 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Angell v. State12/28/2000
eging that the State failed to properly supervise and medicate decedent. The State successfully moved for summary judgment upon a finding that the action sounded in medical malpractice, not ordinary negligence, and claimant failed to show that it deviated from an acceptable medical standard of care. The court further granted summary judgment dismissing all claims of medical negligence. Claimant appeals.
A claim sounds in medical malpractice, not ordinary negligence, "when it ' constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician"' (Scott v Uljanov, 74 NY2d 673, 675, quoting Bleiler v Bodnar, 65 NY2d 65, 72). Where, as here, the duty alleged to have been breached arises from the physician-patient relationship or from the rendition of medical services by a licensed physician, with allegations stemming from an "improper assessment of the decedent's mental and physical condition and the degree of supervision" (Rey v Park View Nursing Home, 262 AD2d 624, 626), the claim is grounded in medical malpractice (see, Scott v Uljanov, supra; Rey v Park View Nursing Home, supra; Smee v Sisters of Charity Hosp. of Buffalo, 210 AD2d 966).
Finding that the proof submitted in connection with the State's motion satisfied its burden to have judgment rendered as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557), we review the opposition submitted by claimant. The affidavit of Marvin Denberg, a licensed psychologist, opined that decedent should not have been transferred to a unit with decreased supervision in light of his history of seizures, hallucinations and religious delusions. He further found that the lack of continuous supervision was a "deviation from acceptable care" and that such decreased supervision impeded "communication among staff". Claimant also propounded the affidavit of Sandra Peterson, a registered nursing supervisor. She emphasized that the disorientation noted in decedent's medical records the day prior to his death should have triggered an increase in his supervision, not a decrease, since this behavior, unusual for decedent, was symptomatic of the onset of a seizure. Had he been more closely supervised, she opined that he would have been protected from injury .
In our view, this proffer was insufficient. The gravamen of these claims is that the State failed to properly assess decedent's mental and physical condition and that it wrongly assessed the need for a lower degree of supervision. As this action in medical malpractice failed to establish an acceptable medical standard from which the State may be found to have deviated or that the raised level of one enzyme in decedent's liver brought about the injuries (see, Parker v State of New York, 242 AD2d 785, 786), the motion was properly granted. With regard to the claim of medical negligence, we find no evidence to establish that BPC failed to provide that level of supervision called for in decedent's treatment plan and, accordingly, we are of the view that the Court of Claims appropriately dismissed said claim (see, Toth v Community Hosp. at Glen Cove, 22 NY2d 255, 264-265).
Crew III, J.P., Mugglin, Rose and Lahtinen, JJ., concur.
ORDERED that the order is affirmed, without costs.
Page 1 2 New York Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|