You are here: / IN THIS MEDICAL MALPRACTICE CASE, WHETHER DEFENDANT REGISTERED NURSE AND...

Search Results

/ ,

IN THIS MEDICAL MALPRACTICE CASE, WHETHER DEFENDANT REGISTERED NURSE AND DEFENDANT PHYSICIAN’S ASSISTANT GAVE PLAINTIFF THE APPROPRIATE DISCHARGE INSTRUCTIONS AFTER DISOVERING A LUMP IN PLAINTIFF’S BREAST CREATED A QUESTION OF FACT; THERE WAS A QUESTION OF FACT WHETHER THE DOCTOR WHO COSIGNED THE PHYSICIAN ASSISTANT’S CHART SHOULD HAVE REVIEWED THE CHART (FIRST DEPT).

The First Department, reversing Supreme Court, determined questions of fact precluded summary judgment in favor of defendant registered nurse (Varas), defendant physician’s assistant (Rogan), and defendant doctor who cosigned the physician assistant’s chart (Shaukat). Plaintiff alleged she was told the lump in her breast was a cyst and was given no follow-up instructions. Defendants allege plaintiff was given the appropriate follow-up instructions (to rule out cancer). Several months later plaintiff was diagnosed with stage IV breast cancer:

Defendants Varas and Rogan made a prima facie showing that they did not depart from the applicable standard of care in providing plaintiff with verbal or written discharge instructions … . There are disputed issues of fact, however, that preclude summary judgment, including what, if anything at all, plaintiff was told upon discharge.

Dr. Shaukat established prima facie that she did not depart from the applicable standard of care through her expert physician’s opinion that cosigning a physician assistant’s chart “is a customary administrative function in major accredited hospitals,” and that she acted within that standard of care by cosigning plaintiff’s chart. In opposition, however, plaintiff raised an issue of fact through her expert physician’s opinions that “this function is not merely administrative”; that, in accordance with American Medical Association policy, “physician[s] must review the [physician assistants’] work to ensure conformity with the standard of care, not to simply rubberstamp medical records for ‘administrative’ purposes only”; and that Dr. Shaukat failed to conform to this standard of care by not recognizing alleged deficiencies in plaintiff’s chart and by not instructing Rogan to call plaintiff to tell her that she required imaging promptly in order to rule out a more serious condition, such as breast cancer … . Almonte v Shaukat, 2022 NY Slip Op 02221, First Dept 4-5-22

​Practice Point: In this medical malpractice case, whether a registered nurse and a physician’s assistant gave plaintiff adequate discharge instructions after discovery of a lump in plaintiff’s breast raised a question of fact. In addition, whether the doctor who cosigned the physician assistant’s chart should have reviewed the chart raised a question of fact.

 

/ , , , , ,

ALTHOUGH THE RECORDS OF TRAFFIC INFRACTIONS ARE SEALED PURSUANT TO CPL 160.55, THE RECORDS OF A VIOLATION OF NYC ADMINISTRATIVE CODE 19-190(b), AN UNCLASSIFIED MISDEMEANOR WHICH CRIMINALIZES STRIKING A PEDESTRIAN WHO HAS THE RIGHT OF WAY, ARE NOT SEALED; THEREFORE PLAINTIFF IS ENTITLED TO DISCOVERY OF THOSE RECORDS IN THIS VEHICLE-PEDESTRIAN ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this vehicle-pedestrian accident case was entitled to the records of the driver’s guilty plea to an unclassified misdemeanor (under the NYC Administrative Code), which criminalizes striking a pedestrian who has the right of way: The unclassified misdemeanor is not covered by the sealing statute, Criminal Procedure Law (CPL) 160.55 which seals records of Vehicle and Traffic Law infractions:

… [Defendant driver] was arrested, charged, and subsequently pled guilty to Administrative Code of City of NY § 19-190(b), an unclassified misdemeanor, and to Vehicle and Traffic Law § 1146(c)(1), a traffic violation, for failing to yield to plaintiff’s decedent and causing him injury. Plaintiff … now seeks the records pertaining to [the driver’s] unclassified misdemeanor. The City defendants argue that these records are not discoverable because they overlap with [the driver’s] traffic infraction records, which are sealed pursuant to CPL 160.55.

Under CPL 160.55, all records and papers relating to the arrest or prosecution of an individual convicted of a traffic infraction or violation, following a criminal action or proceeding, shall be sealed and not made available to any person or public or private agency … . Plaintiff is entitled to [the driver’s] records pertaining to his unclassified misdemeanor, as the records are not subject to CPL 160.55, and it does not appear that they were sealed … . To the extent these records contain references or information related solely to [the driver’s] sealed traffic violation case, the City must redact or remove it from its production. Lu-Wong v City of New York, 2022 NY Slip Op 02226, First Dept 4-5-22

Practice Point: Although the records of traffic infractions are sealed under CPL 160.55, the records of a violation of the NYC Administrative Code, which criminalizes striking a pedestrian who has the right-of-way, are not subject to that sealing statute. Therefore the plaintiff in this vehicle-pedestrian accident case was entitled to those records.

 

/ , ,

THE TRIAL JUDGE HAS THE DISCRETION TO PERMIT REBUTTAL TESTIMONY; HERE PLAINTIFF’S TREATING PHYSICIAN WAS PROPERLY ALLOWED TO REBUT THE TESTIMONY OF DEFENDANTS’ EXPERT, EVEN THOUGH THE TREATING PHYSICIAN’S TESTIMONY COULD HAVE BEEN PRESENTED IN THE CASE-IN-CHIEF (FIRST DEPT).

The First Department noted that the trial judge properly allowed plaintiff to call her treating physician to rebut the testimony of defendants’ expert, even though the doctor’s testimony could have been presented in her case-in-chief:

The trial court providently exercised its discretion in permitting plaintiff to call her treating radiologist as a rebuttal witness … . While plaintiff’s radiologist’s testimony could have been offered as part of her case-in-chief, and her failure to offer the testimony at that time deprived her of the right to make use of it as affirmative evidence, she still had the right to offer the testimony in order “to impeach or discredit” the testimony of defendants’ expert radiologist … . Reinoso v New York City Tr. Auth., 2022 NY Slip Op 02242, First Dept 4-5-22

Practice Point: In a civil case, a judge has the discretion to allow a plaintiff to present rebuttal evidence which could have been presented in the case-in-chief.

 

/ ,

THE JUDGE SHOULD HAVE INQUIRED FURTHER WHEN SEVERAL PROSPECTIVE JURORS INDICATED THEY WOULD BE INCLINED TO BELIEVE THE VICTIM IN THIS SEXUAL ABUSE CASE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s sexual-abuse conviction, determined the judge should have inquired further when several prospective jurors indicated they would be inclined to believe the victim:

PROSPECTIVE JUROR [Mr. L.]: … I would say that I do think that there is a lot of disincentives to come forward at all. And to come forward to this point, it would surprise me that someone would get that far without there being anything at all to it

THE COURT: Okay. …

MR. LYNCH: I know some of you raised your hand. Who agrees with the statement that Mr. L. just said?” (at which time 5 jurors raised their hands).

This statement by prospective juror (Mr. L.) and the apparent agreement by the other prospective jurors who raised their hands was sufficient to raise “a serious doubt regarding the ability to be impartial” … . The court erred in not engaging in any further inquiry of these jurors in order to elicit an unequivocal assurance of their impartiality and their ability to follow the court’s instructions … . People v Ledezma, 2022 NY Slip Op 02236, First Dept 4-5-22

Practice Point: In this sexual abuse case, five prospective jurors agreed with a prospective juror who said he would be inclined to believe the victim because of how hard it is to come forward. The judge should have made further inquiries. New trial ordered.

 

/

PLAINTIFF FELL LEAVING AN ELEVATOR HE HAD JUST MODIFIED TO PREVENT ACCESS TO A FLOOR; HIS WORK WAS NOT ROUTINE MAINTENANCE; INDUSTRIAL CODE PROVISIONS ABOUT GUARDING HAZARDOUS OPENINGS APPLIED; ONE DEFENDANT MAY BE LIABLE AS A STATUTORY AGENT; LABOR LAW 200, 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined: (1) plaintiff’s work on the elevator was not routine maintenance and therefore Labor Law 240(1) and 241(6) were applicable; (2) the Labor Law 241(6) cause of action based on Industrial Code provisions requiring the guarding of hazardous openings should not have been dismissed; and (3) there are questions of fact whether one defendant, Edge, based on a subcontract, was liable as a statutory agent under Labor Law 200, 240(1) and 241(6):

Plaintiff and a coworker lowered a building’s freight elevator into the basement to allow plaintiff to perform work on top of the elevator. Plaintiff testified that he spent about 40 minutes performing that work, which involved making changes to the elevator in order to prevent people from accessing a first-floor renovation site by means of the elevator’s rear door. The elevator’s front door opened onto an outdoor area. After performing this task, plaintiff claims that he tripped on a wooden ramp, which led from a loading dock to the elevator, and fell. …

… [P]laintiff was engaged in altering the premises within the meaning of Labor Law § 240(1), since his work was intended to secure the premises in preparation for the renovation project … .

The Labor Law § 241(6) claim should be reinstated insofar as it is based on alleged violations of Industrial Code §§ 23-1.7(b)(1)(i) and 23-1.15(a), since there are issues of fact as to whether plaintiff’s accident was proximately caused by the lack of a compliant “safety railing” guarding the “hazardous opening,” and it is undisputed that the opening was not “guarded by a substantial cover fastened in place” (12 NYCRR § 23-1.7[b][1][i]). …

… [T]here is testimonial evidence that the subcontract made Edge responsible for performing all aspects of the sidewalk excavation, including safety procedures. Moreover, there are issues of fact as to whether Edge created or had notice of the defective condition that caused plaintiff to fall into the excavation hole … . Rooney v D.P. Consulting Corp., 2022 NY Slip Op 02243, First Dept 4-5-22

Practice Point: This case found that a subcontractor responsible for safety procedures could be liable as a statutory agent under Labor Law 200, 240(1) and 241(6).

 

/

BOTH THE INDICTMENT AND THE SUPERIOR COURT INFORMATION CHARGED CRIMES WITH THE ELEMENT THAT THE VICTIM WAS LESS THAN 17; BOTH HAD THE WRONG BIRTH DATE FOR THE VICTIM WHICH THEREBY ALLEGED THE VICTIM WAS MORE THAN 17; THAT IS A JURISDICTIONAL DEFECT WHICH CANNOT BE CORRECTED BY AMENDMENT (THIRD DEPT). ​

The Third Department, reversing the conviction and dismissing the superior court information, determined that both the indictment and the subsequent superior court information were jurisdictionally defective. Both charged sexual offenses with the victim being less than 17 years old as an element. Both had the wrong birth date for the victim, which placed the victim’s age at more than 17 years old. The Third Department noted that the indictment, which was replaced by the superior court information, was improperly amended to reflect the correct birth date:

… [T]he superior court information specifically cited and charged defendant with endangering the welfare of a child under Penal Law § 260.10 (1), which provides that “[a] person is guilty of endangering the welfare of a child when . . . [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old” (Penal Law § 260.10 [1]). However, the superior court information also alleged that, “[o]n or about November 13, 2016, . . . the defendant . . . did knowingly act in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old, . . . having a date of birth of 6/2/1999, by engaging in oral sexual conduct with” the victim. Inasmuch as the offense of endangering the welfare of a child requires that the victim be less than 17 years old, we find that the superior court information was jurisdictionally defective because it failed to effectively charge defendant with the commission of a crime where the date of birth indicated that the victim was 17 at the time of the offense … .

Although a trial court may permit an indictment to be amended “with respect to defects, errors or variances from the proof relating to the matters of form, time, place, names of persons and the like” (CPL 200.70 [1]), an indictment may not “be amended for the purpose of curing . . . [a] failure thereof to charge or state an offense[] or . . . [l]egal insufficiency of the factual allegations” (CPL 200.70 [2] [a], [b] … ). Here, inasmuch as the first five counts of the indictment charged defendant with offenses that required the victim to be less than 17 years old, such counts suffered from the same jurisdictional defect as the superior court information in that they failed to allege a crime by stating that the victim’s date of birth was June 2, 1999 — making the victim 17 years old at the time of the alleged offense on November 13, 2016. As such, County Court had no authority to grant the People’s application to amend those counts, “regardless of any consistency with the People’s theory before the grand jury” or lack of prejudice to defendant … . People v Solomon, 2022 NY Slip Op 02158, Third Dept 3-31-22

Practice Point: If an element of the crime is that the victim is less than 17, and the indictment and the superior court information have the wrong birth date which puts the victim’s age at more than 17, the indictment and the superior court information are jurisdictionally defective and cannot be amended.

 

/

COUNTY COURT SHOULD NOT HAVE ACCORDED ANY WEIGHT TO AN OFF-THE-RECORD “CONDITION” THAT THE PEOPLE WOULD WITHDRAW THEIR CONSENT TO THE PLEA OFFER IF YOUTHFUL OFFENDER STATUS WERE GRANTED; ALTHOUGH THE PEOPLE CAN BARGAIN FOR SUCH A CONDITION, THERE WAS NOTHING ON THE RECORD ABOUT IT; SENTENCE VACATED AND MATTER REMITTED FOR CONSIDERATION OF THE FACTORS FOR A YOUTHFUL OFFENDER ADJUDICATION (THIRD DEPT).

The Third Department, vacating the sentence and remitting the matter, determined County Court failed to consider the relevant factors for adjudicating defendant a youthful offender. Instead the court did not consider the issue at all based on its understanding the People would withdraw their consent to the  plea offer if youthful offender status were granted. Although the People may bargain for the right to withdraw consent to the plea agreement is youthful offender treatment is granted, there was no such condition on the record here:

“[I]t is a settled rule of law in this [s]tate that off-the-record promises made in the plea bargaining process will not be recognized where they are flatly contradicted by the record, either by the existence of some on-the-record promise whose terms are inconsistent with those later urged or by the placement on the record of a statement by the pleading defendant that no other promises have been made to induce his [or her] guilty plea” … . The plea proceedings here were devoid of any indication that the People conditioned their consent to the plea agreement upon defendant not receiving youthful offender treatment or that defendant understood such a condition to be part of the agreement, and defendant stated during the plea colloquy that no off-the-record promises had been made to induce his guilty plea. The People further failed to reference their purported right to withdraw consent to the plea agreement when they addressed the question of youthful offender treatment at sentencing. The alleged off-the-record arrangement was unenforceable given those circumstances and, as such, “County Court should not have accorded any weight to” it … .

… County Court found that defendant was an “eligible youth” for purposes of youthful offender status (CPL 720.10 [2], [3]), the court was obliged to consider the relevant factors and determine whether it would, as a discretionary matter, adjudicate him to be a youthful offender … . People v Irizarry, 2022 NY Slip Op 02159, Third Dept 3-31-22

Practice Point: Here County Court did not consider the factors for adjudicating whether defendant should be afforded youthful offender status based upon on an off-the-record “condition,” i.e., that the People would withdraw their consent to the plea offer if the defendant were granted youthful offender status. Although the People can bargain for such a condition, there was nothing on the record about it. Therefore the judge should not have given it any weight and should have considered the factors for a youthful offender adjudication.

 

/ ,

THE “SPECIAL CIRCUMSTANCES” WHICH MAY HAVE JUSTIFIED AWARDING CUSTODY OF THE CHILD TO THE GRANDPARENTS APPLIED ONLY TO FATHER AND NOT AT ALL TO MOTHER; FOR THAT REASON THE GRANDPARENTS’ PETITION FOR CUSTODY OF THE CHILD SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

​The Third Department, reversing (modifying) Family Court, determined the grandparents’ petition for custody of the child should not have been granted. Father has a criminal history and has been incarcerated. He was arrested with the child and drug paraphernalia in his car, where he was found asleep. Mother has no criminal history and no drug problems. The “special circumstances” which may have supported granting custody to the grandparents related only to father, not al all to mother. Therefore the grandparents’ petition should have been denied:

The record reflects that the child was not subject to surrender, abandonment or persistent neglect nor is the mother unfit. Although the father was the subject of an indicated report relative to the incident when he fell asleep in his vehicle with drug paraphernalia near the child, a finding of neglect was not indicated as to the mother. Moreover, this was an isolated incident and not part of a pattern of persistent neglect. Although there was evidence that the father has a history of drug abuse and criminal convictions, the mother has neither. There was no evidence that the child was at risk of being harmed while in the mother’s care; instead, the record demonstrates that the mother provided appropriate shelter, clothing, food and medical attention to the child. Additionally, the mother did not allow the father to have contact with the child in accordance with Family Court’s orders. As Family Court found that the grandparents did not meet their burden on extraordinary circumstances as to the mother, the court erred in engaging in a best interests analysis and, instead, the custody petition should have been dismissed … . Matter of Anne MM. v Vasiliki NN, 2022 NY Slip Op 02161, Third Dept 3-31-22

Practice Point: Here “special circumstances” which may have supported granting the grandparents’ petition for custody of the child with respect to father, did not apply at all to mother. Family Court should not have proceeded with a “best interests” analysis and should have denied the petition.

 

 

/ , , ,

THE CITY FIREFIGHTERS WHO, AS ESSENTIAL EMPLOYEES, WERE REQUIRED BY EXECUTIVE ORDER TO WORK DURING THE PANDEMIC, SOUGHT TIME-OFF OR MONETARY COMPENSATION EQUIVALENT TO THE TIME-OFF AFFORDED THE NONESSENTIAL CIVILIAN EMPLOYEES WHO WERE SENT HOME DURING THE PANDEMIC PURSUANT TO THE SAME THE EXECUTIVE ORDER; THE THIRD DEPARTMENT DETERMINED ARBITRATION OF THE ISSUE WAS PRECLUDED BY PUBLIC POLICY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the city firefighters’ claim to entitlement to time off from work or monetary compensation equivalent to the time-off afforded the civilian employees ordered to stay home (due to COVID) was prohibited by public policy. The firefighters were deemed essential employees and were required to report to work by Executive Order. The “nonessential” civilian employees were ordered to stay home by the same Executive Order:

… [W]e cannot agree that petitioner breached the CBA [collective bargaining agreement] by responsibly implementing the Governor’s directives. To hold otherwise would create an untenable result — i.e., it would sanction a finding that petitioner breached the CBA based upon its required compliance with state public policy. Based on the very nature of the pandemic, requiring extreme public health measures as implemented through the executive orders, we conclude that arbitration of the resulting impact on respondent’s members is precluded as a matter of public policy. Matter of City of Troy (Troy Uniformed Firefighters Assn., Local 86 IAFF, AFL-CIO), 2022 NY Slip Op 02174, Third Dept 3-31-22

Practice Point: Here is a rare example of the preclusion of the arbitration of an employment issue by public policy. The firefighters were ordered to work during COVID as essential employees. The nonessential civilian employees were ordered to stay home. Public policy prohibited arbitration of the question whether the firefighters were entitled to equivalent time-off or monetary compensation.

 

/ ,

PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF THE PHYSICIAN-PATIENT PRIVILEGE, A TORT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff stated a cause of action for breach of the physician-patient privilege (CPLR 4504(a)). Plaintiff was a resident at the State College of Veterinary Medicine at Cornell University. During her residency plaintiff was treated by defendant Witlin, a psychiatrist. In a conversation with a staff psychologist at the college, Witlin said he was “aware of [plaintiff’s] deterioration” and that she “was a mess the last time [he] saw her.” Plaintiff was subsequently denied a second year of residency:

“The elements of a cause of action for breach of physician-patient confidentiality are: (1) the existence of a physician-patient relationship; (2) the physician’s acquisition of information relating to the patient’s treatment or diagnosis; (3) the disclosure of such confidential information to a person not connected with the patient’s medical treatment, in a manner that allows the patient to be identified; (4) lack of consent for that disclosure; and (5) damages” … . …

… [P]laintiff’s claimed damages are not limited to those related to the decision not to reappoint her. The complaint, as amplified by the bill of particulars, alleges that plaintiff suffered mental distress and related emotional harm as a direct result of the disclosure of her confidential medical information. Because a breach of physician-patient confidentiality is actionable as a tort … , plaintiff may recover for emotional harm so long as “the mental injury is a direct, rather than a consequential, result of the breach and . . . the claim possesses some guarantee of genuineness” … . Bonner v Lynott, 2022 NY Slip Op 02175, Third Dept 3-31-22

Practice Point: Here plaintiff stated a cause of action for breach of the patient-physician privilege which sounds in tort and includes damages as an element.

 

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