpractice and negligence against the nursing home should have been dismissed.

In Noga, the decedent’s estate filed suit against the nursing home defendants seeking damages for the decedent’s physical injuries and ultimate death, alleging negligence after the decedent, a double amputee resident of the nursing home, fell from his wheelchair while left unsupervised, sustained a left shoulder fracture, and died two days later.  

The Fourth Department determined that the plaintiff’s claims alleging failures relative to the appropriateness of services rendered to the decedent, adequacy of staffing, and adequacy of preparing a care plan sounded in medical malpractice “because they challenged the defendants’ assessment of the decedent’s need for supervision.” It further concluded that the nursing home’s motion should have been granted with respect to the plaintiff’s claims sounding in medical malpractice except for those claims relating to proper supervision and the failure to revise the decedent’s care plan.  

Regarding the plaintiff’s claims that the nursing home defendants were negligent in “failing to follow the care plan and to equip the decedent’s wheelchair with a seatbelt,” the Fourth Department held these claims sounded in ordinary negligence “as they relate[d] to the defendants’ general duty to safeguard the nursing home residents. . . .” It further determined that the lower court should have granted the defendants’ motion with respect to the claim for failure to equip the decedent’s wheelchair with a seatbelt, finding that the plaintiff expert failed to opine how a nonrestrictive lap belt would have prevented the accident. However, the Fourth Department concluded that the lower court appropriately denied the nursing home defendants’ motion with respect to the claim involving the care plan, noting that the nursing home defendants’ papers demonstrated the decedent was left unsupervised for a period longer than permitted by his care plan.  

The Noga decision is an example of how courts must analyze claims for medical malpractice using different criteria than when analyzing claims sounding in ordinary negligence.

If you have any questions regarding the content of this alert, please contact Elizabeth Vulaj, associate, at; Tara Sciortino, counsel, at; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; Tom Cronmiller, Professional Liability Practice Area chair, at; or another member of the firm’s Torts & Products Liability Defense or Professional Liability Practice Areas. 

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