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IN NEW YORK THERE ARE NO CAUSES OF ACTION FOR “PRECONCEPTION NEGLIGENCE” OR “WRONGFUL LIFE;” HERE MOTHER ALLEGED THE DRUG SHE HAD BEEN TAKING FOR EPILEPSY BEFORE SHE LEARNED SHE WAS PREGNANT CAUSED THE BABY TO BE BORN WITH SPINA BIFIDA (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiffs’ actions for “preconception negligence” and “wrongful life” should have been dismissed. Plaintiff mother had been treated for epilepsy for years with a drug (VPA). She became pregnant while taking the drug and stopped taking it as soon as she learned she was pregnant. The baby was born with spina bifida:

Defendants treated the infant plaintiff’s mother for epilepsy. To control her seizures, they prescribed valproic acid (VPA), which the mother had been taking for years while under the care of other physicians. Unbeknownst to all, while she was on VPA, the mother conceived the infant plaintiff. Although the VPA was discontinued when the mother learned that she was pregnant, the infant was born with spina bifida, for which she seeks to hold defendants responsible.

It is well established that an infant has no cause of action for preconception negligence … . The infant’s claims that defendants failed to ensure that her mother was on birth control and monitored regularly for pregnancy while on VPA sound in “wrongful life,” for which there is also no cause of action … . Z.L. v Mount Sinai Hosp., 2022 NY Slip Op 04112, First Dept 6-23-22

Practice Point: New York does not recognize actions for “preconception negligence” or “wrongful life.” Here mother alleged the epilepsy drug she was taking until she learned she was pregnant caused her baby to be born with spina bifida. Both causes of action should have been dismissed.

 

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DEFENDANT REHABILITATION AND RECOVERY SERVICES DID NOT DEMONSTRATE IT DID NOT HAVE A DUTY TO PREVENT A PERSON UNDER ITS SUPERVISION AND CARE FROM HARMING MEMBERS OF THE GENERAL PUBLIC; PLAINTIFF WAS KIDNAPPED AND RAPED BY A PERSON WITH A VIOLENT PAST WHO WAS UNDER DEFENDANT’S CARE AND SUPERVISION (THIRD DEPT). ​

The Third Department determined the defendant Rehabilitation Support Services’ (RSS’s) motion for summary judgment in this negligence, negligent supervision, medical malpractice, negligent infliction of emotional distress action was properly denied. Plaintiff was kidnapped and raped by Jose Marlett who was under the care and supervision provided by RSS, a rehabilitation and recovery program for persons who have mental illness and substance abuse issues:

Marlett had been an outpatient client at RSS for approximately one year and had been a resident in its apartment program for approximately one to three months prior to his receipt of personal recovery services. Marlett’s application for RSS services included his diagnoses of bipolar disorder and schizoaffective disorder, and a history of delusions, hallucinations, paranoia, suicidal and homicidal ideations and incarceration. RSS identified Marlett’s risks as suicide and violence, and noted that he had a history of physical altercations, threatening and attempting to harm others and was a danger to himself and others. In order to receive RSS services, Marlett was required to forego other psychiatric and mental health treatment and RSS essentially became the exclusive provider of Marlett’s medication management, clinical counseling, therapy and psychiatric assessments. * * *

… [W]e find that defendants failed to prove a lack of duty to take reasonable steps to prevent Marlett from harming members of the general public. * * *

[Re: medical malpractice] Defendants failed to submit a competent expert medical opinion, instead submitting a speculative and conclusory affidavit by its nonphysician director that failed to provide any factual basis showing that they complied with professional standards … .* * *

“A cause of action for negligent infliction of emotional distress generally requires the plaintiff to show a breach of a duty owed to him or her which unreasonably endangered his or her physical safety, or caused him or her to fear for his or her own safety” … . “Unlike intentional infliction of emotional distress, … the Court of Appeals has not stated that extreme and outrageous conduct is an essential element of a cause of action to recover damages for negligent infliction of emotional distress” … . Doe v Langer, 2022 NY Slip Op 03957, Third Dept 6-15-22

Practice Point: Here defendant provided rehabilitative and recovery services for persons with mental illness and substance abuse problems. A person, with a violent past, was under defendant’s care and supervision when he kidnapped and raped plaintiff. Defendant did not demonstrate that it did not have a duty to protect members of the general public from a violent person under its care and supervision.

 

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WHEN A MUTUAL INSURANCE COMPANY WHICH ISSUES PROFESSIONAL LIABILITY POLICES TO MEDICAL PROFESSIONALS DEMUTUALIZES, THE CASH-CONSIDERATION PROCEEDS, ABSENT AGREEMENTS TO THE CONTRARY, ARE DISTRIBUTED TO THE EMPLOYEE, NOT THE EMPLOYER WHICH PAID THE PREMIUMS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined that when a mutual insurance company which issued professional liability policies to medical professionals demutualizes, where the employer paid the premiums, the distribution of cash consideration goes to the employee, not the employer:

Medical Liability Mutual Insurance Company (MLMIC), formerly a mutual insurance company, issued professional liability insurance policies to the eight medical professionals who are litigants in the eight cases before us on these appeals. The premiums for those policies were paid by their employers. In October 2018, MLMIC demutualized and was acquired by National Indemnity Company. Pursuant to its “Plan of Conversion”—approved by the New York State Department of Financial Services—MLMIC sought to distribute $2.502 billion in cash consideration to “Eligible Policyholders.”

The question presented is as follows: when an employer pays premiums to a mutual insurance company to obtain a policy for its employee, and the insurance company demutualizes, who is entitled to the proceeds from demutualization: the employer or the employee? We answer that, absent contrary terms in the contract of employment, insurance policy, or separate agreement, the employee, who is the policyholder, is entitled to the proceeds. Columbia Mem. Hosp. v Hinds, 2022 NY Slip Op 03306, CtApp 5-19-22

Practice Point: Here the employer paid the premiums to a mutual insurance company for medical malpractice insurance for its employees (doctors). When the company demutualizes, absent some contractual provision to the contrary, the cash consideration, here $2.5 billion, is distributed to the employees (doctors), not the employer.

 

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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.

 

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PLAINTIFFS STATED A CAUSE OF ACTION FOR MEDICAL MALPRACTICE BY ALLEGING THE TREATMENT OF PLAINTIFF’S DECEDENT AGAINST THE WISHES OF DECEDENT AND DECEDENT’S HEALTH-CARE AGENTS PROLONGED DECEDENT’S PAIN AND SUFFERING; THE “WRONGFUL LIFE” LINE OF CASES DOES NOT APPLY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing Supreme Court, determined plaintiff stated a cause of action sounding in medical malpractice by alleging the treatment of plaintiff’s decedent against decedent’s wishes and the wishes of his health-care agents prolonged his pain and suffering. This action was distinguished from the “wrongful life” line of case which held that being born alive with disabilities does not constitute an injury in New York [therefore a medical malpractice lawsuit alleging the parents should have been advised to terminate the pregnancy does not state a cause of action]. Supreme Court had based its dismissal of the complaint on a Second Department case (Cronin) which followed the “wrongful life” line of reasoning. The First Department refused to follow the Second Department:

… [In] Cronin, it appears that plaintiff sought damages based on a claim “that the defendant wrongfully prolonged the decedent’s life by resuscitating him against the express instructions of the decedent and his family” (Cronin, 60 AD3d at 804). In contrast, here, plaintiff seeks damages for decedent’s pain and suffering, which the complaint alleges was the result of medical malpractice in that defendants breached the standard of care by administering treatments without consent and in direct contravention of decedent’s wishes expressed in his advance directives as reaffirmed by his health care agents … .Greenberg v Montefiore New Rochelle Hosp., 2022 NY Slip Op 02194, First Dept 3-31-22

Practice Point: A decision in one appellate-division department does not bind another department. Here the “wrongful life” line of cases did not preclude a medical malpractice action alleging the treatment of plaintiff’s decedent against decedent’s wishes and against the wishes of decedent’s health-care agents prolonged decedent’s pain and suffering.

 

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PLAINTIFFS’ EXPERT DID NOT ADDRESS THE OPINION OF DEFENDANTS’ EXPERT; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court and dismissing the complaint in this medical malpractice case, determined the defendants’ motion for summary judgment should have been granted because plaintiffs’ expert did not address the defendants’ expert’s opinion. The defense expert averred plaintiff’s problems were caused by cancer. Plaintiffs’ expert took the position plaintiff never had cancer, a position contradicted by the record:

Defendants made a prima facie showing of entitlement to summary judgment through their expert, who averred that defendants’ treatment of plaintiff was within the standard of care and any difficulties with the treatment were caused by plaintiff’s underlying cancer. Plaintiffs’ expert failed to address that opinion, and thus failed to rebut defendants’ showing of entitlement to summary judgment … . Instead, the expert took the position that plaintiff never had cancer, a fact contradicted by the record … .. While plaintiff’s cancer had an unusual presentation, and pathologists initially disagreed as to whether she had an invasive jaw cancer, she was ultimately successfully treated by oncologists with surgery, radiation, and gene therapy. Plaintiffs’ expert entirely ignored plaintiff’s treatment from 2016 to 2017 for a rare variant of squamous cell carcinoma, as well as her 2018 treatment for a reoccurrence … . Given those omissions, plaintiffs did not rebut defendants’ prima facie showing of entitlement to summary dismissal of the negligence and medical malpractice claims against them…. . Mulroe v New York-Presbyt. Hosp., 2022 NY Slip Op 02204, First Dept 3-31-22

Practice Point: If the defendants’ expert in a med mal case makes a prima facie showing defendants’ treatment was within the standard of care and the plaintiffs’ expert does not address that opinion, defendants’ motion for summary judgment will be granted. Med mal cases, at the summary judgment stage, turn on the experts’ affidavits. Every argument raised by the movant’s expert must be addressed by the plaintiff’s expert to raise a question of fact.

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THE COMPANY WHICH STAFFED THE HOSPITAL EMERGENCY ROOM DID NOT DEMONSTRATE THE PHYSICIANS WHO TREATED PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION WERE INDEPENDENT CONTRACTORS, AS OPPOSED TO EMPLOYEES FOR WHOM THE COMPANY WOULD BE VICARIOUSLY LIABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant NES, which staffed the hospital emergency room, should not have been granted summary judgment in this medical malpractice action. NES alleged the emergency room physicians who treated plaintiff (Perez) were independent contractors, not employees, and therefore NES was not vicariously liable for the acts or omissions of the physicians:

… [T]he evidence submitted in support of NES’s motion did not eliminate all triable issues of fact as to whether the emergency room physicians who treated Perez were independent contractors … . Although the physician agreement between NES and one of the physicians who treated Perez designated the physician an independent contractor, among other things, NES’s contract with Lutheran [the hospital] raises triable issues of fact regarding NES’s involvement in the training of the physicians with whom it contracted and the extent of NES’s obligation to participate in quality assurance and peer review activities and implement quality improvement plans … . Additionally, NES failed to submit any evidence regarding how the physicians with whom it contracted were paid … . Perez v NES Med. Servs. of N.Y., P.C., 2022 NY Slip Op 02031, Second Dept 3-23-22

Practice Point: In this medical malpractice action, the plaintiff sued the company which staffed the emergency room under a contract with the hospital. The staffing company moved for summary judgment arguing the treating physicians were independent contractors, not employees, and, therefore, the company was not vicariously liable for the acts or omissions of the physicians. The motion should not have been granted. The decision lays out the criteria for the independent-contractor versus employee analysis.

 

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THE EXPERT AFFIDAVITS SUBMITTED ON BEHALF OF THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS ALL THE ALLEGATIONS OF NEGLIGENCE; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the expert affidavits in this medical malpractice action did not address all the allegations of negligence and were otherwise deficient. Therefore defendants’ motions for summary judgment should not have been granted:

The Koyfman defendants’ expert failed to address specific allegations of negligence asserted against the Koyfman defendants … , failed to address conflicting evidence in the record … , and failed to eliminate issues of fact as to the cause of the decedent’s injuries…. . …

… [Defendant] ORMC’s expert merely summarized the medical records and certain deposition testimony, and opined in a conclusory manner that Solomon did not depart from good and accepted medical practice in rendering treatment to the decedent and did not proximately cause her injuries … .. Moreover, ORMC’s expert failed to address specific allegations of negligence asserted against [defendant] Solomon … .Martinez v Orange Regional Med. Ctr., 2022 NY Slip Op 01780, Second Dept 3-16-22

Practice Point: At the summary judgment stage, medical malpractice actions are determined by the expert affidavits. If a party’s expert does not address all the allegations of negligence, that party’s motion for summary judgment will be denied without the need to even consider the opposing papers.

 

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PLANTIFF ALLEGED FAILURE TO DIAGNOSE CANCER IN 2014 IN THIS MEDICAL MALPRACTICE ACTION; DESPITE THE ENACTMENT OF LAVERN’S LAW (CPLR 214-A) IN 2018, WHICH EXTENDED THE STATUTE OF LIMITATIONS FOR FAILURE TO DIAGNOSE CANCER BY VIRTUE OF ITS RETROACTIVE-APPLICATION AND REVIVAL PROVISIONS, THE ACTION WAS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s med mal action alleging failure to diagnose lung cancer based upon a CT scan in 2014 was time barred pursuant to the retroactive-application and revival limitations in CPRL 214-a, enacted on January 31, 2018 (called Lavern’s Law):

[Lavern’s Law] “appl[ies] to acts, omissions, or failures occurring within 2 years and 6 months prior to the effective date of this act, and not before” … . Thus, by its terms, the discovery toll in Lavern’s Law’s applies retroactively to causes of action that were not time-barred as of Lavern’s Law’s effective date, i.e., causes of action accruing on or after July 31, 2015. Plaintiff’s causes of action, which accrued on May 16, 2014, predate the earliest date to which Lavern’s Law’s retroactive discovery toll applies.

Lavern’s Law also provides for the revival of certain time-barred medical malpractice causes of action. Where a claim based on the negligent failure to diagnose cancer or a malignant tumor occurred and, “within ten months prior to the effective date of the act . . . became time-barred under any applicable limitations period then in effect, such action or claim may be commenced within six months of the effective date of the act . . . .” … . Therefore, a failure to diagnose cancer or malignant tumor cause of action that became time-barred between March 31, 2017 and January 31, 2018 may be revived if it is commenced no later than July 31, 2018 … . Because plaintiff’s claims became time-barred on November 16, 2016, the limited revival provision of the new law (for certain claims that became time-barred after March 31, 2017) does not avail her … .Ford v Lee, 2022 NY Slip Op 01414, First Dept 3-8-22

Practice Point: Lavern’s Law (CPLR 214-a, enacted in 2018) extended the statute of limitations for failure to diagnose cancer by virtue of its retroactive-application and revival provisions, neither of which applied to plaintiff here who alleged failure to diagnose in 2014.

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DEFENDANTS’ MOTIONS TO AMEND THEIR ANSWERS IN THIS MED MAL CASE TO ALLEGE PLAINTIFF’S CULPABLE CONDUCT AND COMPARATIVE NEGLIGENCE (RE: HER WEIGHT AND SMOKING) SHOULD HAVE BEEN GRANTED; THE DELAY IN MAKING THE MOTION CAUSED NO PREJUDICE; GOOD CAUSE FOR THE DELAY NEED NOT BE SHOWN; FAILURE TO INCLUDE THE AMENDED PLEADINGS WITH THE MOTION PAPERS AND DEFECTS IN VERIFICATIONS SHOULD HAVE BEEN OVERLOOKED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined: (1) the defendants in this medical malpractice actions should have been allowed to amend their answers to allege culpable conduct and comparative negligence on the part of plaintiff, citing her weight and smoking habit: (2) the defendants failure to attach the proposed amended pleading to the motion papers was a technical defect which should have been overlooked; (3) the defendants did not need to submit a certificate of merit for the proposed amendments; and (4), the defects in the defendants’ verifications should have been overlooked:

“While [defendants were] or should have been aware of the facts and theories asserted in the amended [answers] long before amendment was actually sought, delay alone is not a sufficient ground for denying leave to amend” … . Under the circumstances in this case, there was no unreasonable delay by defendants in seeking leave to amend, as plaintiff has not filed her note of issue nor has the case has been certified as trial-ready … . Further, because there was no extended delay by defendants in moving to amend, they did not need to proffer a reasonable excuse for the delay … .

… “[O]n a motion for leave to amend, [the movant] need not establish the merit of its proposed new allegations, but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit”  … Contrary also to plaintiff’s argument, Golson v Addei [216 AD2d 268] does not stand for the proposition that a comparative negligence defense in a medical malpractice case based on a plaintiff’s smoking history is per se meritless … . Johnson v Montefiore Med. Ctr., 2022 NY Slip Op 01418, First Dept 3-8-22

Practice Point: In a med mal case, plaintiff’s weight and smoking habit maybe grounds for affirmative defenses.

Practice Point: There was no need to submit a certificate of merit with the motion to amend the answers.

Practice Point: Where there has been no prejudice to the plaintiff, the unexcused delay in seeking amendment of the answers here was not a sufficient ground for denying the amendment.

Practice Point: Failure to include the proposed amended answers with the motion for leave to amend, and defects in defendants’ verifications, were technical defects which should have been overlooked.

 

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