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November 12, 2021

The Second Department Addresses Whether Cause of Action Sounded in Malpractice or Negligence

In its recent decision in Losak v. St. James Rehabilitation & Healthcare Ctr.1 , the Appellate Division, Second Department addressed the trending issue of whether the plaintiff’s cause of action sounded in malpractice or negligence. The Second Department reversed the lower court’s decision insofar as it denied the defendant’s motion for summary judgment seeking dismissal of that part of the complaint that alleged a failure to provide the plaintiff’s decedent with a bed alarm.

In Losak, the decedent’s estate filed suit against the rehabilitation center defendant seeking damages for the decedent’s physical injuries and ultimate death, alleging negligence and medical malpractice after the decedent fell while walking back to his bed unattended.

The Second Department determined that at the core of the claim against the rehabilitation center defendant that it “failed to properly provide the decedent with a bed alarm which would have prevented his fall” was whether it properly assessed the decedent’s condition and need for supervision to prevent falling, which “sounds in medical malpractice.”

The rehabilitation center defendant met its prima facie burden by submitting expert proof. The plaintiff failed to submit expert proof rebutting the defense expert’s opinions and, therefore, did not raise a triable issue of fact.

The Losak decision is yet another example of how courts are scrutinizing claims to determine whether they sound in malpractice or ordinary negligence, since they are distinguishable and the analysis of each require separate, distinct criteria.

If you have any questions regarding the content of this alert, please contact 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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