So you’re attempting to navigate the steps leading down into one of NYC’s subway stations, and you fall and hurt yourself because the steps are of inconsistent heights, and there is no handrail within reach when you lose your balance.  You bring a law suit, during which your expert testifies that the steps at issue do not comply with the New York City Building Code, which in these circumstances, mandated the installation of a handrail in the middle of the steps, where you had fallen, and called for consisitent riser heights for the steps.  You obtain a plaintiff’s verdict, even though you were found to have been 20% at fault yourself, and you can expect some money for your trouble, right?

Wrong.  According to Garcia v. New York City Transit Authority , NY Slip Op 05506 (2d Dept. 2009), decided on June 30, 2009, such a judgment must be reversed, because the protections found within the Building Code “‘shall not extend to…subways or structures appurtenant thereto’ (New York City Charter Sect. 643[7]).”  Naturally, the Second Department found that the subway steps were “appurtenant” to the subway station.  Make sense?  Not to me.  And the Court neglected to mention any law that doesmandate compliance with basic safety regulations in the building and maintaining of subways and their “appurtenant” structures.  What a nice gift to the Transit Authority.

The Second Department also tackled the issue of whether a negligent act in a medical setting was standard negligence, or medical malpractice–an issue just addressed by the Court of Appeals (see my June 26, 2009 post).  In Pacio v. Franklin Hospital, et al. NY Slip Op 05527 (2d Dept. 2009), decided June 30, 2009, plaintiff, who had been paralyzed in an earlier motor vehicle accident, fell at home and was treated for just over one week at Franklin Hospital, spent time at a nursing home, and ultimately transferred to North Shore University Hospital at Glen Cove, where pressure ulcers that had begun developing after plaintiff’s week-long confinement to Franklin Hospital worsened, prompting the need for surgeries.

When plaintiff chose to add North Shore as a defendant in the suit against Franklin Hospital, more than 2 and 1/2 years, but less than 3 had passed since his treatment there (as a reminder, the medical malpractice statute of limitations is 2 and 1/2 years).  North Shore moved for summary judgment dismissal, claiming that plaintiff’s claims were time barred, since they were grounded in medical malpractice.  As to one of the three claims against North Shore, plaintiff asserted that it was grounded in negligence, and not malpractice, so that the 3-year statute of limitiations would apply. Plaintiff reasoned that this remaining claim concerned North Shore’s alleged failure to follow its own protocols in caring for plaintiff’s pressure ulcers, such that no expert medical testimony was called for.

The Second Department ruled that the lower court had been correct when it granted North Shore’s motion for summary judgment dismissal based on the medical malpractice statute of limitations, reasoning that the comprehensive hospital protocols concerning pressure ulcers consituted a “substantial relationship to the rendition of medical treatment.”  The Court pointed to the various duties of nurses and aides who were obliged to continuously inspect the skin, use moisturizers, utilize proper technique for positioning, and maintain proper “tissue load management.”

To me, this decision could have come down on either side.  After all, how different is failing to position a patient properly, and thereby causing injury, from failing to maintain proper placement of a bed rail, allowing the patient to fall to the floor and become injured–a scenario that is usually seen as negligence?  There is only one consistent element in these cases.  If someone is injured in a medical setting, and proceeds under a standard negligence theory, chances are good that he or she has blown the medical malpractice statute of limitations.

And a last note.  As we hit the season of outdoor amusement parks, the First Department has reaffirmed a lesson we should all know.  When you sign that waiver form before jumping into your motorized go-kart–you know, the one in which you assume all risk, waive all claims for injury, indemnify the operator of the concession, and agree not to sue–you have not truly waived any of those things, according to Garnett v. Strike Holdings LLC NY Slip Op 05630 (1st Dept. 2009), decided July 2, 2009.  Such waivers are “‘void as against public policy and wholly unenforceable’ against plaintiff[s] by reason of General Obligations Law Sect. 5-326 (citations omitted).”

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