Weiner v. Lenox Hill Hosp., 673 N.E.2d 914 (NY 1996). · Go Syfert
Weiner v. Lenox Hill Hosp., 673 N.E.2d 914 (NY 1996). Cases Citing This Book View Copy Cite
280 citation events (241 in the last 25 years) across 19 distinct courts.
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discussed Cited as authority (verbatim quote) SZYMBORSKI VS. SPRING MTN. TREATMENT CTR.
Nev. · 2017 · signal: see · quote attribution · 1 verbatim quote · confidence high
medical malpractice is but a species of negligence and no rigid analytical line separates the two.
examined Cited as authority (verbatim quote) SZYMBORSKI VS. SPRING MTN. TREATMENT CTR. (2×)
Nev. · 2017 · signal: see · quote attribution · 2 verbatim quotes · confidence high
medical malpractice is but a species of negligence and no rigid analytical line separates the two.
discussed Cited as authority (rule) Moore v. NYU Plastic Surgery Assoc.
N.Y. Sup. Ct., New York Cty. · 2026 · confidence medium
The parties agree that "the distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two" (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996] [internal quotes omitted]), but diverge in their view of where this case falls.
discussed Cited as authority (rule) Theodore O. Best v. Patrick Murray Doctor/Surgeon; Nyack Hospital; Good Samaritan Hospital; Helen Hayes Hospital
S.D.N.Y. · 2025 · confidence medium
“The distinction between these kinds of claims is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two.” Id. (quoting Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 787 (1996)) (internal quotation marks omitted).
examined Cited as authority (rule) Larisa Lev-Ary v. Manhattan Fertility Services LLC et al. (3×) also: Cited "see", Cited "see, e.g."
S.D.N.Y. · 2025 · confidence medium
Weiner v. Lenox Hill Hosp., 673 N.E.2d 914, 915 (N.Y. 1996).
discussed Cited as authority (rule) Maldonado v. Town Of Greenburgh
S.D.N.Y. · 2025 · confidence medium
App. Div. 2019) (internal quotation marks omitted) (quoting Weiner v. Lennox Hill Hosp., 673 N.E.2d 914, 916 (N.Y. 1996)). “[A]n action sounds in ordinary negligence when jurors can utilize their common everyday experiences to determine the allegations of a lack of due care,” whereas “an action sounds in medical malpractice where the determination involves a consideration of professional skill and judgment.” Id. at 202–03 (citations omitted). “[T]he New York Court of Appeals has held that a medical malpractice claim ‘may apply to acts or omissions committed by individuals and ent…
examined Cited as authority (rule) Butler v. Wyckoff Hgts. Med. Ctr. (3×) also: Cited "see"
N.Y. App. Div. · 2024 · confidence medium
The defendant appeals. "[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two" ( Weiner v Lenox Hill Hosp. , 88 NY2d 784, 787 [internal quotation marks omitted]; see Rabinovich v Maimonides Med.
discussed Cited as authority (rule) Wickland v. City of New York
S.D.N.Y. · 2024 · confidence medium
The misconduct Plaintiff alleges thus constitutes essential components of the “physician- patient relationship,” Stanley 507 N.Y.S.2d at 468 , because it relates to the Doctor Defendants’ medical examination, diagnosis, and treatment of Plaintiff, see Weiner, 88 N.Y.2d at 916 (explaining that where a defendant’s conduct “implicate[s] questions of medical competence or judgment linked to the treatment of [a patient],” the claim sounds in medical malpractice); see also La Russo v. St.
discussed Cited as authority (rule) Egypt v. United States
S.D.N.Y. · 2024 · confidence medium
“The distinction between these kinds of claims is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two.” Id. (quoting Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 787 (1996)) (internal quotation marks omitted).
examined Cited as authority (rule) Bledsoe v. Center for Human Reproduction (4×)
N.Y. App. Div. · 2024 · confidence medium
The "distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence" ( Weiner v Lenox Hill Hosp. , 88 NY2d 784, 787 [1996]).
examined Cited as authority (rule) Bledsoe v. Center for Human Reproduction (4×)
N.Y. App. Div. · 2024 · confidence medium
The "distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence" ( Weiner v Lenox Hill Hosp. , 88 NY2d 784, 787 [1996]).
discussed Cited as authority (rule) Fallon v. Five Star Mgt. Servs., LLC
N.Y. App. Div. · 2024 · confidence medium
The Court of Appeals has said that the "distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and 'no rigid analytical line separates the two' " ( Weiner v Lenox Hill Hosp. , 88 NY2d 784, 787 [1996], quoting Scott v Uljanov , 74 NY2d 673, 674 [1989]).
discussed Cited as authority (rule) Aykac v. City of New York
N.Y. App. Div. · 2023 · confidence medium
Plaintiff's negligence claim must be dismissed, as it "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment" and, thus, sounds in medical malpractice ( Weiner v Lenox Hill Hosp. , 88 NY2d 784, 788 [1996]).
discussed Cited as authority (rule) Aykac v. City of New York
N.Y. App. Div. · 2023 · confidence medium
Plaintiff's negligence claim must be dismissed, as it "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment" and, thus, sounds in medical malpractice ( Weiner v Lenox Hill Hosp. , 88 NY2d 784, 788 [1996]).
discussed Cited as authority (rule) Razzoli v. Richmond University Medical Center
E.D.N.Y · 2023 · confidence medium
The distinction between these kinds of claims “is a subtle one, for medical malpractice is but a species of negligence and ‘no rigid analytical line separates the two.’” Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 787 (1996) (quoting Scott v. Uljanov, 74 N.Y.2d 673, 674 (1989)).
discussed Cited as authority (rule) Rossy v. City of Buffalo (2×)
W.D.N.Y. · 2023 · confidence medium
In one case, the New York Court of Appeals held that there is a subtle distinction between medical malpractice and negligence, with “no rigid analytical line separat[ing] the two,” Scott v. Uljanov, 74 N.Y.2d 673, 674 , 543 N.Y.S.2d 369, 370 (1989); Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 787 , 650 N.Y.S.2d 629, 631 (1996).
discussed Cited as authority (rule) Mobius v. Quest Diagnostics Clinical Laboratories, Inc.
W.D.N.Y. · 2023 · confidence medium
Because loss of consortium claims are traditionally derived from “such common law torts as negligence,” Fleming, 80 N.Y.S.3d at 853, and 25 “medical malpractice is but a species of negligence[,]” Weiner v. Lenox Hill Hosp., 673 N.E.2d 914, 916 (N.Y. 1996), it follows that § 2805-d supports a derivative claim for loss of consortium.
examined Cited as authority (rule) Kaziyeva v. Temana Assoc., Inc. (3×)
N.Y. App. Div. · 2022 · confidence medium
Dry Harbor appeals from the May 6, 2019 order and the September 30, 2019 order. "[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two" ( Weiner v Lenox Hill Hosp. , 88 NY2d 784, 787 [internal quotation marks omitted]). "[A] claim sounds in medical malpractice when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician" to a particular patient ( id. at 788 [internal quotation…
discussed Cited as authority (rule) McNally v. Montefiore Nyack Hosp.
N.Y. App. Div. · 2022 · confidence medium
By order entered July 23, 2019, the Supreme Court granted Montefiore's motion, and the plaintiff appeals. "[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two" ( Weiner v Lenox Hill Hosp. , 88 NY2d 784, 787 [internal quotation marks omitted]; see Rabinovich v Maimonides Med.
discussed Cited as authority (rule) Xenias v. Mount Sinai Health Sys. Inc.
N.Y. App. Div. · 2021 · confidence medium
Plaintiff does not meaningfully dispute that, to the extent her claim is based on first responders' alleged improper treatment of the decedent, such treatment involves specialized medical knowledge and bears a substantial relationship to the rendition of medical treatment, and therefore a medical malpractice framework should be applied ( see generally Weiner v Lenox Hill Hosp. , 88 NY2d 784, 787-788 [1996]; Rabinovich v Maimonides Med.
discussed Cited as authority (rule) Xenias v. Mount Sinai Health Sys. Inc.
N.Y. App. Div. · 2021 · confidence medium
Plaintiff does not meaningfully dispute that, to the extent her claim is based on first responders' alleged improper treatment of the decedent, such treatment involves specialized medical knowledge and bears a substantial relationship to the rendition of medical treatment, and therefore a medical malpractice framework should be applied ( see generally Weiner v Lenox Hill Hosp. , 88 NY2d 784, 787-788 [1996]; Rabinovich v Maimonides Med.
cited Cited as authority (rule) Panetta v. Cassel
S.D.N.Y. · 2020 · confidence medium
See N.Y.C.P.L.R. § 214; Weiner v. Lenox Hill Hosp. 88 N.Y. 2d 784, 787 (1996) (negligence); Vigilant Ins.
cited Cited as authority (rule) Panetta v. Cassel
S.D.N.Y. · 2020 · confidence medium
See N.Y.C.P.L.R. § 214; Weiner v. Lenox Hill Hosp. 88 N.Y. 2d 784, 787 (1996) (negligence); Vigilant Ins.
discussed Cited as authority (rule) Topiel v. Caremount Med., P.C.
N.Y. App. Term. · 2020 · confidence medium
Ctr.</i>,__ AD3d __, 2019 NY Slip Op 08724 [2d Dept 2019];<i> see also Weiner v Lenox Hill Hosp.</i>, 88 NY2d 784, 787 [1996]), a cause of action based on acts such as an error in the supervision of blood collection, like a blood bank's failure to properly test or screen blood, sounds in negligence rather than medical malpractice (<i>Weiner v Lenox Hill</i>, 88 NY2d at 788-789 ).
discussed Cited as authority (rule) Lang-Salgado v. Mount Sinai Med. Ctr., Inc.
N.Y. App. Div. · 2018 · confidence medium
As described by plaintiff in her affidavit, the technician's conduct in placing plaintiff's body in a certain position, so as to obtain accurate imaging in an Xray directed by a physician at defendant hospital, bore a "substantial relationship to the rendition of medical treatment by a licensed physician" ( Weiner v Lenox Hill Hosp. , 88 NY2d 784, 788 [1996]; Chaff v Parkway Hosp ., 205 AD2d 571 [2d Dept 1994], lv dismissed in part, denied in part 84 NY2d 966 [1994]; see also Lewis-Burnett v West Side Radiology Assoc ., 106 AD3d 637 [1st Dept 2013]).
discussed Cited as authority (rule) Estate of Bell Ex Rel. Todzia v. WSNCHS North, Inc.
N.Y. App. Div. · 2017 · confidence medium
Generally, a claim will be deemed to sound in medical malpractice “when the challenged conduct ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician’ ” Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler v Bodnar, 65 NY2d 65 , 72 [1985]; Rey v Park View Nursing Home, 262 AD2d 624, 626-627 [1999]; Payette v Rockefeller Univ., 220 AD2d 69, 71-72 [1996]; Halas v Parkway Hosp., 158 AD2d at 516-517 ).
discussed Cited as authority (rule) Marshall v. Darrick E. Antell, MD, P.C.
N.Y. App. Div. · 2017 · confidence medium
While defendant nurse owed a duty of care to plaintiff in the ordinary negligence context when she was assisting plaintiff in plaintiff’s home after a surgical procedure (see Weiner v Lenox Hill Hosp., 88 NY2d 784, 787-788 [1996]; Coursen v New York Hosp.-Cornell Med.
cited Cited as authority (rule) Catherine Cright v. Tijuan Overly, M.D.
Tenn. Ct. App. · 2016 · confidence medium
Auth.], 121 S.W.3d [636,] 639 [(Tenn. 2003)] (quoting Weiner v. Lenox Hill Hosp., 673 N.E.2d 914, 916 ([N.Y.] 1996)).
discussed Cited as authority (rule) Koster v. Davenport (2×)
N.Y. App. Div. · 2016 · confidence medium
Hosp., 130 AD3d 713, 714-715 [2015], quoting Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996]).
examined Cited as authority (rule) B.F. v. Reproductive Medicine Associates of New York, LLP (5×)
N.Y. App. Div. · 2015 · confidence medium
However, I dissent insofar as I believe that it cannot be determined on this motion to dismiss whether additional causes of action alleged are duplicative of or subsumed within the cause of action alleging medical malpractice ( see Newell v Ellis Hosp ., 117 AD3d 1139 [3d Dept 2014]). "[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two" ( Weiner v Lenox Hill Hosp. , 88 NY2d 784, 787 [1996] [internal quotation marks omitted]).
discussed Cited as authority (rule) Martuscello v. Jensen
N.Y. App. Div. · 2015 · confidence medium
In the circumstances here presented, however, we also find it necessary to review Supreme Court’s initial determination, examining whether the claim sounds in negligence or malpractice. 5 “[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and ‘no rigid analytical line separates the two’ ” (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996], quoting Scott v Uljanov, 74 NY2d 673, 674 [1989]).
discussed Cited as authority (rule) Tracy v. Vassar Bros. Hospital
N.Y. App. Div. · 2015 · confidence medium
Contrary to Vassar’s contention, however, the Supreme Court properly concluded that, in addition to the medical malpractice allegations, the complaint also set forth allegations of ordinary negligence against Vassar, which were not time-barred. “[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence *715 and ‘no rigid analytical line separates the two’ ” (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996], quoting Scott v Uljanov, 74 NY2d 673, 674 [1989]).
discussed Cited as authority (rule) Piccoli v. Panos
N.Y. App. Div. · 2015 · confidence medium
Hosp., 130 AD3d 713 [2015] [decided herewith]), the allegations in the complaint pertaining to the number of surgeries Panos was scheduling for any given day, the allegations that Vassar failed to establish procedures regarding the number of surgeries that could be scheduled for a given day, and the allegations that Vassar failed to investigate or respond to warnings and complaints from its employees regarding Panos’s practices generally, all sound in ordinary negligence rather than medical malpractice (see Weiner v Lenox Hill Hosp., 88 NY2d 784, 788-789 [1996]; Bleiler v Bodnar, 65 NY2d 65 …
cited Cited as authority (rule) Annunziata v. Quest Diagnostics Inc.
N.Y. App. Div. · 2015 · confidence medium
Carter v Isabella Geriatric Ctr., Inc., 71 AD3d 443 , 444 [1st Dept 2010], citing Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996]).
discussed Cited as authority (rule) Bagley v. Rochester General Hospital
N.Y. App. Div. · 2015 · confidence medium
While the office practices of hospitals, physician medical groups, and their staff members may be embraced by the ordinary negligence standard (see Yaniv v Taub, 256 AD2d 273, 274 [1998]), we conclude that the challenged conduct at issue, including the alleged lack of consultation between the medical providers about decedent’s chronic underlying conditions, “bears a substantial relationship to the rendition of medical treatment by a licensed physician,” and the court thus properly determined that the cause of action alleged medical malpractice, not ordinary negligence (Weiner v Lenox Hil…
discussed Cited as authority (rule) Bagley v. Rochester General Hospital
N.Y. App. Div. · 2015 · confidence medium
While the office practices of hospitals, physician medical groups, and their staff members may be embraced by the ordinary negligence standard (see Yaniv v Taub, 256 AD2d 273, 274 [1998]), we conclude that the challenged conduct at issue, including the alleged lack of consultation between the medical providers about decedent’s chronic underlying conditions, “bears a substantial relationship to the rendition of medical treatment by a licensed physician,” and the court thus properly determined that the cause of action alleged medical malpractice, not ordinary negligence (Weiner v Lenox Hil…
discussed Cited as authority (rule) Toledo v. Mercy Hospital (2×)
N.Y. Sup. Ct. · 2014 · confidence medium
Analysis “[T]he distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and ‘no rigid analytical line separates the two’ ” (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996] [citations omitted]).
discussed Cited as authority (rule) New York State Workers' Compensation Board v. SGRisk, LLC
N.Y. App. Div. · 2014 · confidence medium
Professional malpractice “is but a species of negligence” (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996]; see Scott v Uljanov, 74 NY2d 673, 674 [1989]; Dries v Gregor, 72 AD2d 231, 235 [1980]; see also Simcuski v Saeli, 44 NY2d 442 , 453-454 [1978]), and, thus, does not generally encompass intentional acts.
discussed Cited as authority (rule) New York State Workers' Compensation Board v. SGRisk, LLC
N.Y. App. Div. · 2014 · confidence medium
Professional malpractice “is but a species of negligence” (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996]; see Scott v Uljanov, 74 NY2d 673, 674 [1989]; Dries v Gregor, 72 AD2d 231, 235 [1980]; see also Simcuski v Saeli, 44 NY2d 442 , 453-454 [1978]), and, thus, does not generally encompass intentional acts.
discussed Cited as authority (rule) Jeannie McGinnis Caldwell v. The Vanderbilt University d/b/a Vanderbilt University Medical Center
Tenn. Ct. App. · 2013 · confidence medium
The distinction between a medical malpractice claim and other forms of negligence is subtle, and no “‘rigid analytical line separates the two.’” Gunter, 121 S.W.3d at 639 (quoting Weiner v. Lenox Hill Hosp., 88 N.Y.2d 784, 788 (N.Y. 1996)).
discussed Cited as authority (rule) DeBoer v. Senior Bridges of Sparks Family Hospital, Inc.
Nev. · 2012 · confidence medium
Ass’n, 811 A.2d 1266, 1270 (Conn. 2002) (claim was not characterized under ordinary negligence principles because it involved medical diagnosis and judgment); Coleman v. Deno, 813 So. 2d 303, 315 (La. 2002) (claims against a healthcare facility not arising in medical malpractice are governed by general tort law); Dorris v. Detroit Osteopathic Hosp., 594 N.W.2d 455, 465 (Mich. 1999) (ordinary negligence claims “raise issues that are within the common knowledge and experience of the jury,” whereas medical malpractice claims “raise questions involving medical judgment”); Weiner v. Lenox…
cited Cited as authority (rule) Gold v. Park Avenue Extended Care Center Corp.
N.Y. App. Div. · 2011 · signal: cf. · confidence medium
Francis Hosp., 34 AD3d 714, 715 [2006]; Raus v White Plains Hosp., 156 AD2d 354, 354-355 [1989]; cf. Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996]).
discussed Cited as authority (rule) Dupree v. Giugliano (2×) also: Cited "see"
N.Y. App. Div. · 2011 · confidence medium
Moreover, the mere fact that the plaintiff and the defendant had a physician-patient relationship does not render every act committed by the defendant toward the plaintiff one of medical malpractice (cf. Weiner v Lenox Hill Hosp., 88 NY2d at 787-788 [although “a hospital in a general sense is always furnishing medical care to patients . . . not every act of negligence toward a patient would be medical malpractice” (internal quotation marks omitted)]; Elashker v Medical Liab.
discussed Cited as authority (rule) Lipe v. Albany Medical Center
N.Y. App. Div. · 2011 · confidence medium
A medical malpractice claim arises from conduct that “constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician,” whereas a negligence claim arises from “the hospital’s failure in fulfilling a different duty” (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996], quoting Bleiler v Bodnar, 65 NY2d 65 , 72-73 [1985]).
cited Cited as authority (rule) Alicia Mathes v. DRD Knoxville Medical Clinic
Tenn. Ct. App. · 2011 · confidence medium
Gunter, 121 S.W.3d at 641 (citing Weiner v. Lenox Hill Hosp., 673 N.E.2d 914, 916 (N.Y. 1996)); see also Estate of French, 2011 WL 238819, at *6 .
discussed Cited as authority (rule) Stukas v. Streiter
N.Y. App. Div. · 2011 · confidence medium
Indeed, the Court of Appeals has stated that “the distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and ‘no rigid analytical line separates the two’ ” (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996], quoting Scott v Uljanov, 74 NY2d 673, 674 [1989]).
discussed Cited as authority (rule) Estate of Martha S. French v. Stratford House (2×)
Tenn. · 2011 · confidence medium
Draper v. Westerfield, 181 S.W.3d 283, 290 (Tenn. 2005); Gunter, 121 S.W.3d at 639 (quoting Weiner v. Lenox Hill Hosp., 673 N.E.2d 914, 916 (N.Y. 1996)).
discussed Cited as authority (rule) Scivoli v. Levit
N.Y. App. Div. · 2010 · confidence medium
“In applying the statute of limitations, courts look to the reality or the essence of the action and not its form” (Pacio v Franklin Hosp., 63 AD3d 1130, 1132 [2009] [internal quotation marks omitted]). “[A] claim sounds in medical malpractice when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician” (Weiner u Lenox Hill Hosp., 88 NY2d 784, 788 [1996] [internal quotation marks omitted]; see Bleiler v Bodnar, 65 NY2d 65 , 73 [1985]; Pacio v Franklin Hosp., 63 AD3d at 1132 ).
cited Cited as authority (rule) Katrina Martins v. Williamson Medical Center
Tenn. Ct. App. · 2010 · confidence medium
Corp. Of Am., 121 S.W.3d 636, 639 (Tenn. 2003) (quoting Weiner v. Lenox Hill Hosp., 673 N.E.2d 914, 916 (N.Y. 1996)).
discussed Cited as authority (rule) Carter v. Isabella Geriatric Center, Inc.
N.Y. App. Div. · 2010 · confidence medium
Our own unaided review of plaintiffs claims, variously denominated as negligence, gross negligence, breach of contract, breach of warranty, inadequate hiring, failure to abide by mandatory rules, and failure to communicate significant medical findings, reveals that they all “bear[ ] a substantial relationship to the rendition of medical treatment” to plaintiffs decedent (Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996] [internal quotation marks omitted]; see Scalisi v New York Univ.
Retrieving the full opinion text from the archive…
David Weiner, Individually and as Administrator of the Estate of Dale J. Korn, Deceased, Respondent,
v.
Lenox Hill Hospital, Appellant, Et Al., Defendant
New York Court of Appeals.
Nov 19, 1996.
673 N.E.2d 914
POINTS OF COUNSEL, Aaronson Rappaport Feinstein & Deutsch, LLP, New York City (Steven C. Mandell of counsel), for appellant., Melito & Adolf sen P. C, New York City (Ignatius John Melito and Jodi A. Catalano of counsel), and Barton & Zasky, for respondent.
Clparick.
Cited by 135 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 65%
Citer courts: S.D. New York (1)

OPINION OF THE COURT

ClPARICK, J.

The issue on appeal is whether plaintiffs complaint against a hospital, alleging that the hospital failed to properly safeguard its blood supply from HIV contamination, sounds in medical malpractice or negligence for purposes of selecting the applicable Statute of Limitations. Because the challenged conduct was not linked to the medical treatment of a particular patient, we conclude that the claim sounds in negligence and that plaintiffs complaint is therefore timely.

As alleged in plaintiffs complaint and amplified in a bill of particulars, Dale J. Korn was a patient at Lenox Hill Hospital (Hospital) from October 1984 through January 1985 for treatment of a small bowel obstruction. During the course of treatment, the Hospital administered numerous blood transfusions to Korn. The Hospital obtained eight units of blood used in the transfusions from its own blood bank and seven units from New York Blood Center. At least one of the blood units administered to Korn was contaminated with the HIV virus. In May 1990, Korn was diagnosed with AIDS, and she died of AIDS-related illnesses on June 20, 1990.

In March 1991, plaintiff, as administrator of Korn’s estate, commenced this negligence action against the Hospital and New York Blood Center. Plaintiff alleged that the Hospital was negligent in failing to adequately screen and test the blood used in the transfusions. In its answer to plaintiffs complaint, the Hospital pleaded as an affirmative defense that plaintiffs claim was time barred under CPLR 214-a, the 2 [1] /2-year medical malpractice Statute of Limitations. Plaintiff thereafter moved to strike the Statute of Limitations defense, and the Hospital cross-moved to dismiss the complaint as untimely.

Supreme Court granted plaintiff’s motion to strike the Statute of Limitations defense and denied the Hospital’s motion to dismiss the complaint, holding that plaintiffs complaint is timely. The court reasoned that plaintiff’s claim sounds in negligence, not medical malpractice, and is governed by the 3-year limitations period of CPLR 214, which accrued upon[*787] Korn’s discovery of her HIV-positive status (see, CPLR 214-c). The Appellate Division affirmed for the reasons stated by Supreme Court, and certified the following question to this Court: "Was the order of the Supreme Court, New York County, as affirmed by this Court, properly made?” For the reasons that follow, we answer the certified question in the affirmative.

To determine which Statute of Limitations governs plaintiffs claim against the Hospital, we must decide whether the claim sounds in medical malpractice or negligence. The Hospital contends that plaintiffs claim sounds in medical malpractice, governed by the 21/2-year limitations period of CPLR 214-a, and that the claim accrued under the common-law accrual rule at the time of injury (see, Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 216-218, cert denied 374 US 808; see also, CPLR 214-c [5]). Therefore, according to the Hospital, plaintiffs claim accrued no later than the last blood transfusion administered in January 1985 and expired no later than July 1987, rendering the March 1991 complaint untimely. In response, plaintiff counters that the complaint sounds in negligence, governed by the 3-year limitations period of CPLR 214. Moreover, plaintiff contends that because the injury was "caused by the latent effects of exposure to any substance,” namely HIV, the claim accrued upon discovery of the injury (see, CPLR 214-c [2]). According to plaintiff, therefore, the complaint — filed within one year of Korn’s discovery of her HIV-positive status — is timely. [1]

In analyzing the issue on appeal, we initially note that the distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and "no rigid analytical line separates the two” (Scott v Uljanov, 74 NY2d 673, 674). Nevertheless, this Court has[*788] recognized that although a "hospital in a general sense is always furnishing medical care to patients * * * not every act of negligence toward a patient would be medical malpractice” (Bleiler v Bodnar, 65 NY2d 65, 73). Thus, a claim sounds in medical malpractice when the challenged conduct "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician” (id., at 72). By contrast, when "the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the hospital’s failure in fulfilling a different duty,” the claim sounds in negligence (id., at 73; see, Scott v Uljanov, supra, 74 NY2d, at 675).

Based on these principles, we agree with the courts below that the complaint in this case sounds in negligence, not medical malpractice. Plaintiff’s complaint essentially challenges the Hospital’s "failure to adopt and prescribe proper procedures and regulations” for the collection of blood, a type of claim that we have recognized as sounding in negligence (see, Bleiler v Bodnar, supra, 65 NY2d, at 73). The core issue in this case— the adequacy of the Hospital’s blood testing and screening procedures — does not implicate questions of medical competence or judgment linked to the treatment of Korn, but turns instead on the Hospital’s independent duties as a blood-collection center. Unlike the inquiry in a medical malpractice case, whether the Hospital breached its duty to exercise due care in its blood-collection activities does not in any measure depend on an analysis of the medical treatment furnished to Korn. [2]

Moreover, although the Hospital correctly points out that a physician must supervise the process of blood collection (see, e.g., 10 NYCRR 58-2.1 [s]; 58-2.2 [a]), this requirement does not resolve the question of whether the challenged conduct "bears a substantial relationship to the rendition of medical treatment” to a particular patient, which remains the determinative question on appeal (Bleiler v Bodnar, supra, 65 NY2d, at 72). Notably, the regulatory requirement of physician oversight applies equally to independent blood banks, yet, as the Hospital[*789] recognizes, a claim against a blood bank for failure to properly screen and test its blood supply would sound in negligence, not medical malpractice.

Similarly, we reject the Hospital’s argument that plaintiffs claim necessarily sounds in medical malpractice because expert testimony of a medical nature will be required to assist the jury in understanding the particulars of the blood-collectión process (see, Payette v Rockefeller Univ., 220 AD2d 69, 73-74 [analyzing shortcomings of this expert-testimony approach]; see also, McLaughlin, 1990 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C214-a:1, 1996 Cum Ann Pocket Part, at 124 [same]). In this case, the need for expert testimony signifies only that the technical and scientific nature of the blood-collection process is beyond the ken of the average juror, not that the claim sounds in medical malpractice (see, De Long v County of Erie, 60 NY2d 296, 307).

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.

Order affirmed, etc.

1

. The discovery accrual rule of CPLR 214-c, upon which plaintiff relies, provides in pertinent part: "Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury * * * caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body * * * must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” (CPLR 214-c [2]). On this appeal, the Hospital does not challenge the conclusion of the courts below that HIV is a "substance” within the meaning of CPLR 214-c (see, Di Marco v Hudson Val. Blood Servs., 147 AD2d 156; Prego v City of New York, 147 AD2d 165; accord, Jensen v General Elec. Co., 82 NY2d 77, 83).

2

. Thus, the Hospital’s reliance on Mondello v New York Blood Ctr. (80 NY2d 219), also a case involving the transfusion of HIV-contaminated blood, is misplaced. In Mondello, this Court held that a hospital and an independent blood bank were not united in interest for Statute of Limitations purposes because of the distinct role of each in the collection, distribution, and delivery of blood (id., at 227-228). In this case, however, plaintiff challenges the Hospital in its role as a blood bank.