You are here: / / REVERSING THE FOURTH DEPARTMENT WITHOUT OPINION OR MEMORANDUM DECISION,...
, ,

REVERSING THE FOURTH DEPARTMENT WITHOUT OPINION OR MEMORANDUM DECISION, THE COURT OF APPEALS HELD QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR IN THIS MEDICAL MALPRACTICE ACTION (CT APP).

The Court of Appeals, reversing the Fourth Department without an opinion or memorandum decision, determined questions of fact precluded summary judgment in defendants’ favor in this medical malpractice case. ​Amber R. v Pediatric & Adolescent Urgent Care of W. N.Y., PLLC, 2024 NY Slip Op 02085, CtApp 4-18-24

From the dissent in Amber R. v Pediatric & Adolescent Urgent Care of W. N.Y., PLLC, 2023 NY Slip Op 04063 [218 AD3d 1344], Fourth Dept 7-28-23:

The medical records proferred by defendants established that, after a failed first intubation attempt with a 3.5 mm ET by defendant Katelyn Johnson-Clark, D.O., a physician with little training in the intubation process, Johnson-Clark attempted intubation using a smaller 3.0 mm ET. It is undisputed that there was no verification of the proper placement of that ET by way of an end-tidal CO2 detector. The medical records further establish that one minute after the placement of the ET, the infant’s heart rate quickly dropped and one minute thereafter, the infant’s belly was distended. Another physician testified at her deposition that both of those signs indicate that there was a potential issue with the intubation. When the specialized transport team arrived, it was determined by way of a CO2 detector that the ET was not in the proper place. Thus, we conclude that defendants’ own submissions raise questions of fact whether Johnson-Clark acted negligently in the intubation of the infant and the motion was properly denied in part without regard to the sufficiency of plaintiff’s opposition papers … . We would therefore affirm that part of the order denying defendants’ motion insofar as it seeks summary judgment dismissing the claim of malpractice related to the intubation of the infant.

 

You might also like
Defendant’s Limited Right to Seek the Advice of an Attorney Before Consenting to a Breathalyzer Test Was Violated When the Sheriff’s Department Administered the Test Without First Telling Defendant an Attorney Had Communicated with the Sheriff’s Department on Her Behalf
BECAUSE OF A LACK OF PLACEMENT OPTIONS, A CHILD REMOVED FROM SCHOOL WHEN SHE BECAME UNMANAGEABLE REMAINED IN A HOSPITAL EMERGENCY ROOM FOR WEEKS; THE PETITION SOUGHT HER RELEASE FROM THE EMERGENCY ROOM; THE APPEAL WAS DEEMED MOOT BECAUSE THE NYS OFFICE OF PEOPLE WITH DEVELOPMENTAL DISABILITIES HAD FOUND SUITABLE PLACEMENT AND INSTITUTED A PROGRAM TO ENSURE THE PROBLEM WOULD NOT RECUR (CT APP).
THE FINDING THAT MOTHER HAD ABUSED THE CHILDREN WAS BASED ON VIDEO EVIDENCE PURPORTING TO SHOW MOTHER’S EX-BOYFRIEND ABUSING ONE OF THE CHILDREN; THE COURT OF APPEALS REVERSED, FINDING THAT THE VIDEO EVIDENCE WAS NOT AUTHENTICATED (CT APP).
THE COURT OF APPEALS CAN HEAR THE APPEAL OF AN UNPRESERVED SENTENCING ISSUE RAISED FOR THE FIRST TIME IN A MOTION TO VACATE THE SENTENCE; A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT SERVE AS A PREDICATE FELONY, IRRESPECTIVE OF THE ACTUAL FACTS UNDERLYING THE FOREIGN CONVICTION.
Denial of Petitioner’s Application for Employment as a School-Bus Driver, Based Upon His Criminal Record, Was Not Arbitrary and Capricious Despite Petitioner’s Good Employment Record and His Obtaining a Certificate of Relief from Civil Disabilities
WHEN A DEFENDANT MUST BE RELEASED BECAUSE HE OR SHE IS NOT CHARGED WITH A BAIL-ELIGIBLE OFFENSE, A COMPETENCY EXAMINATION MUST BE CONDUCTED AS AN OUT-PATIENT OR IN A HOSPITAL; THE DEFENDANT CANNOT BE ORDERED TO JAIL PENDING THE EXAMINATION; THE HABEAS CORPUS PETITION WAS PROPERLY GRANTED; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (CT APP). ​
THE COURT OF APPEALS, OVERRULING PRECEDENT, DETERMINED THE AUTOPSY REPORTS WERE “TESTIMONIAL” IN NATURE AND SHOULD NOT HAVE BEEN ADMITTED THROUGH AN EXPERT WHO DID NOT PARTICIPATE IN THE AUTOPSIES; ADMISSION OF THE REPORTS AND THE EXPERT’S TESTIMONY VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (CT APP).
STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A CORPORATION WHICH ACQUIRES THE ASSETS AND LIABILITIES OF, BUT DOES NOT MERGE... A BREACH OF CONTRACT ACTION SHOULD NOT BE CONSOLIDATED WITH A TORT ACTION (FIRST...