In D'Elia v. Menorah Home and Hospital for the Aged & Infirm , Eileen D'Elia filed suit after her 91-year old relative died while in Menorah Home's care.
Apparently, the senior was "suffering from serious medical conditions" and her daughters provided her with round-the-clock assistance.
On the night of the senior's death, one of her daughters was planning on staying overnight at Menorah Home, but was asked to leave by the staff and given assurances her mother would receive "special care."
Later that evening, on her way to the bathroom, the 91-year old slipped and fell and wasn't discovered for some five hours. (The woman suffered a broken hip and died shortly later of renal and heart failure.)
While D'Elia alleged both medical and ordinary negligence, the Kings County Supreme Court found neither to be present and granted Menorah Home's motion to dismiss the case.
On appeal, the Appellate Division, Second Department, found that while "medical negligence" may not have been present, the Home might have been guilty of "ordinary negligence."
The court noted that "the distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by law persons." In this instance, Menorah Home failed to provide any "safety devices or tools to protect the frail, elderly decedent from the risk of falls." That was not a function of any special skills or knowledge, but was a reasonable duty of a nursing home specializing in elder care. Since there were questions whether that obligation was satisfied in this case, the issue was left for a formal hearing or trial.
In a dissenting opinion, two justices found the dismissal should have been upheld. Since its expert confirmed that "Menorah Home's staff did not depart from accepted medical practice" when it decided the senior was too frail to even move from her bed, wasn't at "high risk" of falling and didn't require restraints or other safety devices.
Will Menorah Home be taking a trip to the Court of Appeals?
To download a copy of the Appellate Division's decision, please use this link: D'Elia v. Menorah Home and Hospital for the Aged & Infirm