Skip to Main Content
Services Talent Knowledge
Site Search
Menu

Alert

Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

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 tsciortino@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; Tom Cronmiller, Professional Liability Practice Area chair, at tcronmiller@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense or Professional Liability Practice Areas. 
 

Featured Media

Alerts

EPA Lists Two New "Forever Chemicals" Under CERCLA

Alerts

NYS Governor Hochul Announces Final RFP for New Certified Community Behavioral Health Clinics

Alerts

The Second Department Affirms Successful Storm in Progress Defense of Slip and Fall Case

Alerts

The New York FY 2025 Budget – CDPAP FIs Under Threat

Alerts

Website Accessibility Lawsuits: Several "Tester" Plaintiffs—Anderson, Beauchamp, Murray, Angeles, Monegro, and Bullock—Targeting Businesses in Recent Flurry of Lawsuits

Alerts

Updated Bulletin on Tracking Technologies in the Health Care Industry

We're Growing in DC!

We’re excited to announce Barclay Damon’s combination with Washington DC–based Shapiro, Lifschitz & Schram. SLS’s 10 lawyers, three paralegals, and four administrative staff will join Barclay Damon while maintaining their current office in DC’s central business district. Our clients will benefit from SLS’s corporate, real estate, finance, and construction litigation experience and national energy-industry profile, and their clients from our full range of services.

Read More

This site uses cookies to give you the best experience possible on our site and in some cases direct advertisements to you based upon your use of our site.

By clicking [I agree], you are agreeing to our use of cookies. For information on what cookies we use and how to manage our use of cookies, please visit our Privacy Statement.

I AgreeOpt-Out