The defendant in this case is appealing an order that was made by the Supreme Court of Nassau County. The order directed the defendant to comply with a request for information prior to a hearing for medical malpractice.
The plaintiff in the case alleges that she was a patient at the Westchester defendant hospital that had been notified by her personal physician that she was unable to go to the bathroom without help. She states that a nurse that worked at the hospital allowed her to go to the bathroom without help in order to provide a urine specimen. While the plaintiff was walking to the bathroom she fell down and suffered from serious injuries which included a broken hip.
Case for Appeal
The only issue that is raised on appeal in this court is whether or not the defendant has to be present at a hearing before a medical malpractice panel. The alleged malpractice suit is against a nurse that is employed by the defendant hospital.
Until recently the law stated that a nurse could not be liable for a medical malpractice act. However, the new trend is that a medical malpractice panel be required when a hospital is named as a defendant, such as in this case. The recent cases have found that this type of panel must be conducted even if the malpractice case is alleged against a nurse or an emergency room attendant. For this reason, it is now assumed that a nurse can commit malpractice.
In this case, it is not alleged that the nurse did an act that is related to a medical diagnosis or that is within the expertise of a malpractice panel, she simply failed to follow an order from a physician.
After reviewing the facts of the case, it is determined that a nurse can commit medical malpractice and the alleged claims in this case set for a colorable claim. For this reason, the defendant hospital must appear before the medical malpractice panel. The original ruling of the Supreme Court of Nassau County is affirmed and the appeal by the defendant is denied.
Three of the four judges hearing this case concur with the decision and one justice dissents, voting to have the order reversed and holds that the defendant is not required to appear before the medical malpractice panel.
The dissenting judge states that while a nurse can be referred to a medical malpractice panel it is his opinion that the bill of particulars and pleadings must reveal that the plaintiff is making a claim that the nurse was performing specific duties that call for special training and talents. In this case the nurse simply handed the plaintiff a cup and asked for a urine specimen and then left the room, leaving the plaintiff to go to the bathroom without assistance. This is not a malpractice case, but one of simple negligence and should be carried forward as such.
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