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ALTHOUGH THE HOSPITAL WAS NOT LIABLE IN ORDINARY NEGLIGENCE FOR RELEASING PLAINTIFF AND NOT ENSURING A SAFE RETURN HOME, THE COMPLAINT STATED A CAUSE OF ACTION IN MEDICAL MALPRACTICE.

The Fourth Department, over a dissent, determined the motion to dismiss the medical malpractice cause of action was properly denied. The negligence cause of action against the hospital stemming from the same facts had previously been dismissed. Plaintiff was released from the hospital and found two hours later, disoriented and frost-bitten. The hospital, in the negligence cause of action, was found to have no duty to prevent plaintiff from leaving the hospital against medical advice and no duty to ensure plaintiff’s safe return home. However, allegations that the assessment plaintiff’s medical and mental status and the discharge of plaintiff from the hospital were not in accordance with good and accepted medical practice stated a cause of action in medical malpractice:

Although “no rigid analytical line separates the two” … , we have long recognized the distinction between an ordinary negligence cause of action against a hospital and/or a physician … and a medical malpractice cause of action against a hospital and/or a physician … . We note that there is no prohibition against simultaneously pleading both an ordinary negligence cause of action and one sounding in medical malpractice … . It is simply beyond cavil “that an action for personal injuries may be maintained, in the proper case, on the dual theories of medical malpractice or simple negligence where a person is under the care and control of a medical practitioner or a medical facility” … . Moreover, in a proper case, both theories may be presented to the jury … .

Here, the medical malpractice cause of action alleges, inter alia, that defendant did not properly assess plaintiff’s medical and mental status and rendered medical care that was not in accordance with good and accepted medical practice, and that the discharge of plaintiff was not in accordance with good and accepted medical practices. Ingutti v Rochester Gen. Hosp., 2016 NY Slip Op 08615, 4th Dept 12-23-16

NEGLIGENCE (MEDICAL MALPRACTICE, ALTHOUGH THE HOSPITAL WAS NOT LIABLE IN ORDINARY NEGLIGENCE FOR RELEASING PLAINTIFF AND NOT ENSURING A SAFE RETURN HOME, THE COMPLAINT STATED A CAUSE OF ACTION IN MEDICAL MALPRACTICE)/MEDICAL MALPRACTICE (ALTHOUGH THE HOSPITAL WAS NOT LIABLE IN ORDINARY NEGLIGENCE FOR RELEASING PLAINTIFF AND NOT ENSURING A SAFE RETURN HOME, THE COMPLAINT STATED A CAUSE OF ACTION IN MEDICAL MALPRACTICE)

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GOLFER ASSUMED THE RISK OF LOSING CONTROL OF HER GOLF CART ON A WET SLOPE. AN ORDER IS NOT ABANDONDED PURSUANT TO 22 NYCRR 202.48 UNLESS THE ORDER DIRECTS...