LIPE v. ALBANY MEDICAL CENTER 511652.
85 A.D.3d 1442 (2011)
925 N.Y.S.2d 258
2011 NY Slip Op 5171
SANDRA LIPE, Respondent, v. ALBANY MEDICAL CENTER, Appellant.
Appellate Division of the Supreme Court of New York, Third Department.
Decided June 16, 2011.
MERCURE, J.P., SPAIN, KAVANAGH and STEIN, JJ., concur.
In February 2006, plaintiff underwent a colonoscopy at defendant, Albany Medical Center, performed under sedation. She suffers from several medical conditions, including multiple sclerosis, and walks with a quad cane. In the recovery area following the procedure, plaintiff allegedly made multiple requests for either a bedpan or assistance in getting to the bathroom, but her requests were ignored. Plaintiff claims that, ultimately, a hospital employee told her where the bathroom was, and that she was free to ambulate to it on her own. She left her bed and reached the bathroom, but fell when attempting to exit, striking a garbage can. Defendant disputes this chronology of events leading to the fall, essentially asserting that plaintiff was accompanied to the restroom after an evaluation and physical assessment performed by the hospital nursing staff.
Plaintiff commenced this action in June 2008, with causes of action based in medical malpractice, negligence and lack of informed consent. Defendant moved for summary judgment and
Defendant argues that plaintiff's allegations sound in medical malpractice, not negligence, and must be dismissed as plaintiff failed to oppose the summary judgment motion with more than her attorney's affirmation (see Alvarez v Prospect Hosp.,
Here, plaintiff has alleged negligent conduct by defendant including "ignoring the plaintiff" and "failing to observe and heed the needs of the plaintiff." Plaintiff's testimony presents a factual issue as to whether she received any assistance or assessment at all, not whether the assessment was properly performed (see Reardon v Presbyterian Hosp. in City of N.Y.,
Ordered that the order is affirmed, with costs.
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