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PLAINTIFF’S DAUGHTER SHOULD NOT HAVE BEEN APPOINTED TO SERVE AS THE INTERPRETER FOR HER MOTHER’S DEPOSITION IN THIS MEDICAL MALPRACTICE CASE; THE CRITERIA FOR ALLOWING A RELATIVE TO SERVE AS AN INTERPRETER ARE EXPLAINED (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Wooten, determined the plaintiff’s daughter should not have been appointed an interpreter for plaintiff’s deposition in this medical malpractice action. The opinion lays out the criteria for when a relative could be allowed to act as an interpreter:

… [W]e hold that the appointment of an individual to serve as interpreter for a relative or to serve as interpreter in an action or proceeding in which the interpreter has personal knowledge of the relevant facts is only permissible under exceptional circumstances. In evaluating whether such circumstances are present, courts must consider the following: (1) whether sufficient information has been disclosed by the party in need of an interpreter to the court and to opposing parties so as to allow for a thorough search for a disinterested interpreter; (2) whether an exhaustive and meaningful search has been conducted for a disinterested interpreter; (3) whether the potential interpreter is the least interested individual available to serve as interpreter; and (4) whether the potential interpreter is capable of objectively translating the testimony verbatim, which may only be assessed after the court has conducted an inquiry of the potential interpreter. Unless the court is satisfied that each of these four elements has been satisfied, then the potential interpreter must not be permitted to serve as interpreter in view of the “danger that [the] witness’ [testimony] will be distorted through interpretation,” “either consciously or subconsciously” … .Zhiwen Yang v Harmon, 2023 NY Slip Op 00893, Second Dept 2-15-23

Practice Point: Here the plaintiff’s daughter should not have been appointed to serve as the interpreter for her mother’s deposition in this med mal case. The court laid out guidelines for the extraordinary circumstances in which a party’s relative may act as the interpreter.

 

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PLAINTIFF ALLEGED HE WAS DENIED PROPER MEDICAL CARE IN THE NIAGARA COUNTY JAIL AND SUED THE JAIL DOCTOR, THE COUNTY AND THE SHERIFF; THE CAUSES OF ACTION ALLEGING THE VIOLATION OF PLAINTIFF’S CIVIL RIGHTS PURSUANT TO 42 USC 1983 SURVIVED MOTIONS TO DISMISS; OTHER CAUSES OF ACTION WERE DEEMED TIME-BARRED; ACTIONS ALLEGING THE COUNTY WAS VICARIOUSLY LIABLE FOR THE ACTS OF THE SHERIFF WERE DISMISSED; THE RELATION-BACK DOCTRINE DID NOT APPLY BECAUSE THE COUNTY AND SHERIFF WERE NOT DEEMED “UNITED IN INTEREST” (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined some causes of action should have been dismissed and others should not have been dismissed in this action against the county, county employees and sheriff alleging plaintiff was denied proper medical care while he was an inmate in the Niagara County Jail. The medical malpractice and negligence causes of action against a doctor employed by the county were time-barred pursuant to General Municipal Law 50-d (one year and ninety days). The causes of action against the doctor and the county alleging civil rights violations pursuant to 42 USC 1983 properly survived motions to dismiss. But the 42 USC 1983 cause of action against the sheriff should have been dismissed because the sheriff had no personal involvement in plaintiff’s medical care. The relation-back doctrine was improperly invoked for time-barred causes of action against the sheriff because the county and the sheriff are not united interest (the county is not vicariously liable for the acts of the sheriff and the sheriff’s department does not have an identity separate from the county). The negligent investigation cause of action should have been dismissed because New York does not recognize it. Claims alleging the county was vicariously liable for the acts of the sheriff should have been dismissed because plaintiff did not allege there was a local law imposing such a responsibility. Prezioso v County of Niagara, 2023 NY Slip Op 00768, Fourth Dept 2-10-23

Practice Point: Plaintiff alleged he was denied proper medical care in the Niagara County Jail. Plaintiff’s causes of action alleging a violation of his civil rights pursuant to 42 USC 1983 survived dismissal. The confusing relationship between the county and the sheriff resulted in the dismissal of several causes of action. The one-year-ninety day statute of limitations in the General Municipal Law applied to some causes of action. Absent a local law to the contrary, a county is not vicariously liable for the acts of the sheriff. The decision is worth reading because of the sheer number of unique issues which arise in suits against counties, county employees and county sheriffs.

 

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PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION SOUGHT TO ADD TWO PHYSICIAN’S ASSISTANTS (PA’S) AS DEFENDANTS AFTER THE STATUTE OF LIMITATIONS HAD RUN; PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT DOCTORS WERE THE PA’S EMPLOYERS OR SUPERVISORS; PLAINTIFF DID NOT DEMONSTRATE THE PA’S HAD TIMELY KNOWLEDGE OF THE ACTION; THEREFORE THE RELATION-BACK DOCTRINE SHOULD NOT HAVE BEEN APPLIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate the relation-back doctrine applied such that two physician’s assistants (PA’s) could be added as defendants after the statute of limitations had expired. There was no evidence the PA’s and the doctors were united in interest and no evidence the PA’s had timely notice of the suit:

In a negligence or malpractice action “the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other” … . … As the PA defendants were employed by the practice, not the individual doctor defendants, there is no vicarious liability based on respondeat superior … . …  [T]he plaintiff failed to set forth sufficient facts to demonstrate that the PA defendants were directly supervised or controlled by the doctor defendants in their care and treatment of the decedent.

… The record is devoid of evidence that the PA defendants had notice that an action had been commenced against the doctor defendants prior to the expiration in 2014 of the statute of limitations for the medical malpractice and wrongful death causes of action. Sanders v Guida, 2023 NY Slip Op 00455, Second Dept 2-1-23

Practice Point: Here two of the three prongs of the relation-back doctrine should not have been applied to allow adding two physician’s assistants (PA’s) as defendants in this med mal case after the statute of limitations had run. The defendant doctors were not the PA’s employers or supervisors (the doctors and PA’s were not united in interest) and the plaintiff did not show the PA”s had timely knowledge of the suit.

 

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A SIGNED CONSENT FORM ALONE DOES NOT PRECLUDE A LACK-OF-INFORMED-CONSENT CAUSE OF ACTION IN A MEDICAL MALPRACTICE CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined questions of fact precluded summary judgment in this medical malpractice/lack of informed consent case: The court noted that a signed consent form does not preclude a lack-of-informed-consent cause of action:

To establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury … . The fact that a plaintiff signed a consent form, standing alone, does not establish a defendant’s prima facie entitlement to judgment as a matter of law … . Here, the defendants’ submissions failed to establish, prima facie, that the plaintiff was informed about the risks and benefits of inducing labor immediately, and the available alternatives thereto. Thus, the defendants failed to establish the absence of triable issues of fact with respect to the cause of action alleging lack of informed consent … . Guinn v New York Methodist Hosp., 2023 NY Slip Op 00308, Second Dept 1-25-23

Practice Point: Even if plaintiff in a medical malpractice action signed a consent form, a lack-of-informed-consent cause of action may survive summary judgment.

 

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ATTENDING PHYSICIAN NOT VICARIOUSLY LIABLE FOR NEGLIGENCE OF PHYSICIAN’S ASSISTANT BASED UPON THE PHYSICIAN’S STATUS AS A SHAREHOLDER IN THE PROFESSIONAL SERVICE CORPORATION WHICH EMPLOYED THE PHYSICIAN’S ASSISTANT; $3 MILLION VERDICT EXCESSIVE (FIRST DEPT). ​

The First Department set aside the verdict against the attending physician and found the $3 million damages award excessive in this medical malpractice action. The attending physician, Tigges, could not be held vicariously liable fir the negligence of the physician’s assistant, Caputo, based on Tigges being a shareholder in the professional service corporation which employed Caputo. The First Department held the plaintiff should stipulate to damages in the amount of $500,000:

Dr. Tigges was not involved in plaintiff’s treatment during her admission, notwithstanding that he was often listed as the attending physician on her chart … . He was also not liable for Caputo’s conduct pursuant to Department of Health Regulations (10 NYCRR) § 94.2 or Business Corporation Law § 1505 (a). There is no indication that Dr. Tigges, and not another of the doctors at [defendant] OADC, was the doctor supervising Caputo at the time in question … .

We find that the $3 million jury award deviates materially from what would be reasonable compensation and should be reduced as indicated (see generally CPLR 5501[c] … ). Although none of the cases relied on by the parties are squarely on point, the subject award is well outside the range of awards in all of these cases … . Appleyard v Tigges, 2023 NY Slip Op 00260, First Dept 1-24-23

Practice Point: The attending physician in this medical malpractice case could not be held vicariously liable for the negligence of the physician’s assistant on the ground that the attending physician was a shareholder in the professional service corporation which employed the physician’s assistant.

 

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THE NATIONAL VACCINE INJURY COMPENSATION PROGRAM (PART 2 OF THE NATIONAL CHILDHOOD VACCINE INJURY ACT OF 1986), WHICH LIMITS THE LIABILITY OF A PHYSICIAN WHO ADMINISTERS A VACCINE TO $1000, DOES NOT APPLY TO PHYSICIANS WHO SUBSEQUENTLY TREAT A VACCINATED PERSON FOR A VACCINE-RELATED CONDITION (FIRST DEPT).

The First Department determined the National Vaccine Injury Compensation Program, Part 2 of the National Childhood Vaccine Injury Act of 1986 (VICP or NCVIA) (42 USC § 300aa-10 et seq.), which limits the liability of a physician who administers a vaccine to $1000, applies only to those who actually administer the vaccine and not to those who subsequently treat the vaccinated person for medical problems that may be linked to the vaccine:

On April 14, 2006, defendant Gargi Gandhi, M.D. administered two vaccines to infant plaintiff Diksha Batish, then age 13. Plaintiff’s condition subsequently deteriorated. Two weeks after vaccination, plaintiff received care from defendant Drs. Imundo and Pascual. Several months later, in September 2006, plaintiff first sought treatment from Dr. Spiro. There is no dispute that only Dr. Gandhi administered the vaccines. * * *

Here, none of the moving defendants administered the vaccine. Neither … did they treat plaintiff for conditions allegedly exacerbated by subsequent vaccinations. They only provided post-vaccination care. Thus, the moving defendants cannot be considered vaccine administrators under the VICP. Since the moving defendants are not vaccine administrators, the VICP is inapplicable, and any toll authorized by the VICP is also inapplicable (see 42 USC § 300aa-16[c]). Batish v Gandhi 2022 NY Slip Op 07494, First Dept 12-29-22

Practice Point: The National Vaccine Injury Compensation Program, Part 2 of the National Childhood Vaccine Injury Act of 1986 (VICP or NCVIA) (42 USC § 300aa-10 et seq.) limits the liability of a physician who administers a vaccine to $1000.

 

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PLAINTIFF WAS PRESCRIBED ATIVAN, WHICH CAUSES DROWSINESS, IN THE EMERGENCY ROOM, WAS DISCHARGED WHILE UNDER ITS INFLUENCE AND WAS INVOLVED IN A CAR ACCIDENT; THE MEDICAL MALPRACTICE CAUSES OF ACTION BASED ON THE ALLEGEDLY NEGLIGENT DISCHARGE AND THE ALLEGED FAILURE TO EXPLAIN THE EFFECTS OF ATIVAN BOTH SOUNDED IN MEDICAL MALPRACTICE AND PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT).

​The Fourth Department determined defendants’ motion for summary judgment in this medical malpractice action was properly denied. Plaintiff was treated at the emergency department of defendant hospital and prescribed Ativan, a drug which causes drowsiness. Plaintiff was released while under the influence of the drug and had a car accident. Plaintiff alleged he was negligently discharged and was not informed of the possible effects of Ativan:

… [T]he evidence … raised issues of fact whether Iannolo [the treating physician] deviated from the standard of care by discharging plaintiff at a time when the concentration of Ativan in his system was at or near its peak and while plaintiff was experiencing the effects of the medication, including drowsiness. Those submissions also raised issues of fact whether any such deviation was a proximate cause of plaintiff’s injuries … . Regarding the hospital’s motion, the evidence that the hospital submitted raised issues of fact whether … a nurse employed by the hospital deviated from the standard of care and committed an act of negligence independent of Iannolo … , by failing to explain the discharge instructions to plaintiff or advise him of the possible effects of Ativan, and whether any such deviation was a proximate cause of plaintiff’s injuries … .

… [T]he hospital … contends that the court erred in denying its motion with respect to the negligence cause of action against it. We agree … . “A complaint sounds in medical malpractice rather than ordinary negligence where, as here, the challenged conduct [by a nurse] ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician’ to a particular patient” … . Johnson v Auburn Community Hosp., 2022 NY Slip Op 07332, Fourth Dept 12-23-22

Practice Point: Discharging a patient from the hospital emergency room while under the influence of Ativan, which causes drowsiness, may be the basis of a medical malpractice action stemming from a subsequent car accident. The failure to explain the effects of Ativan was deemed a separate cause of action sounding in medical malpractice (not ordinary negligence).

 

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ALTHOUGH THE MEDICAL MALPRACTICE ACTIONS WERE TIME-BARRED, THE RELATED WRONGFUL DEATH ACTION, BROUGHT WITHIN TWO YEARS OF DEATH, WAS NOT (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that, although the medical malpractice actions were time-barred, the related wrongful death action, brought within two years of death, was not:

Although the plaintiff denominated the second cause of action as one for “loss of services,” she alleged all the elements necessary to plead a cause of action for wrongful death, including “(1) the death of a human being, (2) the wrongful act, neglect or default of the defendant by which the decedent’s death was caused, (3) the survival of distributees who suffered pecuniary loss by reason of the death of decedent, and (4) the appointment of a personal representative of the decedent” … . … [T]he wrongful death cause of action was timely. EPTL 5-4.1 provides that an action for wrongful death “must be commenced within two years after the decedent’s death.” Here, the decedent died on November 9, 2013, and this action was commenced on November 9, 2015. Thus, “the cause of action alleging wrongful death was timely commenced within two years of the decedent’s death, since, at the time of [his] death, [the] cause of action sounding in medical malpractice was not time-barred” … .Proano v Gutman, 2022 NY Slip Op 07253, Second Dept 12-21-22

Practice Point: Here the medical malpractice actions were time-barred, but the related wrongful death actions, brought within two years of death, were not.

 

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THE MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD NOT HAVE BEEN GRANTED; THE MOTION TO SET ASIDE THE VERDICT AS AGAINST THE WEIGHT OF THE EVIDENCE SHOULD HAVE BEEN GRANTED; A NEW TRIAL IS NECESSARY BECAUSE AN APPELLATE COURT CANNOT MAKE NEW FINDINGS OF FACT IN A JURY TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice case. determined the motion to set aside the verdict as a matter of law should not have been granted. but the motion to set aside the verdict as against the weight of the evidence should have been granted, explaining the difference:

“‘A motion for judgment as a matter of law pursuant to CPLR 4404(a) may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party'” … . “In considering such a motion, the facts must be considered in a light most favorable to the nonmovant” … . …

… “[A] motion to set aside a jury verdict as contrary to the weight of the evidence should be granted ‘[o]nly where the evidence so preponderates in favor of the unsuccessful litigant that the verdict could not have been reached on any fair interpretation of the evidence'” … . … “‘Whether a particular factual determination is against the weight of the evidence is itself a factual question. In reviewing a judgment of the Supreme Court, the Appellate Division has the power to determine whether a particular factual question was correctly resolved by the trier of facts. If the original fact determination was made by a jury, as in this case, and the Appellate Division concludes that the jury has made erroneous factual findings, the court is required to order a new trial, since it does not have the power to make new findings of fact in a jury case'” … . * * *

As to the weight of the evidence, based on the record, we find that the verdict in favor of the plaintiffs could not have been reached on any fair interpretation of the evidence, and must be set aside (see CPLR 4404[a] …). Accordingly, we reverse the judgment, reinstate the complaint, grant that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial, and remit the matter to the Supreme Court, Queens County, for a new trial…. . Osorio v New York City Health & Hosps. Corp., 2022 NY Slip Op 07072, Second Dept 12-14-22

Practice Point: When an appellate court determines the verdict should be set aside as against the weight of the evidence in a jury trial it must order a new trial because an appellate court does not have the authority to make new findings of fact in a jury trial.

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT CONCLUSORY AND THE ACTION SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND; A HOSPITAL WILL NOT BE VICARIOUSLY LIABLE FOR SURGERY COMPETENTLY PERFORMED BY HOSPITAL STAFF AT THE DIRECTION OF THE PRIVATE PHYSICIANS WHO DID THE PRIMARY SURGERY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the medical malpractice action against the defendant surgeons should not have been dismissed on the ground plaintiff’s expert’s affidavit was conclusory. The affidavit raised questions of fact about whether defendant surgeon deviated from the requisite standard of care. The court noted that the plaintiff’s expert did not review the pleadings and all the evidence was irrelevant. The court also noted that the action against the hospital based upon the surgical procedures performed by hospital staff was properly dismissed. A hospital will not be vicariously liable where hospital staff competently carry out the orders of the private physicians who did the primary surgery:

… [T]he plaintiffs’ expert’s opinion did not consist of merely general and conclusory allegations unsupported by competent evidence. The plaintiffs’ expert made specific allegations based upon the operative reports and CT scan which were part of the medical records, and addressed specific assertions made [defendants’] expert. …

Although the plaintiffs’ expert did not review the pleadings, and all the evidence, that failure went to the weight, not the admissibility of his opinion . The operative report regarding the hysterectomy was part of the injured plaintiff’s hospital records, was electronically signed by Germain [defendant surgeon], and was relied upon by [defendants’] expert … . Therefore, the plaintiffs’ expert properly relied upon that report in reaching his conclusions. * * *

At the conclusion of the surgery, the physician assisting Germain was replaced by an employee of the hospital. However, by that time, the surgery was over, and the doctors were closing up the injured plaintiff. There is no allegation or evidence that the hospital physician committed malpractice or could have had any influence on the course of the surgery at that juncture.

“Where hospital staff, such as resident physicians and nurses, have participated in the treatment of the patient, the hospital may not be held vicariously liable for resulting injuries where the hospital employees merely carried out the private attending physician’s orders,” except when the hospital staff follows orders knowing that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders, the hospital’s employees have committed independent acts of negligence, or the words or conduct of the hospital give rise to the appearance and belief that the physician possesses the authority to act on behalf of the hospital … . Bhuiyan v Germain, 2022 NY Slip Op 06901, Second Dept 12-7-22

Practice Point: Here, in this medical malpractice case, the fact that plaintiff’s expert did not review the pleadings and all the evidence was not a legitimate reason for rejecting the expert’s affidavit. The expert relied on relevant evidence and the affidavit was not conclusory.

Practice Point: A hospital will not be vicariously liable for surgery competently done by hospital staff at the direction of the private physicians who did the primary surgery.

 

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