Third Department Clarifies: Internal Hospital Policies Do Not Define the Standard of Care in Fall-Risk Cases; Expert Disputes on 12‑Hour Reassessments and Assisted‑Fall Causation Preclude Summary Judgment

Introduction

In Naylor v. Ellis Hospital (2025 N.Y. Slip Op. 1021), the Appellate Division, Third Department, modified a Schenectady County Supreme Court order that had granted summary judgment to Ellis Hospital on the plaintiff’s principal medical malpractice claim. The case arises from the hospitalization of Arthur Samuel Harvey Jr., who presented with an altered mental state and fell at the nursing station the day after admission, allegedly following a sudden neurological event. He was rendered comatose and later died.

The appeal centered on whether Ellis Hospital complied with the applicable standard of care in assessing fall risk and implementing prevention measures, and whether any departure was a proximate cause of the decedent’s injuries. The Third Department held that although the hospital met its initial summary judgment burden through records and expert opinion, the plaintiff’s competing expert affidavits created triable issues of fact on both departure and causation. Critically, the Court also reiterated that a hospital’s internal policies do not set the legal standard of care.

Parties: - Appellant: Barbara Shriay Naylor, as Administrator of the Estate of Arthur Samuel Harvey Jr. - Respondent: Ellis Hospital - Opinion by: Clark, J.; Egan Jr., J.P., Reynolds Fitzgerald, Fisher, and Mackey, JJ., concurring - Decision date: February 20, 2025

Summary of the Opinion

The Third Department modified the lower court’s order by reversing the grant of summary judgment dismissing the first cause of action for medical malpractice related to the fall. The Court concluded:

• Ellis Hospital met its initial burden on summary judgment by showing compliance with accepted standards via medical records, nurse depositions, and an expert opinion, including that the fall was triggered by a sudden neurological event.
• However, plaintiff’s experts raised triable issues of fact that:
  • Fall-risk assessments should be performed approximately every 12 hours (once per 12-hour nursing shift),
  • Given the decedent’s altered mental state, poor self-assessment, and impulsivity, he should have been categorized as high fall risk, and
  • Additional measures—particularly one-to-one supervision—could have enabled an “assisted fall,” reducing the force of impact and the extent of injuries.
• The trial court erred to the extent it treated the hospital’s internal fall-prevention policy as the legal standard of care.

Result: The hospital’s motion for summary judgment was denied as to the first cause of action; the order was otherwise affirmed.

Analysis

Factual Background and Procedural Posture

On November 27, 2018, the decedent—disoriented and believing it was 1978—was admitted to Ellis Hospital’s geriatric floor. Around 4:00 a.m., Nurse A assessed him as high fall risk via a modified Morse Fall Scale (MMFS), implemented safety measures, and noted he could ambulate in his room. Around 1:00 p.m., Nurse B reassessed the decedent as low risk and documented certain precautions; on the following morning, Nurse C (who recalled assessing but did not document the MMFS) observed the decedent ambulating independently. Around 11:45 a.m., the decedent walked to the nurses’ station, suffered a neurological event, fell, and struck his head.

Plaintiff sued, alleging negligent fall-risk assessment and insufficient prevention measures. After discovery, Ellis Hospital moved for summary judgment, which Supreme Court largely granted, finding compliance with the standard of care and no triable issue of fact. Plaintiff appealed the dismissal of the first cause of action (the fall-related malpractice claim).

Precedents Cited and Their Influence

• Stanhope v Burke, 220 A.D.3d 1122 (3d Dept 2023); Lorica v Krug, 195 A.D.3d 1194 (3d Dept 2021):
  These cases reiterate the summary judgment lens: the evidence is viewed in the light most favorable to the nonmovant, with all reasonable inferences in that party’s favor. The Third Department applied this standard to evaluate whether plaintiff’s expert submissions created triable issues, concluding that they did.
• Schwenzfeier v St. Peter’s Health Partners, 213 A.D.3d 1077 (3d Dept 2023); Humphrey v Riley, 163 A.D.3d 1313 (3d Dept 2018):
  These decisions articulate the burdens in medical malpractice summary judgment: the defendant must show either compliance with the standard of care or absence of causation; if satisfied, the burden shifts to the plaintiff to demonstrate a deviation and proximate cause via expert opinion. The Court found Ellis Hospital met its initial burden but the plaintiff met her responsive burden.
• Boltyansky v New York Community Hosp., 175 A.D.3d 1478 (2d Dept 2019); Yamin v Baghel, 284 A.D.2d 778 (3d Dept 2001); Douglass v Gibson, 218 A.D.2d 856 (3d Dept 1995); Martir v St. Luke’s–Roosevelt Hosp. Ctr., 219 A.D.3d 423 (1st Dept 2023):
  Cited to show how a defendant may satisfy its initial burden and how plaintiff can nevertheless create triable issues. The Court “compared” Martir to indicate contrasting outcomes on similar motions, highlighting fact-specific analyses in fall cases.
• Feinstein v Norwegian Christian Home & Health Ctr., Inc., 135 A.D.3d 699 (2d Dept 2016); Currie v Oneida Health Sys., Inc., 222 A.D.3d 1284 (3d Dept 2023):
  Used in two ways: (1) to affirm the defense expert’s qualifications to opine on fall-risk standards despite plaintiff’s challenge; and (2) along with Diaz (below), to emphasize that internal policies do not set the external legal standard of care.
• Diaz v New York Downtown Hosp., 99 N.Y.2d 542 (2002); Taylor v Appleberry, 214 A.D.3d 1142 (3d Dept 2023) (n.4):
  These authorities underscore a critical limitation: a hospital’s internal protocols are not the legal benchmark for negligence. The Third Department expressly held that Supreme Court erred to the extent it treated Ellis Hospital’s policy as such.
• Lubrano-Birken v Ellis Hospital, 229 A.D.3d 873 (3d Dept 2024); Sovocool v Cortland Regional Med. Ctr., 218 A.D.3d 947 (3d Dept 2023); Almonte v Shaukat, 204 A.D.3d 402 (1st Dept 2022); Hranek v United Methodist Homes of Wyo. Conference, 27 A.D.3d 879 (3d Dept 2006):
  These cases support the plaintiff’s “assisted fall” and mitigation-of-injury causation theory. Even if a fall results from a sudden medical event, a departure can be a proximate cause of the extent of injury when proper supervision could have reduced the impact. The Court relied on this line to find triable issues on causation.

Legal Reasoning

The Court’s reasoning followed the standard burden-shifting framework for medical malpractice summary judgment:

1. Defendant’s prima facie showing:
   • Evidence: Hospital’s fall-prevention policy (as context), medical records, and depositions of Nurses A, B, and C. Documentation reflected MMFS assessments at 4:00 a.m. (high risk) and 1:00 p.m. (low risk) on November 27, 2018, observable independent ambulation, and implemented precautions (security bracelet, non-slip socks, call button, purposeful rounding).
   • Expert: Mark Graham opined MMFS is an appropriate standard-of-care tool; that decedent’s gait and independence supported a low-risk categorization; and that additional measures would not have prevented the fall, which was precipitated by a sudden neurological event. This satisfied the dual prongs of (a) compliance and (b) lack of proximate cause.
2. Plaintiff’s opposition:
   • Experts: Dr. Joshua Davidson and RN Ellen Kurtz agreed MMFS is consistent with standard practice but opined fall-risk reassessment should occur approximately every 12 hours—i.e., once per 12-hour nursing shift. Nurses testified reassessments should be performed once per shift; the unit ran on 12-hour shifts (7:00 a.m.–7:00 p.m.; 7:00 p.m.–7:00 a.m.).
   • Departure: The last documented MMFS was at 1:00 p.m. on November 27. By the time of the November 28 fall (~11:45 a.m.), no documented reassessment had occurred during the preceding 12-hour periods. Plaintiff’s experts pointed to the decedent’s altered mental status, poor self-assessment, impulsivity (e.g., attempting to cut the security bracelet), and relevant secondary diagnoses—factors that, if appropriately weighed, would have warranted classification as high risk and additional protective measures (including one-on-one supervision).
   • Proximate cause: Even conceding the sudden neurological event, one-on-one supervision could have permitted an “assisted fall,” slowing descent and reducing the force of impact, thereby mitigating injury—a recognized causal theory in New York (Lubrano-Birken; Sovocool; Almonte).
3. Internal policy is not the standard:
   • Although Ellis Hospital’s policy illuminated institutional practices, Supreme Court erred to treat it as the governing standard of care. The Third Department emphasized that the legal standard is drawn from accepted medical practice as established by competent expert proof, not from the defendant’s own policy (Diaz; Feinstein; Taylor n.4).

On this record, plaintiff’s experts raised material factual disputes about (a) the appropriate frequency of reassessment given 12-hour shifts, (b) how the decedent’s cognitive status should have been scored under the MMFS, and (c) whether enhanced supervision would have reduced the severity of injury. Under the summary judgment standard, these conflicts are for a jury to resolve.

Impact and Practical Implications

This opinion refines and reaffirms several practical points in hospital fall litigation in New York:

• Internal policy is evidentiary, not dispositive:
  Hospitals cannot rely on internal fall-prevention protocols to set the legal yardstick. Defendants must ground their motion in expert testimony that ties their conduct to broadly accepted medical practice—not merely adherence to in-house policies.
• Reassessment frequency is fact-driven and triable:
  While the Court did not announce a per se rule, it signaled that expert testimony opining that reassessments should occur at least once per 12-hour shift can create a triable issue, especially when unit staffing operates on 12-hour cycles and nurse testimony aligns with per-shift reassessments.
• Cognitive status matters in MMFS scoring:
  Altered mental status, poor insight/self-assessment, and impulsivity are highly probative to fall risk. Evidence that staff discounted or insufficiently weighed these factors can defeat summary judgment.
• “Sudden event” is not a silver bullet:
  Even if a fall is precipitated by an unforeseeable neurological event, plaintiffs may establish proximate cause as to the extent of injury by showing that departures (e.g., lack of one-to-one supervision) deprived the patient of an assisted descent that would have reduced impact forces. This mitigation theory is firmly recognized in the Third Department and beyond.
• Documentation is decisive:
  Here, the lack of a documented MMFS reassessment by Nurse C—and the timing gap since the last documented assessment—became a key fact supporting plaintiff’s theory. Consistent, time-stamped reassessments and explicit rationale for risk stratification can be outcome-determinative on summary judgment.
• Expert qualifications:
  The Court accepted the defense expert’s qualifications against challenge, reminding practitioners that cross-specialty experts may opine if they demonstrate requisite knowledge of the subject matter. Plaintiffs should anticipate and address such qualifications rather than rely solely on formal specialty labels.

Looking forward, hospitals litigating fall cases in New York should expect increased focus on:

• Shift-based fall-risk reassessments and their documentation,
• How cognitive impairment and impulsivity inform MMFS scoring,
• Criteria for deploying one-to-one supervision or comparable high-alert interventions, and
• Expert testimony specifically addressing both departure and the mitigation-of-injury causation theory.

Complex Concepts Simplified

• Summary Judgment:
  A pretrial ruling that no trial is needed because no genuine dispute of material fact exists. The moving party must first show entitlement to judgment as a matter of law; if met, the opponent must show triable issues of fact—often via expert affidavits in medical malpractice cases.
• Standard of Care:
  The level of care and skill that a reasonably prudent medical professional or institution would exercise under similar circumstances, as established through expert testimony. It is not set by a defendant’s internal policies.
• Modified Morse Fall Scale (MMFS):
  A tool used to estimate a patient’s likelihood of falling. It assigns points for factors such as recent falls, diagnoses (e.g., syncope, neurological/cardiac conditions), secondary diagnoses, medication, gait, use of ambulatory aids, IV/heparin lock, and patient’s self-assessment. The total yields a risk category (none/low/high) that guides prevention measures.
• Purposeful Rounding:
  Systematic, scheduled nurse checks on a patient to anticipate needs, reduce risk, and enhance safety—often documented as part of fall-prevention protocols.
• One-to-One Supervision:
  Continuous, dedicated observation of a single patient due to high risk (e.g., of falls or elopement). In the fall context, it may enable an “assisted fall.”
• Assisted Fall:
  When a caregiver partially supports or eases a patient’s descent during a loss of balance or collapse, reducing the force of impact and likely injury severity. In New York, failure to enable an assisted fall can be a proximate cause of the extent of injury.
• Proximate Cause (in this context):
  A legal cause that is sufficiently connected to the injury. In fall cases, even if the fall’s trigger (e.g., sudden neurological event) is non-negligent, a departure can still be a proximate cause by worsening the outcome—i.e., by allowing a harder, more injurious fall.
• Heparin Lock:
  An IV access device kept in place for intermittent medication administration. Its presence may factor into fall risk due to entanglement or mobility issues.

Key Citations

• Diaz v New York Downtown Hosp., 99 N.Y.2d 542 (2002) — Internal policy does not define the legal standard of care.
• Schwenzfeier v St. Peter’s Health Partners, 213 A.D.3d 1077 (3d Dept 2023) — Summary judgment burdens in med-mal cases.
• Lubrano-Birken v Ellis Hospital, 229 A.D.3d 873 (3d Dept 2024); Sovocool v Cortland Regional Med. Ctr., 218 A.D.3d 947 (3d Dept 2023); Almonte v Shaukat, 204 A.D.3d 402 (1st Dept 2022) — Assisted-fall mitigation theory and proximate cause to the extent of injury.
• Feinstein v Norwegian Christian Home & Health Ctr., Inc., 135 A.D.3d 699 (2d Dept 2016) — Expert qualification and internal-policy limits.

Conclusion

Naylor v. Ellis Hospital underscores two decisive propositions in New York hospital fall litigation. First, internal policies are not the legal standard of care; the standard derives from accepted medical practice proven by competent expert testimony. Second, plaintiffs can defeat summary judgment by offering expert opinions that (a) identify departures—such as failure to reassess fall risk on a 12-hour shift cadence or mis-scoring cognitive/impulsivity factors—and (b) plausibly link those departures to injury severity through an assisted-fall mitigation theory, even where the fall was triggered by a sudden medical event.

The Third Department’s decision thus advances a careful, evidence-driven approach to fall-risk cases: it accepts defendant compliance showings when supported by records and expert affidavits, but insists that conflicts in expert assessments, especially about reassessment frequency and supervision needs, are jury questions. For providers, rigorous, per-shift reassessment documentation and clear reasoning for fall-risk stratification are more important than ever. For plaintiffs, focused expert analysis of cognitive status and feasible preventive measures will remain central to overcoming motions for summary judgment.

The order was modified to reinstate the first cause of action; the case will proceed with the core malpractice claim intact, guided by the clarified principles on standard of care, expert conflicts, and proximate causation.