21.19 - B. Negligence Vs. Malpractice

• Jurisdiction: New York

b. Negligence vs. Malpractice

In fashioning its charge, a trial court must be careful in distinguishing between the related concepts of ordinary negligence and malpractice.³³⁵⁴ The trial court in Kerker v. Hurwitz³³⁵⁵ erred in refusing the plaintiff’s request to charge the case as one of common law negligence, ruling instead that the case was one of medical malpractice:

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 lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience of the trier of the facts. ³³⁵⁶

The Appellate Division in Kerker found that where there is clear notice of the risk of harm, liability may be imposed without regard to the professional standards of care.³³⁵⁷

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Notes:

^[3354] . Abrams v. Bute, 138 A.D.3d 179, 27 N.Y.S.3d 58 (2d Dep’t), lv. denied, 28 N.Y.3d 910, 47 N.Y.S.3d 225 (2016), citing Reiss v. Volvo Cars of N. Amer., 24 N.Y.3d 35, 993 N.Y.S.2d 672 (2014) (trial court erred in charging malpractice language in a design defect case, as the difference between the “community” and reasonable person” standards is a “subtle one”).

^[3355] . 163 A.D.2d 859, 558 N.Y.S.2d 388 (4th Dep’t 1990).

^[3356] . Id. at 859, quoting Miller v. Albany Med. Ctr. Hosp., 95 A.D.2d 977, 464 N.Y.S.2d 297 (3d Dep’t 1983); see also Smee v. Sisters of Charity Hosp. of Buffalo, 210 A.D.2d 966, 620 N.Y.S.2d 685 (4th Dep’t 1994) (trial court erred in determining that action was based on ordinary negligence rather than medical malpractice).

^[3357] . Id. at 860.