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DEFENDANT TREATING NEUROLOGIST INDICATED ON A DMV FORM FOR REINSTATEMENT OF THE PATIENT-DRIVER’S LICENSE THAT THE DRIVER’S LAST SEIZURE WAS TWO YEARS BEFORE WHEN, IN FACT, THE LAST SEIZURE WAS FOUR MONTHS BEFORE; TWO MONTHS AFTER REINSTATEMENT OF THE LICENSE, THE DRIVER HAD A SEIZURE-RELATED ACCIDENT IN WHICH PLAINTIFFS’ DECEDENTS DIED; THE ACTION AGAINST THE NEUROLOGIST SOUNDED IN ORDINARY NEGLIGENCE, NOT MEDICAL MALPRACTICE, AND WAS THEREFORE TIMELY BROUGHT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the action sounded in negligence, not medical malpractice, rendering the action timely brought. Defendant neurologist was treating the non-party driver for seizures. In filling out a NYS Department of Motor Vehicles (DMV) form for reinstatement of the driver’s license, defendant stated that the driver’s last seizure was about two years before, when in fact the last seizure was four months before. To be entitled to reinstatement of the driver’s license, the driver must have been free of seizures for the previous 12 months. Two months after the driver’s license was reinstated, the driver had a seizure which resulted in a horrific traffic accident in which two people died. The lawsuit was brought by their estates:

… [P]laintiffs’ survival-action claims, premised on the theory that Dr. Avila erroneously recorded the date of the driver’s last seizure in the DMV form, which error led to the DMV reinstating the driver’s license, sound in ordinary negligence. The crux of the survival-action claims is not Dr. Avila’s negligence in furnishing medical treatment to the driver; rather, the essence of the claims is that Dr. Avila failed to fulfill a different duty. The nature of the act underlying those claims — transcribing a date from a treatment note to a governmental administration form — “is more administrative than medical in nature” … . Because the act underpinning the survival-action claims is administrative in nature, jurors can use their common everyday experience to evaluate whether Dr. Avila exercised due care … . That a physician made the alleged administrative error does not transform the claim from one sounding in ordinary negligence to one for medical malpractice; the characterization of a particular claim depends not on the title of the actor but on the nature of the challenged act … .

Ultimately, the core issue related to plaintiffs’ survival-action claims — whether Dr. Avila failed to exercise due care in recording a fact on the DMV form — may not implicate questions of medical competence or judgment regarding the treatment of the driver … . Unlike the inquiry on a medical malpractice claim, whether Dr. Avila breached his duty to exercise due care in recording a fact on the DMV form does not depend on an analysis of the medical treatment rendered to the driver … . Lafferty v Avila, 2026 NY Slip Op 05147, First Dept 8-27-26

Practice Point: If a jury does not need to analyze the medical treatment rendered by a doctor to determine a doctor’s negligence, the action does not sound in medical malpractice and is subject to a three-year statute of limitations for ordinary negligence.

 

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THERE WAS NO EVIDENCE DR. VELASQUEZ WAS NEGLIGENT; HIS SUMMARY JUDGMENT MOTION IN THE MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED; THE OPINION IS FACT-SPECIFIC AND DETAILED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Mendez, determined this medical malpractice action against one of the defendants, Dr. Velasquez, should have been dismissed. The opinion is fact-specific and goes through the evidence in granular detail. Roth v Velasquez, 2026 NY Slip Op 04915, First Dept 8-6-26

 

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A DISCOVERY RULE ENACTED IN 2018 REACHED BACK TEN MONTHS BEFORE THE RULE WAS ENACTED TO RENDER TIMELY THIS MEDICAL MALPRACTICE CAUSE OF ACTION ALLEGING THE NEGLIGENT FAILURE TO DIAGNOSE CANCER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice cause of action alleging the negligent failure to diagnose cancer was rendered timely by a discovery rule which reaches back ten months before the discovery rule was enacted:

The causes of action arising from negligent failure to diagnose cancer accrued on October 23, 2014, when the defendants failed to advise [plaintiff] to submit to additional testing, such as a mammogram. However, the 2018 enactment also includes a provision providing for the revival of certain causes of action, such that an action may be commenced within six months after the effective date, i.e., by July 31, 2018, when it alleges a failure to diagnose cancer or a malignant tumor, and when it became time-barred within 10 months prior to the effective date of the statute—January 31, 2018, that is, on or after March 31, 2017 (see L 2018, ch 1, § 4…). Here, the causes of action qualify for revival pursuant to that provision, as they became time-barred in April 2017, within the 10-month period prior to the act’s effective date, and this action was commenced on June 11, 2018, prior to the July 31, 2018 deadline … . Rhodes v Dilena, 2026 NY Slip Op 04444, Second Dept 7-15-26

Practice Point: Consult this decision for an explanation of the application of the discovery rule enacted in 2018 providing for the revival of a medical malpractice action alleging negligent failure to diagnose cancer after the statute of limitations expired.

 

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THE DENIAL OF THE JURY’S REQUEST TO SEE MRI IMAGES ON THE GROUND VIEWING THEM WAS “BEYOND THE KEN” OF THE JURY WAS REVERSIBLE ERROR (SECOND DEPT).

The Second Department, reversing the denial of plaintiff’s motion to set aside the verdict, determined the judge should not have withheld from the jury MRI images on the ground they were “beyond the ken” of the jury:

… [T]he Supreme Court failed to respond meaningfully to the jury’s request to view all of the infant plaintiff’s MRI images during deliberations … . Although the MRI images were admitted into evidence at trial, the court denied the jury’s request to view the MRI images during deliberations on the ground that viewing them was “beyond the ken of a juror.” … [T]he error deprived the plaintiffs of “substantial justice” with respect to the jury’s finding that Halitsky’s departure was not a substantial factor in causing the infant plaintiff’s injury … . Accordingly, the court should have granted that branch of the plaintiffs’ motion which was pursuant to CPLR 4404(a) to set aside so much of the jury verdict as was in favor of Halitsky …. J.T.M. v Parrinello, 2026 NY Slip Op 03787, Second Dept 6-17-26

Practice Point: Here the judge should not have refused the jury’s request to view MRI images which were in evidence on the ground they were “beyond the ken” of the jury.

 

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ALTHOUGH PLAINTIFF’S EXPERT WAS NOT BOARD CERTIFIED IN EMERGENCY MEDICINE, THE EXPERT SET FORTH A SUFFICIENT FOUNDATION FOR THE OPINION; THE HOSPITAL DID NOT DEMONSTRATE IT COULD NOT BE HELD VICARIOUSLY LIABLE FOR TREATMENT BY AN INDEPENDENT PHYSICIAN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice action should not have been dismissed. Plaintiff’s medical expert need not be board certified in emergency medicine to be qualified to offer an opinion. The hospital did not demonstrate it could not be held vicariously liable for the care provided by an independent physician:

Contrary to the defendants’ contention, the plaintiffs’ expert was qualified to offer an opinion despite not being board certified in emergency medicine. “‘A physician need not be a specialist in a particular field to qualify as a medical expert and any alleged lack of knowledge . . . [or] expertise goes to the weight and not the admissibility of the testimony'” … . Here, the plaintiffs’ expert set forth a sufficient foundation for his or her opinion, based on his or her clinical experience and familiarity with the applicable standards of care … . …

… [G]enerally, a hospital may not be held vicariously liable for the negligence of a private attending physician chosen by the patient … . “However, an exception to the rule that a hospital may not be held vicariously liable for the treatment provided by an independent physician applies where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing, or a nonemployee physician otherwise acted as an agent of the hospital or the hospital exercised control over the physician” … . Here, the defendants failed to demonstrate, prima facie, that [the hospital] was free from vicarious liability for [plaintiff’s] care and treatment in its emergency department as a matter of law … . Valitutto v Staten Is. Univ. Hosp., 2026 NY Slip Op 03020, Second Dept 5-13-26

Practice Point: Here plaintiff’s expert was qualified to offer an opinion despite not being board certified in emergency medicine.

Practice Point: Here the hospital did not demonstrate it could not be held vicariously liable for treatment by an independent physician.

 

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THE EXPERT TESTIMONY OFFERED TO DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN LOW-BIRTH-WEIGHT AND AUTISM SHOULD HAVE BEEN PRECLUDED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the plaintiffs’ verdict in this medical malpractice action and ordering a new trial, determined the expert testimony offered to demonstrate low-birth-weight has a causal relationship with autism should have been precluded:

There was no testimony at the Frye hearing that any of the studies Rubenstein [plaintiffs’ expert] relied upon concluded that premature birth causes autism. Rather, Rubenstein’s testimony established that the exact mechanism of how autism develops is unknown and that studies found a causal inference or association between prematurity and autism, not a causal relationship. Further, there was no testimony elicited at the Frye hearing that demonstrated that the medical community, specifically pediatric neurologists, have accepted that prematurity causes autism or even that a child’s birth at 25 weeks versus 27 weeks increases that child’s risk of later being diagnosed with autism. In any event, the gap between the statistical analysis relied upon by Rubenstein regarding the prevalence of autism in preterm, low-birth-weight infants and his testimony that the pathophysiology and causes of autism are unknown was too great to allow him to opine as to his theory of causation in this action. Based upon the foregoing, the Supreme Court erred in denying that branch of the defendants’ motion which was to preclude Rubenstein’s testimony on this theory of causation. Terehoff v Frenkel, 2026 NY Slip Op 02688, Second Dept 4-29-26

Practice Point: Consult this decision for insight into when observational studies will not support an expert’s testimony about causation. Here the testimony purporting to link low-birth-weight to autism should have been precluded.

 

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IN A MEDICAL MALPRACTICE TRIAL, THE “ERROR IN JUDGMENT” JURY INSTRUCTION IS ONLY APPROPRIATE WHERE A PHYSICIAN IS CONFRONTED WITH SEVERAL MEDICALLY ACCEPTABLE TREATMENTS AND CHOOSES ONE; HERE IT WAS ALLEGED DEFENDANT MISREAD AN X-RAY; GIVING THE “ERROR IN JUDGMENT” INSTRUCTION WAS REVERSIBLE ERROR (FOURTH DEPT). ​

The Fourth Department, ordering a new trial in this medical malpractice case, determined the judge should not have given the jury an “error in judgment” jury instruction. The complaint alleged defendant physician failed to notice an abnormality in a lung X-ray. The “error in judgment” instruction is only appropriate when a physician is confronted with several medically acceptable treatments and chooses one, not the case here:

“[A]n error [in] judgment charge is appropriate in a case where a doctor is confronted with several alternatives and, in determining appropriate treatment to be rendered, exercises [their] judgment by following one course of action in lieu of another” … . However, such a charge should be given “only in a narrow category of medical malpractice cases in which there is evidence that [the] defendant physician considered and chose among several medically acceptable treatment alternatives” … . An error in judgment charge is not warranted where, as here, there was no evidence introduced at trial that the defendant physician “made a choice between or among medically acceptable alternatives” … , and the “plaintiffs’ [sole] theory of [the] defendant’s alleged malpractice ar[ose] from [the] defendant’s alleged lack of due care in assessing [the] plaintiff’s condition,” inasmuch as “the [sole] issue before the jury was [then] whether [the] defendant’s failure to diagnose [the] plaintiff’s [condition] constituted a deviation from medically accepted standards of care” … . Inasmuch as the error in judgment charge here “create[d] a risk that [the] jury w[ould] find that, because [Sobieraj] exercised his . . . best judgment, there can be no liability despite a failure to adhere to generally accepted standards of care,” we conclude that the court’s error in giving the charge cannot be deemed harmless … , and plaintiffs are thus entitled to a new trial.  Burns v Sobieraj, 2026 NY Slip Op 02537, Fourth Dept 4-24-26

Practice Point: In a medical malpractice action, the “error in judgment” jury instruction is only appropriate where there evidence of more than one appropriate treatment and the physician chooses one. It was reversible error to give the instruction where it was alleged the defendant misread an X-ray.

 

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A PLAINTIFF NEED NOT SUBMIT ANY EVIDENCE IN OPPOSITION TO A MOTION TO DISMISS AS OPPOSED TO A MOTION FOR SUMMARY JUDGMENT; HERE THE COMPLAINT STATED CAUSES OF ACTION FOR MEDICAL MALPRACTICE AND LACK OF INFORMED CONSENT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss the medical malpractice complaint should not have been granted, noting that a plaintiff need not present any evidence in opposition to a motion to dismiss, as opposed to a motion for summary judgment:

Supreme Court improperly granted the motion of [defendants] pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them based on the plaintiff’s failure to comply with the court’s earlier directive “to provide an affidavit from a physician attesting [to] the merits of her claims.” The burden does not shift to the nonmoving party on a motion pursuant to CPLR 3211(a)(7). A plaintiff need not make an evidentiary showing in support of the complaint in order to defeat such a motion and will not be penalized for failure to do so … . Here, where the motion was not converted into one for summary judgment, the plaintiff had no obligation to provide an affidavit from an expert to support the allegations in the amended complaint in order to defeat the [defendants’] motion … . * * *

… [A]ccepting the allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently stated causes of action alleging medical malpractice and lack of informed consent … . Wilber v Borgen, 2026 NY Slip Op 02001, Second Dept 4-1-26

Practice Point: A plaintiff need not submit any evidence in opposition to a motion to dismiss the complaint. Here the judge should not have granted the motion on the ground the plaintiff did not comply with the court’s directive to submit an affidavit from a physician.

 

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THE MEDICAL MALPRACTICE COMPLAINT DID NOT ALLEGE A LACK OF INFORMED CONSENT; THEREFORE REFERENCES TO A LACK OF INFORMED CONSENT CAUSE OF ACTION IN PLAINTIFFS’ BILL OF PARTICULARS WERE STRICKEN (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this medical malpractice action, determined the hospital’s motion to strike allegations of lack of informed consent should have been granted. That cause of action was not identified in the complaint. Therefore plaintiffs could not use their bill of particulars to assert it:

We agree with the Hospital defendants that the court erred in denying that part of their motion seeking, in effect, to strike the allegations of lack of informed consent from plaintiffs’ amended bill of particulars to the Hospital defendants, and we modify the order accordingly. “[A] bill of particulars is intended to amplify the pleadings, limit the proof, and prevent surprise at trial . . . Whatever the pleading pleads, the bill must particularize since the bill is intended to [afford] the adverse party a more detailed picture of the claim . . . being particularized . . . A bill of particulars may not be used to allege a new theory not originally asserted in the complaint” … . For those purposes, “[l]ack of informed consent is a distinct theory of medical malpractice liability rooted in a specific professional duty to reasonably inform and obtain consent from the patient,” and claims for traditional medical malpractice and lack of informed consent ” ‘comprise[ ] different elements’ ” … . Here, we conclude that “[t]he complaint is based solely on [traditional] medical malpractice and does not contain a separate cause of action for lack of informed consent” … and that a review of the allegations in the complaint does not support the conclusion that the distinct theory of lack of informed consent was ” ‘sufficiently pleaded to avoid surprise and prejudice to [the Hospital] defendants’ ” … . Inasmuch as plaintiffs’ complaint does not presently plead a cause of action for lack of informed consent, the allegations in plaintiffs’ amended bill of particulars relating to lack of informed consent must be stricken … . Heather J. v Rochester Regional Health, 2026 NY Slip Op 01880, Fourth Dept 3-27-26

Practice Point: Here the complaint did not allege a cause of action for lack of informed consent. Therefore references to lack of informed consent in the bill of particulars can be stricken.​

 

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A HOSPITAL HAS A DUTY TO RETAIN AN INTOXICATED PATIENT WHO HAS BEEN ADMITTED INVOLUNTARILY PURSUANT TO THE MENTAL HYGIENE LAW IF THE PATIENT IS INCAPACITATED TO A DEGREE THERE WAS A LIKELIHOOD OF HARM TO THE PATIENT OR OTHERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant hospital breached its duty to retain the decedent for emergency treatment because decedent was incapacitated by alcohol to a degree there was a likelihood of harm to decedent or others:

A hospital does not owe an intoxicated patient, who went to the hospital voluntarily, a duty to prevent that patient from leaving the hospital against medical advice even when that patient has been admitted to the hospital for medical treatment … . By contrast, however, the decedent here was admitted involuntarily (see Mental Hygiene Law former § 22.09 [e]). Defendant therefore had a duty to retain decedent for emergency treatment if decedent was incapacitated by alcohol or substances to such a degree that there was a likelihood to result in harm to decedent or others, as those terms are defined under Mental Hygiene Law former § 22.09 … .

Assuming, arguendo, that defendant met its burden of demonstrating that it did not breach its duty to ensure that decedent was no longer incapacitated to the degree that there was a likelihood to result in harm to decedent or others, we conclude that plaintiff raised an issue of fact. Plaintiff’s expert opined that, under the circumstances and “especially in such proximity to the events that occurred in the hospital in the hours prior to discharge,” it was a breach of the standard of care to allow decedent to be discharged … . Guadagno v Erie County Med. Ctr. Corp., 2026 NY Slip Op 01698, Fourth Dept 3-20-26

Practice Point: A hospital has a duty to retain an intoxicated patient who has been admitted involuntarily if the patient is incapacitated to a degree there is a likelihood of harm to the patient or others. That duty is not triggered by an intoxicated patient who went to the hospital voluntarily.

 

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