        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

677
CA 15-01950
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, AND CARNI, JJ.


FREDERICK INGUTTI AND MARY INGUTTI,
PLAINTIFFS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

ROCHESTER GENERAL HOSPITAL, DEFENDANT-APPELLANT.


OSBORN, REED & BURKE, LLP, ROCHESTER (JENNIFER M. SCHWARTZOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MCCONVILLE, CONSIDINE, COOMAN & MORIN, P.C., ROCHESTER (PETER J.
WEISHAAR OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered August 3, 2015. The order, insofar as appealed
from, denied that part of the motion of defendant seeking dismissal of
plaintiffs’ second, fourth and fifth causes of action.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Memorandum: Plaintiffs commenced this negligence and medical
malpractice action seeking damages for injuries sustained by Frederick
Ingutti (plaintiff) when he left defendant hospital after signing a
form entitled “Release From Responsibility For Discharge” (RFRD) and
was found approximately two hours later by the police, disoriented and
with frostbitten fingers that required partial amputation. On a prior
appeal, we held that Supreme Court erred in denying defendant’s motion
for partial summary judgment dismissing the first cause of action, for
ordinary negligence (Ingutti v Rochester Gen. Hosp., 114 AD3d 1302,
appeal dismissed 23 NY3d 929). After our decision, defendant moved to
dismiss the remaining causes of action in the complaint pursuant to
CPLR 3211 (a) (7), which alleged medical malpractice, gross
negligence, lack of informed consent and loss of consortium. The
court granted the motion only in part, dismissing the cause of action
for gross negligence. We affirm.

     In the prior appeal, in the context of defendant’s motion for
partial summary judgment seeking dismissal of the ordinary negligence
cause of action, we held that, pursuant to Kowalski v St. Francis
Hosp. & Health Ctrs. (21 NY3d 480, 484-485), defendant did not have a
duty to prevent plaintiff from leaving the hospital against medical
advice or to ensure plaintiff’s safe return home (Ingutti, 114 AD3d at
1302-1303). Here, we are now called upon to assess plaintiffs’
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                                                         CA 15-01950

medical malpractice cause of action in the context of defendant’s CPLR
3211 (a) (7) motion to dismiss. Defendant contends that Kowalski is
dispositive of plaintiffs’ medical malpractice cause of action and
that there is no distinction between the duty analysis with respect to
plaintiffs’ ordinary negligence and medical malpractice causes of
action.

     Our standard of review is well established: “[o]n a motion to
dismiss pursuant to CPLR 3211, the pleading is to be afforded a
liberal construction” (Leon v Martinez, 84 NY2d 83, 87, citing CPLR
3026). Courts must “accept the facts as alleged in the complaint as
true, accord plaintiffs the benefit of every possible favorable
inference, and determine only whether the facts as alleged fit within
any cognizable legal theory” (id. at 87-88). In reviewing a motion
under CPLR 3211 (a) (7), a court may freely consider affidavits
submitted by plaintiffs to remedy any defects in the complaint (see
Rovello v Orofino Realty Co., 40 NY2d 633, 635), and “the criterion is
whether the proponent of the pleading has a cause of action, not
whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d
268, 275).

      Although “no rigid analytical line separates the two” (Scott v
Uljanov, 74 NY2d 673, 674), we have long recognized the distinction
between an ordinary negligence cause of action against a hospital
and/or a physician (see Mancusco v Kaleida Health, 100 AD3d 1468,
1468-1469; White v Sheehan Mem. Hosp., 119 AD2d 989, 989) and a
medical malpractice cause of action against a hospital and/or a
physician (see Harrington v St. Mary’s Hosp., 280 AD2d 912, 912, lv
denied 96 NY2d 710; Smee v Sisters of Charity Hosp. of Buffalo, 210
AD2d 966, 967). We note that there is no prohibition against
simultaneously pleading both an ordinary negligence cause of action
and one sounding in medical malpractice (see e.g. Piccoli v Panos, 130
AD3d 704, 705-706; Miller v Albany Med. Ctr. Hosp., 95 AD2d 977, 978-
979; see generally CPLR 3014). It is simply beyond cavil “that an
action for personal injuries may be maintained, in the proper case, on
the dual theories of medical malpractice or simple negligence where a
person is under the care and control of a medical practitioner or a
medical facility” (Twitchell v MacKay, 78 AD2d 125, 127). Moreover,
in a proper case, both theories may be presented to the jury (see
Kerker v Hurwitz, 163 AD2d 859, 859-860, amended on rearg 166 AD2d
931).

     Here, the medical malpractice cause of action alleges, inter
alia, that defendant did not properly assess plaintiff’s medical and
mental status and rendered medical care that was not in accordance
with good and accepted medical practice, and that the discharge of
plaintiff was not in accordance with good and accepted medical
practices. In opposition to defendant’s motion, plaintiffs submitted
the affidavit of a physician specializing in psychiatry and forensic
psychiatry who attested to numerous deviations from the standard of
care in the treatment and assessment of plaintiff by defendant prior
to the time that plaintiff signed the RFRD. We note that, although
defendant contends that plaintiff was not “discharged,” defendant’s
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                                                         CA 15-01950

own RFRD belies that contention. Plaintiffs also submitted the
affidavit of a registered nurse who attested to numerous deviations
from the standard of nursing care by defendant’s staff in the
treatment and discharge planning of plaintiff, all of which occurred
leading up to and prior to the time that plaintiff signed the RFRD.
Contrary to defendant’s contention, we conclude that those allegations
together with the complaint state a cause of action for medical
malpractice with a duty and standard of care distinct from that
alleged in plaintiffs’ now-dismissed ordinary negligence cause of
action (see Fox v White Plains Med. Ctr., 125 AD2d 538, 538-539).

     Defendant further contends that the fourth cause of action, for
lack of informed consent (see Public Health Law § 2805-d), should have
been dismissed because plaintiff’s injuries did not result from an
affirmative violation of his physical integrity. That contention is
raised for the first time on appeal and is therefore unpreserved for
our review (see Ring v Jones, 13 AD3d 1078, 1079). Although
defendant’s notice of motion and supporting attorney affirmation made
reference to the fourth cause of action, the court properly noted that
defendant made no specific legal or factual arguments with respect
thereto, and we decline to consider that contention (see Healthcare
Capital Mgt. v Abrahams, 300 AD2d 108, 109), particularly in light of
the fact that defendant’s tactical course deprived plaintiffs of the
opportunity to submit affidavits to remedy any defects in the
complaint (see Rovello, 40 NY2d at 635).

     In light of our determination with respect to plaintiffs’ medical
malpractice and lack of informed consent causes of action, we reject
defendant’s contention that the court erred in denying its motion to
dismiss the derivative cause of action (cf. Klein v Metropolitan Child
Servs., Inc., 100 AD3d 708, 711).

     All concur except CENTRA, J.P., who dissents and votes to reverse
the order insofar as appealed from in accordance with the following
memorandum: I respectfully dissent and agree with defendant that
Supreme Court should have granted defendant’s motion to dismiss the
complaint in its entirety. As noted by the majority, we held on the
prior appeal that, pursuant to Kowalski v St. Francis Hosp. & Health
Ctrs. (21 NY3d 480, 484-485), defendant did not have a duty to prevent
Frederick Ingutti (plaintiff) from leaving the hospital against
medical advice or to ensure plaintiff’s safe return home (Ingutti v
Rochester Gen. Hosp., 114 AD3d 1302, 1302-1303, appeal dismissed 23
NY3d 929). We therefore held that the court erred in denying
defendant’s motion for partial summary judgment dismissing the first
cause of action, for negligence (id. at 1302). Defendant now seeks to
dismiss the remaining causes of action in the complaint pursuant to
CPLR 3211 (a) (7).

     With respect to the medical malpractice and lack of informed
consent causes of action, I conclude that those causes of action
should be dismissed for the same reason that the negligence cause of
action was dismissed. Those causes of action are based on similar
allegations that defendant allowed plaintiff to leave the hospital
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                                                         CA 15-01950

against medical advice. In Kowalski (21 NY3d at 484), the plaintiff
also alleged causes of action for negligence and medical malpractice,
which were both dismissed on appeal. Plaintiffs here argue that
defendant committed malpractice by failing to plan and provide for a
proper and safe discharge of plaintiff and by failing to assess and
document plaintiff’s treatment and condition before he left the
hospital. As in Kowalski, however, the gravamen of the complaint is
that defendant should not have allowed plaintiff to leave the hospital
(see id.). Here, as in Kowalski, “[n]othing in this record . . .
supports an inference that there was any causal connection between any
of the alleged departures from protocol . . . and plaintiff’s injury.
This case is about whether defendant[] had a duty to prevent plaintiff
from leaving the hospital, and nothing else” (id. at 486).

     Inasmuch as I conclude that the medical malpractice and lack of
informed consent causes of action should be dismissed, the derivative
cause of action must be dismissed as well (see Moore v First Fed. Sav.
& Loan Assn. of Rochester, 237 AD2d 956, 957).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
