You are here: / Medical Malpractice
image_pdfPDF Friendly Versionimage_printPrint Friendly Version
, ,

PLAINTIFF’S EXPERT’S AFFIDAVIT WAS CONCLUSORY AND DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER DEFENDANTS PROXIMATELY CAUSED PLAINTIFF’S PARALYSIS, THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over an extensive dissent, determined plaintiff’s expert failed to raise a question of fact in opposition to defendants’ motion for summary judgment in this medical malpractice case:

… [P]laintiff alleged that if [defendants] Lougee and King had made an appropriate referral to an orthopedic specialist and monitored her condition after the referral was made, plaintiff would have received necessary surgery before she became paralyzed. … [Defendants] appeal from an order denying their motion for summary judgment dismissing the complaint against them. * * *

The affidavit of plaintiff’s medical expert failed to raise a triable issue of fact in opposition inasmuch as the conclusory opinion of plaintiff’s expert that defendants’ “multiple deviations from the standard of care were a substantial contributing factor in causing [plaintiff’s injuries]” is insufficient to raise an issue of fact concerning proximate cause … . It is undisputed that treatment of a condition arising out of an issue with plaintiff’s spinal hardware is outside the scope of defendants’ practice and that referral to an orthopedic specialist … was appropriate, and plaintiff’s expert failed to identify what treatments or interventions were necessary, how defendants’ monitoring of [the orthopedic specialist] would have necessarily resulted in those treatments or interventions being performed by the specialist, and whether the timing of any such interventions would have prevented plaintiff’s injuries. Humbolt v Parmeter, 2021 NY Slip Op 04472, Fourth Dept 7-16-21

 

/0 Comments/by
, , ,

PLAINTIFF WAS BROUGHT TO THE HOSPITAL PURSUANT TO THE MENTAL HYGIENE LAW AFTER THREATENING FAMILY MEMBERS AND KILLING A DOG; DEFENDANTS RELEASED PLAINTIFF THE SAME DAY AND PLAINTIFF KILLED THE FAMILY MEMBERS; PLAINTIFF ENTERED A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL ILLNESS; THE RULE PROHIBITING A PLAINTIFF FROM TAKING ADVANTAGE OF HIS OWN WRONG DID NOT APPLY AND DEFENDANTS’ MOTION TO DISMISS THIS MEDICAL MALPRACTICE WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department determined plaintiff’s medical (psychiatric) malpractice action properly survived a motion to dismiss. Plaintiff was treated by defendants after he was brought to the hospital by the police pursuant to Mental Hygiene Law 9.41. Plaintiff had threatened family members and killed a dog. Plaintiff was released the same day and shortly thereafter killed the three family members he had threatened. Ultimately plaintiff entered a plea of not responsible by reason of mental illness or defect. The courts refused to apply the rule prohibiting a plaintiff from taking advantage of his own wrong because plaintiff was not responsible for his conduct:

With respect to the ground for dismissal asserted here, “as a matter of public policy, . . . where a plaintiff has engaged in unlawful conduct, the courts will not entertain suit if the plaintiff’s conduct constitutes a serious violation of the law and the injuries for which the plaintiff seeks recovery are the direct result of that violation” … . The rule derives from the maxim that “[n]o one shall be permitted to profit by his [or her] own fraud, or to take advantage of his [or her] own wrong, or to found any claim upon his [or her] own iniquity, or to acquire property by his [or her] own crime” … . In cases in which the doctrine applies, “recovery is precluded ‘at the very threshold of the plaintiff’s application for judicial relief’ ” … . Notably, the Court of Appeals has applied the doctrine with caution to avoid overextending it inasmuch as the rule “embodies a narrow application of public policy imperatives under limited circumstances” … . * * *

… [A]ccepting the facts as alleged in the complaint as true, we conclude that the criminal court’s acceptance of plaintiff’s plea of not responsible by reason of mental disease or defect demonstrates that, at the time of his conduct constituting a serious violation of the law, plaintiff lacked substantial capacity to know or appreciate either the nature and consequences of his conduct or that such conduct was wrong … . Thus, unlike cases applying the rule to preclude recovery, the record here establishes that plaintiff’s illegal conduct was not knowing, willful, intentional, or otherwise sufficiently culpable to warrant application of the rule … . Bumbolo v Faxton St. Luke’s Healthcare, 2021 NY Slip Op 04429, Fourth Dept 7-16-21

 

/0 Comments/by
, ,

ALTHOUGH DEFENDANTS DID NOT SEE THE PLAINTIFF, THERE IS A QUESTION OF FACT WHETHER A PATIENT-PHYSICIAN RELATIONSHIP WAS CREATED BASED UPON ANOTHER DOCTOR’S ORDER THAT PLAINTIFF BE SEEN BY THOSE DEFENDANTS WITHIN ONE OR TWO DAYS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the defendants’ motions for summary judgment in this medical malpractice action should not have been granted. One of the issues was whether defendants, who had never seen plaintiff, could be found to have had a patient-physician relationship based upon the failure to schedule an appointment within the time-frame ordered by another doctor:

… [P]laintiff acknowledges that she never received treatment from or spoke with Connolly or Retina Associates. Instead, plaintiff relies on a notation in her medical records from Twin Tiers stating that Rosenberg initially requested that she be evaluated by Retina Associates within one to two days and that a later appointment was scheduled only after Connolly apparently informed Twin Tiers that she “could wait to be seen until next week.” Moreover, after allegedly giving this advice regarding timing, Retina Associates scheduled the appointment beyond that acceptable time frame — for 13 days later. * * *

Viewing the evidence in a light most favorable to plaintiff, a triable factual question exists regarding whether the notation in Twin Tiers’ chart — attributing a comment to Connolly regarding scheduling of treatment — is sufficient to establish an implied physician-patient relationship between plaintiff and Connolly or Retina Associates … . Marshall v Rosenberg, 2021 NY Slip Op 04180, Third Dept 7-1-21

 

/0 Comments/by
,

DEFENDANT RADIOLOGIST WAS ASKED TO EVALUATE A MAMMOGRAM AS A ROUTINE-SCREENING PROCEDURE AND, ACCORDING TO HIS EXPERT, DID SO IN ACCORDANCE WITH ACCEPTED PRACTICES; PLAINTIFF WAS DIAGNOSED WITH BREAST CANCER A YEAR LATER; THE RADIOLOGIST’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, over an extensive dissent, determined the radiologist’s motion for summary judgment in this medical malpractice (failure to diagnose) action should have been granted. The radiologist was asked to evaluate a “routine-screening” mammogram and indicated there were no suspicious findings. A year later plaintiff was diagnosed with breast cancer and she died a little more than three years after that. From the radiologist’s perspective, the Second Department concluded, there was nothing to indicate that cancer was suspected and that anything more than a routine-screening was prescribed by plaintiff’s physician:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … . “The question of whether a physician owes a duty to the plaintiff is a question for the court, and is not an appropriate subject for expert opinion” … .

Here, the radiology defendants established, prima facie, that [defendant] Blumberg discharged his duty to the decedent in accordance with accepted practice for radiologists … . Siegel-Goldman, the radiology defendants’ expert, concluded that Blumberg’s interpretation of the April 21, 2010 mammogram was in conformity with accepted practices. …

… [T}he mere fact that the decedent indicated on the mammography worksheet that she experienced some pain in her left breast did not impose a heightened duty of care on Blumberg, who never saw or treated the decedent, and whose only role was to interpret the mammography images and report his findings to the prescribing physician … . Mann v Okere, 2021 NY Slip Op 04014, Second Dept 6-23-21

 

/by
,

THE DOCTOR ORDERED A CERTAIN DOSAGE OF MEDICATION BE ADMINISTERED FOR “1” MINUTE TO ADDRESS SYMPTOMS OF A STROKE, BUT A NURSE MISTAKENLY PROGRAMMED THE MACHINE TO ADMINISTER THE MEDICATION FOR “11” MINUTES; THE ACTION SOUNDS IN MEDICAL MALPRACTICE, NOT ORDINARY NEGLIGENCE (THIRD DEPT).

The Third Department determined Supreme Court properly ruled this case sounded in medical malpractice, not ordinary negligence, and explained the difference. Plaintiff had been given the wrong dosage of tPA upon arrival at the hospital to address symptoms of a stroke. Due to a mistake, the machine was programmed to administer a quantity of the drug for “11” minutes, instead of the “1” minute ordered by the doctor. The mistake was noticed after three minutes:

… [T]he case is one of medical malpractice only. “Conduct may be deemed malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician” … . “The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” … . As relevant here, plaintiffs’ claims are based upon allegations that defendants acted negligently in their medical care and treatment of plaintiff — i.e., defendants’ actions or omissions with respect to the proper dosing of tPA, the progression of the stroke with or without the proper administration of tPA, the medical benefits and risks of tPA based on the proper or improper administration of the medication, and the potential loss of the opportunity to attain tPA’s benefits based on its improper administration. Although it is undisputed that a nurse inadvertently mis-administered the tPA by erroneously programming the pump, she was assisting the physician by administering the prescribed medication and was an integral part of the process of rendering medical treatment to the patient. The nurse’s error does not transform this case to one of simple negligence rather than medical malpractice … . Holland v Cayuga Med. Ctr. at Ithaca, Inc., 2021 NY Slip Op 03896, Third Dept 6-17-21

 

/by
, , ,

THE JURY WAS INSTRUCTED ON THE CRITERIA FOR CONSCIOUS PAIN AND SUFFERING IN THIS NURSING-HOME MALPRACTICE CASE, BUT THE JUDGE DID NOT FIRST DETERMINE PLAINTIFF HAD SOME LEVEL OF COGNITIVE AWARENESS; THE CONSCIOUS PAIN AND SUFFERING CRITERIA ARE THE SAME FOR MALPRACTICE AND FOR VIOLATION OF PUBLIC HEALTH LAW 2801-D; NEW DAMAGES TRIAL ORDERED (FIRST DEPT).

The First Department vacated the $2.5 million pain and suffering award in this nursing-home malpractice case because the jury was instructed on the elements of “conscious” pain and suffering, but the judge did not first determine plaintiff had some level of cognitive awareness. The suit alleged the nursing home’s failure to monitor plaintiff-resident’s blood sugar level led to brain injury and death. A new trial on damages was ordered. The First Department noted that the criteria for “conscious pain and suffering” damages is the same for malpractice and violation of Public Health Law 2801-d:

The court should not have allowed the jury to award damages for pain and suffering without first determining that the decedent “experienced some level of cognitive awareness following the injury”… . There is no legal basis for applying this rule in the general negligence/malpractice context but not in the context of a violation of PHL 2801-d. Although PHL 2801-d(4) provides that “[t]he remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, . . . including tort causes of action, and may be granted regardless of whether such other remedies are available or are sought,” this language has been interpreted as authorizing a separate cause of action, not a separate category of damages … . Smith v Northern Manhattan Nursing Home, Inc., 2021 NY Slip Op 03818, First Dept 6-15-21

 

/by
, ,

THE MEDICAL MALPRACTICE ACTION AGAINST A FIRST-YEAR RESIDENT, WHO DID NOT EXERCISE INDEPENDENT JUDGMENT IN FOLLOWING THE DIRECTION OF HIS SUPERVISORS TO DISCONTINUE A MEDICATION, SHOULD HAVE BEEN DISMSSED; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined the medical malpractice action against Dr. Drummond, a first-year resident, should have been dismissed because he did not exercise any independent medical judgement but merely followed the direction of his supervisors when medication was discontinued:

Defendants met their initial burden on the motion by presenting the affidavit of an expert who opined that, as a first-year resident, Dr. Drummond could not and did not make any medical decisions independently and that he properly wrote the discharge instruction to discontinue the medication only after discussing and confirming that decision with the appropriate supervisors, a practice that complied with the applicable standard of care … . Defendants also submitted the deposition testimony of Drs. Drummond and Bath, which established that Dr. Drummond consulted with Dr. Bath prior to decedent’s discharge and confirmed with him that the decision had been made to discontinue the medication. Plaintiff failed to raise a triable issue of fact in opposition … . Based on that conclusion, we likewise agree with defendants that the court erred in denying that part of the motion seeking summary judgment dismissing the complaint and any cross claims against Kaleida Health insofar as the complaint asserts a claim of vicarious liability based on the alleged conduct of Dr. Drummond … . Bieger v Kaleida Health Sys., Inc., 2021 NY Slip Op 03772, Fourth Dept 6-11-21

 

/by
, ,

THE DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION CLAIMED THEY DID NOT HAVE POSSESSION OF THE VENOGRAM USED TO DIAGNOSE A BLOCKAGE IN A VEIN IN DEFENDANT’S LEG; PLAINTIFF’S APPLICATION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should not have been granted, and the application for sanctions for spoliation of evidence should not have been denied. The doctors claimed to no longer have possession of a venogram used to diagnose the blockage of a vein:

… [T]he plaintiff sufficiently established that the defendant doctors lost or destroyed the venogram imaging. The record demonstrates that it was the defendant doctors’ regular practice to record the results of venograms, that the defendant doctors had recorded the plaintiff’s other tests, and that the defendant doctors offered no explanation for the absence of the venogram imaging … . Moreover, the plaintiff established that the venogram imaging was relevant and necessary to the prosecution of the action. Contrary to the defendant doctors’ contention, the handwritten notation on the plaintiff’s treatment notes indicating the results of the venogram was not an adequate substitute. Accordingly, the Supreme Court should have granted the plaintiff’s application to impose sanctions on the defendant doctors to the extent of directing an adverse inference charge against those defendants at trial with regard to the missing evidence … . Loccisano v Ascher, 2021 NY Slip Op 03451, Second Dept 6-2-21

 

/by
, ,

ALTHOUGH PLAINTIFF’S EXPERT’S THEORY IN THIS MEDICAL MALPRACTICE CASE WAS NOT SUPPORTED BY MEDICAL LITERATURE, THE THEORY HAD AN OBJECTIVE BASIS AND SHOULD NOT HAVE BEEN PRECLUDED AFTER A FRYE HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence offered by plaintiff’s treating physician (Paget) as expert opinion should not have been precluded after a Frye hearing, despite the absence of medical literature on the topic. Plaintiff alleged a contrast agent was negligently injected into the tissue of her arm instead of a vein:

The plaintiff’s expert witness disclosure indicated that Paget was expected to testify that the defendants deviated from good and accepted medical practice in allowing gadolinium, a toxin, to leak into and remain inside the plaintiff’s arm in high concentration, which caused the plaintiff to develop injuries including a progressive fibrosing disease. … * * *

Although Paget did not rely upon medical literature unequivocally establishing that the administration of gadolinium into tissue has a causal link to the development of a systemic fibrosing disease in the absence of renal insufficiency, the plaintiff established that Paget’s theory “had an objective basis and was founded upon far more than theoretical speculation or a scientific hunch”… . The absence of medical literature directly on point pertains to the weight to be afforded to Paget’s testimony, but does not preclude its admissibility … . Farrell v Lichtenberger, 2021 NY Slip Op 03305, Second Dept 5-26-21

 

/by
, ,

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE MEDICAL MALPRACTICE AND LACK OF INFORMED CONSENT CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants should not have been awarded summary judgment on the medical malpractice and lack of informed consent causes of action:

The affidavit of the defendants’ expert failed to address and rebut the specific allegations of malpractice set forth in the complaint and bill of particulars … , and failed to eliminate all triable issues of fact as to whether [defendant doctor] properly performed the transrectal biopsy procedure and properly discharged the plaintiff despite his repeated complaints of bleeding from his rectum, and whether these alleged departures from good and accepted medical practice were a proximate cause of the plaintiff’s injuries … . …

“The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law” … .

… [T]he defendants failed to submit proof sufficient to establish … that the plaintiff was informed of the reasonably foreseeable risks associated with the treatment, or that a reasonably prudent patient in the same position would have undergone the treatment if he or she had been fully informed … . Huichun Feng v Accord Physicians, PLLC, 2021 NY Slip Op 03024, Second Dept 5-12-21

 

/by

Categories

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

Copyright © 2021 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy