                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 22, 2015                    518302
________________________________

DANIEL M. MARTUSCELLO, as
   Executor of the Estate of
   MARYANNA J. DARMIENTO,
   Deceased,
                    Appellant,
      v
                                             OPINION AND ORDER
SUSAN M. JENSEN,
                     Defendant,
     and

HORIZON FAMILY MEDICAL GROUP,
                    Respondent.
________________________________


Calendar Date:    September 10, 2015

Before:    Lahtinen, J.P., Garry, Lynch and Devine, JJ.

                              __________


      Rush Wadlin Heppner & Martuscello, LLP, Kingston (E.
Michael Kavanagh of counsel), for appellant.

      Marks, O'Neill, O'Brien, Doherty & Kelly, PC, Elmsford
(Robert E. Fein of counsel), for respondent.

                              __________


Garry, J.

      Appeal from a judgment of the Supreme Court (Melkonian,
J.), entered April 1, 2013 in Ulster County, upon a verdict
rendered in favor of defendant Horizon Family Medical Group.

      Maryanna J. Darmiento (hereinafter decedent), then 81 years
old, was transported by a relative to a medical office owned by
defendant Horizon Family Medical Group for a routine physical
                              -2-                518302

examination to be conducted by defendant Susan M. Jensen, who was
Horizon's employee and had been decedent's physician for many
years.1 Her relative remained in the waiting area, and decedent
was accompanied into an examination room by a medical assistant,
who allegedly directed decedent to seat herself on the
examination table. Decedent later testified that she did so, but
told the assistant that she did not feel secure there. According
to decedent, the assistant nevertheless left the room, and
decedent slipped off the table and fell to the floor. The
assistant denied that she either left the room or that decedent
had complained that she was insecure, testifying instead that
decedent fell when the assistant turned away momentarily to put
decedent's medical chart on a counter.

      Decedent commenced this action alleging, among other
things, that she was provided with inadequate assistance and
supervision on the examination table in view of her age and
medical conditions. Supreme Court partially granted defendants'
motion for summary judgment, finding, as pertinent here, that
decedent's claims sounded in negligence rather than medical
malpractice and that triable issues of fact barred summary
judgment for defendants on the negligence claim. Following the
close of proof in the subsequent bifurcated jury trial on the
issue of liability, all causes of action against Jensen were
dismissed, leaving Horizon as the sole remaining defendant.2 The
jury found that Horizon had not been negligent, and the court
issued a final judgment dismissing the action. Plaintiff
appeals, contending that a series of erroneous evidentiary
rulings and improper jury instructions prevented decedent from
establishing that her accident was foreseeable and was caused by
Horizon's failure to provide her with adequate assistance and
supervision.



    1
        Decedent died while this appeal was pending, and her
executor was substituted as plaintiff.
    2
        The medical assistant was originally named as a third
defendant, but the claims against her were dismissed before the
trial.
                              -3-                518302

      We begin with plaintiff's challenge to the jury
instructions. A jury has been properly charged when the
instructions, "viewed as a whole, adequately presented the
pertinent legal principles to be applied and the factual issues
to be resolved" (State of New York v 158th St. & Riverside Dr.
Hous. Co., Inc., 100 AD3d 1293, 1299 [2012], lv denied 20 NY3d
858 [2013] [internal quotation marks and citations omitted]; see
Spensieri v Lasky, 94 NY2d 231, 239-240 [1999]). Plaintiff
contends that Supreme Court's instructions inaccurately presented
the legal principles at issue and thus prevented the jury from
fully considering Horizon's potential liability for decedent's
injuries. We agree, and for this and other reasons, find that a
new trial is required.

      During the charge conference, Horizon's counsel asked
Supreme Court to instruct the jury on premises liability pursuant
to PJI 2:90. Decedent's counsel objected that the case did not
concern premises liability, that decedent did not claim that any
physical defect or dangerous condition existed in the medical
office, and that the issue instead was whether Horizon and its
employees had provided decedent with adequate supervision and
assistance. The court nevertheless determined that a premises
liability instruction was appropriate and, over decedent's
renewed objection, gave the jury a modified charge based on PJI
2:90 that attempted to combine the concepts of premises liability
and adequate supervision.3 In its unmodified form, PJI 2:90 sets
forth a two-step process in which the jury is first instructed to
determine whether the defendant's premises were reasonably safe
and – only if it answers this question in the negative – to then
determine whether the defendant was negligent in permitting the

    3
        We reject Horizon's suggestion that decedent's objection
to the subject instruction was waived by her counsel's later
statement that the question as to whether decedent was provided
with adequate assistance and supervision was "covered under [the]
charge." Notably, this statement was made after Supreme Court
had already rendered its decision. Read in context, the
statement merely acknowledges the court's ruling and cannot be
fairly read to waive the prior objection, which had properly
preserved the issue.
                              -4-                518302

unsafe condition to exist and whether its negligence was a
substantial factor in causing the plaintiff's injuries. Adopting
this structure, the modified instruction charged the jury that
decedent was first required to "prove that the premises were not
reasonably safe" and, in deciding whether decedent had met this
requirement, the jury was to determine "whether the assistance
provided by [the medical assistant] to [decedent] was reasonably
safe." If the jury's answer was affirmative, it was to proceed
no further; but if the answer was negative, the jury was to next
determine whether Horizon had been negligent in that it knew or
should have known that decedent would need assistance and
supervision on the examination table but failed to provide her
with such assistance or direct her to use a suitable alternative
such as a chair. This modified instruction failed in several
respects to set forth the applicable legal principles and factual
issues.

      Recovery in a premises liability action is predicated on
"ownership, occupancy, control or special use of [a] property"
where a dangerous or defective condition exists (Seymour v David
W. Mapes, Inc., 22 AD3d 1012, 1013 [2005] [internal quotation
marks and citation omitted]; accord Semzock v State of New York,
97 AD3d 1012, 1012 [2012]). Here, decedent neither alleged that
Horizon's liability arose from its ownership of dangerous or
defective premises nor that any defects or dangerous conditions
existed (compare NY PJI 2:90, Comment, Defective Conditions)
[Note: online treatise]. Instead, decedent asserted that Horizon
was liable for the acts and omissions of its employees in failing
to recognize the need for, or provide decedent with, adequate
assistance and supervision – an analysis unrelated to the
physical condition of the medical office or the legal principles
underlying premises liability. Supreme Court's attempt to
combine the two concepts resulted in an instruction that
improperly advised the jury that decedent was required to prove
that the premises were unsafe. Moreover, the instruction
confusingly directed the jury to evaluate the actions of the
medical assistant twice, first by determining whether her actions
were "reasonably safe" and then – without clarifying the
distinction, if there is one – whether those same actions were
negligent.
                              -5-                518302

      The modified instruction further misstated the threshold
issue of the applicable duty of care. "Although the existence of
a duty is a question of law to be determined by the courts, the
factfinder must be instructed on the nature and scope of such
duty so as to ascertain any breach thereof" (Gadani v Dormitory
Auth. of State of N.Y., 64 AD3d 1098, 1102 [2009] [internal
citation omitted]). The modified instruction used the language
of PJI 2:90 to charge the jury that "[t]he possessor of a
building has a duty to use reasonable care to keep the premises
in a reasonably safe condition for the protection of all persons
whose presence is reasonably foreseeable," followed by new
language advising the jury that "[a] facility also has a duty to
exercise ordinary and reasonable care to ensure that no
unnecessary harm befalls a patient." The first of the two
statements pertains to premises liability and, as previously
discussed, is inapplicable here. The second statement, although
not inapplicable to a negligence analysis, is incomplete. It is
well settled that a medical facility used by persons who may be
ill, disabled or otherwise vulnerable "ha[s] a duty to exercise
reasonable care and diligence in safeguarding a patient, based in
part on the capacity of the patient to provide for his [or her]
own safety" (Papa v Brunswick Gen. Hosp., 132 AD2d 601, 603
[1987]; see N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252-253
[2002]; Killeen v State of New York, 66 NY2d 850, 851-852 [1985];
Dawn VV. v State of New York, 47 AD3d 1048, 1050 [2008]; White v
Sheehan Mem. Hosp., 119 AD2d 989, 989 [1986]; see also Warley v
Grampp, 107 AD3d 1111, 1112 [2013]). "The degree of reasonable
care is measured by the physical and mental infirmities of the
patient[] as the [facility's] officials and employees know them"
(Mulberg v State of New York, 35 AD2d 856, 856 [1970] [emphasis
added], affd 29 NY2d 916 [1972] [citation omitted]; see Campbell
v Cluster Hous. Dev. Fund Co., 247 AD2d 353, 354 [1998]).

      Here, decedent alleged that she suffered from a number of
chronic medical conditions that, taken together and in
combination with her age, increased her risk of falling; she
further alleged that, as she had been Jensen's patient since at
least 1997, these conditions and her infirmities were or should
have been well known to Horizon. However, the revised
instruction omitted any reference to decedent's physical and
                              -6-                518302

mental capacities or to Horizon's knowledge of them, thus
misstating the applicable duty and foreclosing the jury from
making an informed determination as to whether the medical
assistant's actions in assisting and supervising decedent
constituted a breach of Horizon's duty to safeguard her welfare.

      This misapprehension of the applicable principles of law
also led Supreme Court to improperly limit decedent's ability to
provide evidence at trial of decedent's physical and mental
capacities and Horizon's knowledge of them. Following the
court's decision to bifurcate the trial, decedent's counsel asked
the court to permit the testimony of two expert physicians
pertaining to decedent's risk of falling as a result of her
medical conditions. One of the physicians was decedent's expert,
who based his opinion upon a review of decedent's medical
records. The other had been retained by defendants to conduct a
medical examination; an opinion set forth within his report was
that decedent was at a significant risk of falling and sustaining
serious injuries at the time of her accident.4 The court
precluded the testimony of both physicians on the ground that
defendants' liability was an issue of ordinary negligence to be
determined by the jury on the basis of its common knowledge and
everyday experience, such that expert testimony was not required.
As a result of this ruling, the jury heard no medical testimony
regarding decedent's medical conditions, except from Jensen.
Counsel for decedent called Jensen, who was then still a
defendant in the action, to testify at trial. When decedent
attempted to inquire about the effect of decedent's medical
conditions upon her risk of falling, the court sustained
defendants' objections and precluded Jensen from answering on the
ground that the action did not sound in malpractice and such
testimony was thus irrelevant. Although this testimony was
precluded upon direct examination, Jensen was permitted to
testify during her cross-examination by defendants' counsel that
several of decedent's medical conditions did not affect her risk
of falling, on the ground that decedent had opened the door by
asking about the issue.

    4
        Defendants' counsel advised that he did not intend to
call this physician during the liability phase of the trial.
                               -7-                518302

      Decedent's counsel repeatedly asserted that the effect of
decedent's medical conditions on her risk of falling was directly
relevant to the question of whether Horizon – a medical practice
– breached its duty to safeguard decedent's welfare, in view of
its knowledge of her infirmities. We agree. 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]). As the Second
Department stated in finding that an action arising from a
patient's fall from an examining table sounded in malpractice
rather than negligence, "[t]he critical question in determining
whether an action sounds in medical malpractice or simple
negligence is the nature of the duty to the plaintiff which the
defendant is alleged to have breached" (Stanley v Lebetkin, 123
AD2d 854, 854 [1986]). Conduct "that constitutes medical
treatment or bears a substantial relationship to the rendition of
medical treatment by a licensed physician" is malpractice
(Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). Conduct is negligence
rather than malpractice when "the gravamen of the complaint is
not negligence in furnishing medical treatment to a patient, but
[a medical facility's] failure in fulfilling a different duty"
(Bleiler v Bodnar, 65 NY2d at 73; see Scott v Uljanov, 74 NY2d at
675; Lipe v Albany Med. Ctr., 85 AD3d 1442, 1443 [2011]). The
issue devolves to whether medical judgment is required or not;
where the underlying claim arises from the failure to follow a
medical order previously made or to apply standards of ordinary
care, then it is negligence, without regard to whether expert
testimony is deemed helpful to the resolution. However, where
the conduct involves a standard established by means of the
exercise of medical judgment, then it is malpractice (see D'Elia

     5
        Decedent's appeal from the final judgment brings up the
pretrial order for review (see CPLR 5501 [a] [1]; Dolan v Jaeger,
285 AD2d 844, 846 n 2 [2001]).
                               -8-                518302

v Menorah Home & Hosp. For Aged & Infirm, 51 AD3d 848, 851
[2008]; Mossman v Albany Med. Ctr. Hosp., 34 AD2d 263, 264
[1970]).

      Here, decedent was not a stranger to defendants. Her
medical records established that she had been Jensen's patient
since the mid-1990s, and that Jensen had assessed, diagnosed and
treated her at Horizon's medical office – including providing her
with fall-prevention counseling – on many previous occasions.
The core of the argument on behalf of decedent is that, as a
result of Jensen's doctor-patient relationship with decedent,
Jensen and Horizon were familiar with her various medical
conditions, knew or should have known that she posed a
significant risk of falling and, therefore, should have
recognized the need to provide assistance and supervision in
using the examining table whenever she visited the office for
treatment, or a safer alternative such as a chair. "It was only
[defendants'] awareness of [decedent's] complaints, acquired in
the course of that relationship, when coupled with [Jensen's]
knowledge as a physician, which would give rise to a duty to
assist her on or off the table, or to keep her under constant
surveillance in view of her complaints" (Stanley v Lebetkin, 123
AD2d at 855 [internal quotation marks and emphasis omitted]). As
such, the conduct in question "[bore] a substantial relationship
to the rendition of medical treatment" (Bleiler v Bodnar, 65 NY2d
at 72).

      The assessment of a patient's risk of falling as a result
of his or her medical condition, and the patient's consequent
need for assistance, protective equipment or supervision, are
medical determinations that sound in malpractice (see Smee v
Sisters of Charity Hosp. of Buffalo, 210 AD2d 966, 967 [1994];
Fox v White Plains Med. Ctr., 125 AD2d 538, 538-539 [1986]).
Likewise, whether Horizon breached applicable standards of care
for medical offices in supervising and assisting decedent in view
of her medical condition "necessitates a comparison to the
standard of care customarily exercised by [comparable medical
facilities] . . . [that] cannot be determined without a full
appreciation and understanding of the operational demands and
practices of [such facilities]" and raises issues of malpractice
                               -9-                 518302

rather than negligence (Zellar v Tompkins Community Hosp., 124
AD2d 287, 289 [1986]; see Smee v Sisters of Charity Hosp. of
Buffalo, 210 AD2d at 968; Miller v Albany Med. Ctr. Hosp., 95
AD2d 977, 978 [1983]; see also Vandenburgh v Columbia Mem. Hosp.,
162 AD2d 880, 881-882 [1990]).

      Expert testimony is a necessary part of a malpractice
action, as the plaintiff is required to establish the relevant
professional standard of care (see Jack Hall Plumbing & Heating,
Inc. v Duffy, 100 AD3d 1082, 1083 [2012]; Wood v State of New
York, 45 AD3d 1198, 1198-1199 [2007]; Columbus v Smith & Mahoney,
259 AD2d 857, 858 [1999]). This case hinges upon a malpractice
standard. For the reasons set forth above, a new trial is
required. This determination renders the parties' remaining
contentions academic.

     Lahtinen, J.P., Lynch and Devine, JJ., concur.



      ORDERED that the judgment is reversed, on the law, with
costs, and matter remitted to the Supreme Court for a new trial.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
