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THE CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS MEDICAL MALPRACTICE ACTION; ALTHOUGH THE PLAINTIFFS’ EXPERT’S AFFIDAVIT WAS UNSWORN, IT SHOULD HAVE BEEN CONSIDERED BECAUSE DEFENDANTS DID NOT OBJECT; DESPITE PLAINTFF’S SIGNING A GENERIC CONSENT FORM, THERE WERE QUESTIONS OF FACT WHETHER THERE WAS A LACK OF INFORMED CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice action, determined: (1) the continuous treatment doctrine tolled the statute of limitations for some of the causes of action; (2) the plaintiffs’ expert’s unsworn affidavit raised questions of fact about a departure from the requisite standard of care (although the unsworn affidavit was not in admissible form, defendants did not object); and (3) the lack of informed consent cause of action should not have been dismissed:

… [C]ontinuous treatment may be found when a plaintiff “returns to the doctor because of continued pain in that area for which medical attention was first sought” … . Here, the plaintiffs demonstrated that, continuing until at least October 23, 2014, the injured plaintiff repeatedly sought treatment … for ongoing and sometimes increasing symptoms relating to her original complaints … . * * *

Although the unsworn affidavit of the plaintiffs’ expert does not constitute competent evidence to oppose a motion for summary judgment (see CPLR 2106 … ), the defendants failed to object to the unsworn affidavit on this ground in the Supreme Court and, therefore, any deficiency in the submission has been waived … . * * *

“[T]he fact that the [injured] plaintiff signed a [generic] consent form does not establish [the defendants’] prima facie entitlement to judgment as a matter of law” dismissing this cause of action insofar as asserted against the North Shore defendants … . … [T]he transcripts of the deposition testimony of the injured plaintiff and of the physicians … , submitted by the defendants in support of their motion, did not establish that the injured plaintiff was given sufficient information on the risks and alternatives regarding the materials used and the procedures performed. … [D]efendants failed to establish that a reasonably prudent person in the injured plaintiff’s position would not have declined to undergo the procedures if she or he had been fully informed of the risks and alternatives regarding the materials used and the procedures performed (see Public Health Law § 2805-d[3] …). Hall v Bolognese, 2022 NY Slip Op 06692, Second Dept 11-23-22

Practice Point: Here in this medical malpractice action the appellate court held: (1) the continuous treatment doctrine applied to toll the statute of limitations; (2) the unsworn affidavit from plaintiffs’ expert should have been considered because defendants did not object to it; (3) plaintiff’s signing a consent form did not preclude causes of action alleging a lack of informed consent.

 

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FAILURE TO FOLLOW DECEDENT’S DIRECTIVES IN A LIVING WILL OR HEALTHCARE PROXY CAN CONSTITUTE MEDICAL MALPRACTICE; HERE THERE WERE QUESTIONS OF FACT ABOUT WHICH HEALTHCARE PROXY APPLIED, WHETHER A PROXY WAS REVOKED BY DECEDENT, AND WHETHER THE TREATMENT GIVEN TO DECEDENT WAS APPROVED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact concerning which of two contradictory healthcare proxies applied and whether one of the healthcare proxies was revoked by decedent’s conversations:

Plaintiff commenced an action against defendants alleging medical malpractice based on the various health proxies and forms. Plaintiff claims that defendants breached their agreement with the decedent by administering antibiotics and IV Hydration from April 15, 2017 onwards that prolonged his life.

Here, there are issues of fact that preclude summary judgment. It is unclear whether the 1993 healthcare proxy (and the living will), the 2016 healthcare proxy or the 2017 FLST [Forgoing Life-Sustaining Treatment Including DNR] governed this dispute and whether the 2016 health care proxy was revoked by decedent through conversations with his agents, pursuant to Public Health Law § 2985(a). Significantly, it is not clear from the record whether the treatment prolonged decedent’s life, as neither side submits an expert affidavit. There is also a question as to whether decedent’s health care agents approved the very treatment for which they now seek to hold defendants liable. Lanzetta v Montefiore Med. Ctr., 2022 NY Slip Op 06554, First Dept 11-17-22

Practice Point: Failure to follow a decedent’s directives in a living will or healthcare proxy can constitute medical malpractice. The directives can be orally revoked.

 

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THE EXPERT DISCLOSURE COMBINED WITH THE BILL OF PARTICULARS GAVE SUFFICIENT NOTICE OF THE NATURE OF THE PLAINTIFF’S EXPERT’S OPINION; THE TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert in this medical malpractice action should not have been precluded from testifying on the ground the expert disclosure did not provide notice of topic the expert was prepared to testify about. The notice, in combination, with the pleadings was deemed to have provided sufficient notice. The essence of the complaint was defendant doctor’s (Ascencio’s) alleged failure to diagnose and treat a surgery-related infection. Plaintiff’s expert was going to testify the infection originated internally:

… [T]he Supreme Court precluded the plaintiff’s expert from testifying regarding his opinion that the plaintiff’s infection originated internally during the surgery on the ground that the expert disclosure referenced only the alleged failure to timely diagnose and appropriately treat a postoperative wound infection. However, in light of the other allegations in the expert disclosure and the incorporated bills of particulars, including those that addressed the alleged failure to discover a “festering infection” and/or a “surgical site infection” prior to the plaintiff’s discharge, “‘the expert witness [disclosure] statement was not so inadequate or inconsistent with the expert’s [proposed] testimony as to have been misleading, or to have resulted in prejudice or surprise'” … . Moreover, in this “prototypical battle of the experts” … , the preclusion of expert testimony concerning the origin of the plaintiff’s infection, and its effect on Ascencio’s alleged ability to discover the infection prior to the plaintiff’s discharge, prejudiced the plaintiff in presenting her case, such that the error cannot be deemed harmless … . Owens v Ascencio, 2022 NY Slip Op 06133, Second Dept 11-2-22

Practice Point: In this medical malpractice case, the plaintiff’s expert’s disclosure notice, in combination with the bill of particulars, sufficiently alerted defendants to the nature of the expert’s opinion. The preclusion of the expert’s testimony was reversible error.

 

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THE PLEADINGS ALLEGED THE NEGLIGENCE OF THE HOSPITAL’S “AGENTS AND EMPLOYEES” AND PLAINTIFF’S EXPERT POINTED TO THE ALLEGED NEGLIGENCE OF THE EMERGENCY ROOM PHYSICIAN WHO TREATED PLAINTIFF’S DECEDENT; THEREFORE THERE WAS A QUESTION OF FACT WHETHER THE HOSPITAL WOULD BE VICARIOUSLY LIABLE FOR THE EMERGENCY ROOM PHYSICIAN’S ACTS OR OMISSIONS (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined there were questions of fact whether the defendant hospital was vicariously liable for the acts or omissions of the emergency room doctor, Vaugeois, who treated plaintiff’s decedent. Although the complaint did not name Vaugeois as a defendant, the pleadings alleged the negligence of defendant’s agents and employees:

… [Plaintiff’s expert] points to Vaugeois, the hospitalist who admitted and initially rendered care to decedent, as the negligent party. … [P]laintiff’s bill of particulars speaks to defendant’s “agents and employees, specifically including” Smithem and Dey [who had been dropped from the suit]. The word “including” is not exclusive, leaving open the prospect that vicarious liability was premised on the negligence of other providers. “A hospital is responsible for the malpractice of . . . a professional whom it holds out as performing the services it offers, even though in fact he or she is an independent contractor” … . At the very least, a question of fact is presented as to whether liability may be imposed against the hospital based on an apparent authority theory … . “Pursuant to that theory, under the emergency room doctrine, ‘a hospital may be held vicariously liable for the acts of an independent physician if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician'” … . Fasce v Catskill Regional Med. Ctr., 2022 NY Slip Op 05906, Third Dept 10-20-22

Practice Point: The pleadings alleged negligence on the part of defendant hospital’s “agents and employees.” Plaintiff’s expert alleged the emergency room physician was negligent. Therefore, there was a question of fact whether the hospital would be vicariously liable for the acts or omissions of the emergency room physician.

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS CONCLUSORY AND SPECULATIVE; THE AFFIDAVIT, THEREFORE, DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert affidavit in this medical malpractice action was conclusory and speculative, and therefore did not raise a question of fact:

The plaintiff submitted the affidavit of her expert, a physician board certified in vascular surgery, who agreed with [defendant} Mansouri’s plan to perform right femoral popliteal bypass surgery. The plaintiff’s expert further opined, however, that Mansouri departed from the accepted standard of care by not choosing a different vessel once he found the popliteal artery to be diseased with plaque. The expert’s affidavit was conclusory and speculative. While the expert opined that Mansouri should have used a different vessel, he failed to specify which vessel should have been used … . For that same reason, the assertion by the plaintiff’s expert that “the vessel should have been bypassed more distally” was conclusory and speculative. Moreover, the opinion of the plaintiff’s expert that Mansouri deviated from good and accepted medical practice by failing to verify that the plaintiff had sufficient perfusion after the surgery is unsupported by competent evidence … . Coffey v Mansouri, 2022 NY Slip Op 05678, Second Dept 10-12-22

Practice Point: The plaintiff’s expert’s affidavit in this medical malpractice case was deemed speculative, conclusory and unsupported by competent evidence. Defendants’ motion for summary judgment should have been granted.

 

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THE PETITION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN DISMISSED BASED ON THE WRONG VENUE BECAUSE RESPONDENTS DID NOT OBJECT TO THE VENUE; IN THIS MEDICAL MALPRACTICE CASE BASED UPON A STILLBIRTH, MOTHER’S AND FATHER’S PETITIONS MUST BE CONSIDERED SEPARATELY; ALTHOUGH PETITIONERS DID NOT SHOW RESPONDENTS HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT, MOTHER DEMONSTRATED AN ADEQUATE EXCUSE AND RESPONDENTS’ LACK OF PREJUDICE; MOTHER’S PETITION WAS GRANTED AND FATHER’S WAS DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined mother’s (but not father’s) petition for leave to serve a late notice of claim should have been granted in this medical malpractice action stemming from a stillbirth. Supreme Court had dismissed the petition because it was brought in the wrong county. But, because the respondents did not object to the venue, the judge did not have the authority to dismiss the petition on that ground. Even though mother did not demonstrate the respondents had timely knowledge of the potential malpractice action, her petition should have been granted because she had an adequate excuse (mental health issues triggered by the stillbirth) and demonstrated respondents were not prejudiced by the delay. Father’s petition must be considered separately from mother’s and was denied (mother’s excuse did not apply to father):

… Supreme Court … erred when it raised the issue of improper venue sua sponte and dismissed this proceeding on that ground. The court should have instead decided the merits of the petition. * * *

Where leave is sought in one proceeding to pursue both a direct claim by an injured person and a derivative claim by his or her spouse, the spouse’s request for leave to serve a late notice of claim will not automatically be granted even if leave is granted to the injured person. Instead, the spouse’s request must be analyzed separately … . .* * *

While the actual knowledge factor [i.e., knowledge of the potential lawsuit] generally should be given “great weight” in the analysis … , the petitioners’ failure to satisfy that factor is not fatal to their petition for leave to serve a late notice of claim … . * * *

… [T]he petitioners met their initial minimal burden of providing a plausible argument supporting a finding of no substantial prejudice based on their contention that the respondents could defend themselves by reviewing the relevant medical records, interviewing witnesses, and consulting with experts. * * *

… [Mother] demonstrated a reasonable excuse for her delay due to her emotional and psychological injuries and the accompanying preoccupation with her well-being, as well as her attorney’s prompt investigation into the claim … . Matter of Balbuenas v New York City Health & Hosps. Corp., 2022 NY Slip Op 05526, Second Dept 10-5-22

Practice Point: The petition for leave to file a late notice of claim should not have been dismissed based on improper venue because respondents didn’t object to the venue.

Practice Point: The fact that petitioners did not demonstrate the respondents in this medical malpractice case had timely knowledge of the potential lawsuit was not fatal to the petition.

Practice Point: Here the potential medical malpractice action was based upon a stillbirth. Mother’s and father’s petitions must be considered separately.

Practice Point: Mother’s mental health issues stemming from the stillbirth constituted an adequate excuse for failing to timely serve a notice of claim.

Practice Point: Petitioners demonstrated the respondents were not prejudiced by the delay because of the medical records and the ability to interview witnesses.

Practice Point: Mother’s petition was granted, but father’s was denied because the only factor available to father was the absence of prejudice to the respondents.

 

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THE COMPLAINT STATED CAUSES OF ACTION FOR BREACH OF FIDUCIARY DUTY, FRAUD, CONSTRUCTIVE FRAUD AND MUTUAL MISTAKE; PLAINTIFFS-PHYSICIANS ALLEGED THE FORMS THE EMPLOYER REQUIRED THEM TO SIGN CONSENTING TO THE DISTRIBUTION (TO THE EMPLOYER) OF THE PROCEEDS OF THE DEMUTUALIZATION OF THE MEDICAL MALPRACTICE INSURER WERE INVALID (FIRST DEPT).

The Frist Department, reversing (modifying) Supreme Court, determined the complaint by physicians against their employer/malpractice-insurance-policy-administrator stated causes of action for breach of fiduciary duty, fraud and mutual mistake. The dispute centers on whether the physicians or the employer which paid the malpractice insurance premiums are/is entitled to the proceeds when the insurer (MLMIC) demutualized. The employer had the physicians sign forms consenting to distributing the proceeds to the employer. The physicians allege the consent forms are invalid:

Plaintiffs allege that the forms by which they authorized MLMIC to distribute their demutualization proceeds to defendant are invalid because defendant obtained them in breach of its fiduciary duty, by fraud, or due to mutual mistake. If these forms are invalid, then the demutualization proceeds belong to plaintiffs … .

Transactions between a fiduciary and beneficiary are voidable if the fiduciary acts in its own interest and does not fully disclose all material facts … . Defendant is alleged not only to have withheld the policyholder information statement from plaintiffs, but to have significantly misrepresented their contents for its own gain. These allegations, which are not conclusively refuted by the documentary evidence, are sufficient to survive a motion to dismiss.

Fraud is another basis for rescinding the consent forms … . Plaintiffs also properly allege constructive fraud, because they were owed a fiduciary duty by defendant and so were “warranted to . . . relax the care and vigilance they would ordinarily exercise in the circumstances” … . …

Mutual mistake “may not be invoked by a party to avoid the consequences of its own negligence” … . For the purposes of this motion to dismiss, however, it cannot be said as a matter of law that plaintiffs were negligent … . Cordaro v AdvantageCare Physicians, P.C., 2022 NY Slip Op 05267, First Dept 9-27-22

Practice Point: The complaint adequately alleged the employer, which also served at the medical malpractice insurance policy administrator, breached a fiduciary duty owed to the plaintiffs-physicians by requiring them to consent to the distribution (to the employer) of the proceeds of the demutualization of the medical malpractice insurance carrier. The complaint also sufficiently alleged fraud, constructive fraud and mutual-mistake causes of action.

 

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PLAINTIFF’S EXPERT AFFIDAVIT WAS SPECULATIVE AND WAS NOT SUPPORTED BY MEDICAL RECORDS; DEFENDANT PODIATRIST’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, over an extensive dissent, determined plaintiff’s expert affidavit in this medical malpractice case did not raise a question of fact. Plaintiff’s decedent presented with burns on his foot which were treated by defendant podiatrist, Papathomas. When the wound didn’t heal, defendant podiatrist referred plaintiff’s decedent to a wound clinic, which continued the same treatment given by defendant podiatrist until an infection was later detected:

The [plaintiff’s] expert relied upon certain photographs of the decedent’s foot, which were taken by the decedent’s daughter … and which allegedly showed signs that the wound was a third-degree burn, and not a second-degree burn as diagnosed by Papathomas … . According to the plaintiff’s expert, the failure to undertake “aggressive procedures,” including debridement of necrotic tissue as seen in the photographs, “predisposed” the decedent to a wound infection, which ultimately led to the partial amputation of his right foot, the stress of which caused the decedent to suffer a heart attack and die. …

… [I]t is undisputed that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting, inter alia, the affirmation of a board-certified podiatrist, who opined within a reasonable degree of podiatric certainty that the care Papathomas rendered to the decedent was in accordance with good and accepted practice, and did not proximately cause or contribute to any injuries … . * * *

… [S]ince the opinion of the plaintiff’s expert is entirely speculative and unsupported by the decedent’s medical records, the expert’s affidavit was insufficient to raise a triable issue of fact. Specifically, the decedent’s medical records establish that … after Papathomas observed that the decedent’s wound had not improved, Papathomas referred the decedent to a wound care clinic. … [At the wound clinic] the decedent received the same course of treatment prescribed by Papathomas. Moreover, the decedent’s medical records from his admissions to Plainview Hospital … contain no causal connection between the amputation of the decedent’s foot and his subsequent death, and the care the decedent received from Papathomas. Templeton v Papathomas, 2022 NY Slip Op 05228, Second Dept 9-21-22

Practice Point: Here in this medical malpractice case, plaintiff’s expert’s affidavit was speculative and was not supported by the medical records. The affidavit, therefore, did not raise a question of fact.

 

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AN AGREEMENT SIGNED BY THE PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION REQUIRING THE DEPOSITION OF EXPERT WITNESSES 120 DAYS BEFORE TRIAL IS VOID AND UNENFORCEABLE AS AGAINST THE POLICY UNDERLYING THE EXPERT DISCLOSURE PROVISIONS OF THE CPLR (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, determined the agreement signed by plaintiff in this medical malpractice action which required the deposition of expert witnesses 120 days before trial was void and unenforceable:

The issue on this appeal is whether the defendants Benjamin M. Schwartz, M.D., and Island Gynecologic Oncology, PLLC (hereinafter together the defendants), may enforce a provision in an agreement that the defendant physician’s receptionist asked the injured plaintiff to sign among other routine medical releases prior to undergoing surgery. Pursuant to this provision, if a patient commenced a medical malpractice action against the defendant physician, each party’s counsel would have the right to depose the other parties’ expert witness(es) at least 120 days before trial. We hold that this provision is unenforceable as against public policy and, in any event, the defendants waived the right to enforce the provision. Furthermore, the entire agreement is unenforceable because the Supreme Court found certain other provisions to be unenforceable, the defendants do not challenge the court’s holding regarding those provisions on appeal, and those provisions are not severable from the remainder of the agreement, including the provision at issue on appeal. * * *

Requiring experts to be made available for deposition 120 days before trial also directly contradicts the provision in CPLR 3101(d)(1)(i) that gives trial courts the discretion to “make whatever order may be just” in the event that a party retains an expert in an insufficient period of time before the commencement of trial to provide appropriate notice. This statutory provision reflects the important public policy of allowing courts to retain discretion in their role as gatekeeper in determining the admissibility of expert testimony … . For all of the foregoing reasons, we conclude that, here, the public policy in favor of freedom of contract is overridden by these other important and countervailing public policy interests … . Mercado v Schwartz, 2022 NY Slip Op 04962, Second Dept 8-17-22

Practice Point: An agreement signed by a patient, who became a plaintiff in this medical malpractice action, which required the deposition of expert witnesses 120 days before trial is void and unenforceable as against the policy underlying the expert disclosure provisions of the CPLR.

 

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THE MOTION TO DISMISS ALLEGATIONS OF MEDICAL MALPRACTICE PRIOR TO APRIL 2013 AS TIME-BARRED WAS PROPERLY GRANTED BECAUSE THE CONTINUOUS TREATMENT DOCTRINE DID NOT APPLY; THERE WAS A SUBSTANTIVE DISSENT ARGUING THAT DOCUMENTS SUBMITTED BY THE DEFENDANTS SUPPORTED APPLYING THE CONTINUOUS TREATMENT DOCTRINE AND THE MATTER SHOULD PROCEED TO DISCOVERY (SECOND DEPT).

The Second Department, over an extensive dissent, determined the continuous treatment doctrine did not apply and defendants’ motion to dismiss allegations of medical malpractice occurring before April 9, 2013, was properly granted. The decision is detailed and fact-specific and cannot be fairly summarized here:

Accepting the plaintiff’s expansive view that the mere status of receiving treatment for menopausal symptoms necessarily encompasses all conditions related to menopause and aging, would undermine the sound policy reasons behind the continuous treatment doctrine … . Such a result is contrary to the foundational policy reasons for creating the continuous treatment doctrine, and could result in expanding it to virtually all the medical care a patient receives … . * * *

From the dissent:

The Supreme Court’s determination, endorsed by my colleagues in the majority, that the records submitted by the defendants never reference or address osteoporosis is, in fact, belied by those medical records created and submitted by the defendants, which document, inter alia, that, during the relevant period, the defendants assessed, treated, and monitored the plaintiff’s bone health, despite their failure to order a bone density test.

In sum, the majority’s characterization of certain of the defendants’ own documents fails to afford the plaintiff the favorable view through which the documents should be read … . Moreover, no discovery has been conducted yet, and “[t]he resolution of the continuous treatment issue . . . should abide relevant discovery” … . Weinstein v Gewirtz, 2022 NY Slip Op 04997, Second Dept 8-17-22

Practice Point: Here the pre-discovery motion to dismiss medical malpractice causes of action as time-barred was affirmed. The dissenter argued the defendants’ own documents demonstrated the possible applicability of the continuous treatment doctrine and the matter should proceed to discovery.

 

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