Medical Malpractice – New York Appellate Digest

Employment Law, Medical Malpractice, Negligence

ALTHOUGH THE DOCTORS WHO TREATED PLAINTIFF IN THE EMERGENCY ROOM WERE NOT EMPLOYED BY THE HOSPITAL, THERE WAS A QUESTION OF FACT WHETHER THEY HAD APPARENT OR OSTENSIBLE AGENCY RENDERING THE HOSPITAL VICARIOUSLY LIABLE FOR ANY MALPRACTICE COMMITTED BY THEM (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant medical center (Peconic Bay) did not demonstrate it was not vicariously liable for any malpractice committed by two doctors (Wackett and McMahon) who treated plaintiff in the emergency room. Although neither doctor was employed by Peconic Bay, there was a question of fact whether they had apparent or ostensible agency of Peconic Bay:

… [T]he medical malpractice cause of action asserted against Peconic Bay alleged that the plaintiff twice sought treatment in Peconic Bay’s emergency room and was treated by, among others, Wackett and McMahon. In moving for summary judgment, Peconic Bay established that neither Wackett nor McMahon was its employee. Nevertheless, the evidence submitted in support of its motion for summary judgment was insufficient to demonstrate, prima facie, that the plaintiff entered Peconic Bay’s emergency room seeking treatment from Wackett or McMahon privately rather than from the hospital itself, and thus, that these physicians did not have apparent or ostensible agency of Peconic Bay … . Peconic Bay further failed to eliminate any triable issues of fact as to whether Wackett or McMahon was negligent in his care and treatment of the plaintiff … . Sessa v Peconic Bay Med. Ctr., 2021 NY Slip Op 07570, Second Depty 12-29-21

December 29, 2021/0 Comments/by Bruce Freeman

Civil Procedure, Education-School Law, Medical Malpractice, Negligence, Privilege, Public Health Law

WHERE THE MINUTES OF A “QUALITY ASSURANCE” PEER-REVIEW COMMITTEE MEETING ASSESSING THE MEDICAL TREATMENT AFFORDED A PATIENT DO NOT IDENTIFY THE SPEAKERS, THE PARTY-STATEMENT EXCEPTION TO THE PUBLIC HEALTH LAW AND EDUCATION LAW PRIVILEGE APPLIES, MAKING ALL THE STATEMENTS BY UNIDENTIFIED SPEAKERS SUBJECT TO DISCOVERY BY THE PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the party-statement exception to the privilege afforded statements made in a peer-review “quality assurance” committee’s review of the medical treatment afforded a patient applied to all of the statements made by speakers who were not identified in the meeting minutes. The defendants, who were asserting the privilege, were unable to demonstrate the statements attributed in the minutes to the “committee” were not made by a party and therefore not subject to the party-statement exception to the privilege. In other words, the statements made at the meeting by unidentified speakers were discoverable by the plaintiff in this medical malpractice action:

Requiring a defendant who is asserting the quality-assurance privilege to identify who made the statements at a medical or quality assurance review meeting, so as to demonstrate that no party statements subject to disclosure are being withheld, will further the goals of the quality-assurance privilege … . By identifying the maker of the statements at the medical or quality-assurance review meetings, only those statements that are made by a party will be subject to disclosure, and only those statements entitled to protection from disclosure will be protected. … [I]n order to avail itself of the privilege afforded by Education Law § 6527(3) and Public Health Law § 2805-m(2), the party asserting the privilege must demonstrate that no party statements subject to disclosure are being withheld, and thus must identify who said what at the meeting. …

… [T]he party-statement exception applied to those statements in the peer-review committee meeting minutes that were attributed to the committee, and for which there was no indication as to who specifically made the statements, as they were not entitled to the quality-assurance privilege set forth in Education Law § 6527(3) and Public Health Law § 2805-m(2). Siegel v Snyder, 2021 NY Slip Op 07264, Second Dept 12-22-21

December 22, 2021/by Bruce Freeman

Medical Malpractice, Negligence

THE “LACK OF INFORMED CONSENT” CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE SUIT SHOULD NOT HAVE BEEN DISMISSED; THERE WAS NO EVIDENCE PLAINTIFF INSISTED ON THE PROCEDURE DESPITE THE RISKS OR DECLINED ANY PROFFERED EXPLANATION OF THE RISKS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court) determined the “lack of informed consent” to back surgery (implantation of an X-STOP device) should not have been dismissed:

As a defense to a medical malpractice action premised upon lack of informed consent, a practitioner may proffer evidence that “the patient assured the medical . . . practitioner that he [or she] would undergo the treatment, procedure or diagnosis regardless of the risk involved, or the patient assured the medical . . . practitioner that he [or she] did not want to be informed of the matters to which he [or she] would be entitled to be informed” (Public Health Law § 2805-d[4][b]). Here, although [plaintiff’s] deposition testimony made clear that he deferred to [defendant surgeon’s] judgment as to whether he should undergo a procedure and, if so, which procedure, it does not establish that [plaintiff] either insisted on the procedure to implant the X-STOP devices, rather than other treatment options, regardless of risk, or that he refused any proffered advice. On the contrary, the record establishes that, far from insisting on a contraindicated procedure, [plaintiff] relied upon [defendant surgeon’s] professional expertise in determining the correct course of treatment. Likewise, although [defendant surgeon’s] testimony establishes that he explained the benefits of performing the procedure to implant the X-STOP devices rather than a laminectomy, he did not testify that he offered, or that [plaintiff] declined, any proffered explanation of the risks and limitations of the procedure to implant the X-STOP devices. Mirshah v Obedian, 2021 NY Slip Op 06994, Second Dept 12-15-21

December 15, 2021/by Bruce Freeman

Evidence, Medical Malpractice, Negligence

PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT SPECIFICALLY ADDRESS DEFENDANT’S EXPERT’S OPINIONS, THEREBY WARRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (FIRST DEPT).

The Frist Department determined plaintiff’s expert’s affidavit in this medical malpractice action was conclusory and did not address defendants’ expert’s opinions specifically. Therefore defendant’s motion for summary judgment was properly granted:

… [P]laintiff failed to raise an issue of fact. His expert, who is board certified in surgery and thoracic surgery, was qualified to render an opinion … . However, the opinion is conclusory and speculative and fails to address defendant’s expert’s opinions specifically … . In addition, in forming his opinion, plaintiff’s expert disregarded facts and medical evidence in the record, including a post-operative pathology report that indicated that plaintiff had a connective tissue disorder that put him at greater risk for developing serious complications if his aortic aneurysm were left untreated … . Akel v Gerardi, 2021 NY Slip Op 06792, First Dept 12-7-21

December 7, 2021/by Bruce Freeman

Evidence, Medical Malpractice, Negligence

THE DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT SUFFICIENTLY ADDRESS THE ALLEGATIONS OF NEGLIGENCE IN THIS ACTION ALLEGING THE FAILURE TO CONDUCT A PROPER SUICIDE ASSESSMENT; THE FLAWS IN THE EXPERT’S AFFIDAVIT PROVIDE A USEFUL CHECKLIST FOR WHAT SHOULD HAVE BEEN ADDRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ expert did not sufficiently address the allegations of negligence. Therefore defendant’s motion for summary judgment in this medical malpractice action should have been denied. Plaintiffs alleged defendants did not properly conduct a suicide assessment of plaintiffs’ decedent (Nodor), who committed suicide four weeks after he was seen by defendants. The description of the flaws in the expert’s affidavit reads like a checklist for the required contents of a defense expert’s affidavit in a medical malpractice action:

… [T]he defendants failed to establish, prima facie, that they did not depart from the standard of care, or that any such departure did not proximately cause Nodar’s injuries. With respect to the plaintiffs’ allegations that the defendants failed to conduct a proper suicide risk assessment during a scheduled doctor visit by Nodar, which was just weeks before Nodar attempted suicide by jumping off his roof, the defendants’ expert failed to set forth the standard of care for conducting a suicide risk assessment … . The expert’s conclusory assertion that the suicide risk assessment that was conducted on that date did not deviate from the standard of care was insufficient to refute the plaintiffs’ specific allegations of negligence … . In addition, the defendants’ expert did not address the plaintiffs’ allegation that the defendants failed to schedule or conduct a timely follow-up visit with Nodar after changing one of his antidepressant medications and adding an anti-anxiety medication, or otherwise assert that the one-month follow-up appointment that Nodar was advised to do was appropriate under the circumstances … . Moreover, the defendants’ expert failed to establish, prima facie, that any departure from the standard of care did not proximately cause Nodar’s injuries … . Nodar v Pascaretti, 2021 NY Slip Op 06695, Second Dept 12-1-21

December 1, 2021/by Bruce Freeman

Civil Procedure, Medical Malpractice, Municipal Law, Negligence

ALTHOUGH THE COURT HAS THE DISCRETION TO ALLOW AMENDMENT OF A NOTICE OF CLAIM BASED UPON EVIDENCE GIVEN AT THE 50-H HEARING, THE AMENDMENT CANNOT SUBSTANTIALLY CHANGE THE FACTS AND ADD A NEW THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner’s motion to amend the notice of claim in this medical malpractice action against the New York City Health and Hospitals Corporation should not have been granted. Although the court has the power to allow amendment of a notice of claim based upon evidence given at the 50-h hearing, the amendment cannot substantively change the facts and add a new theory of liability:

After a hearing was conducted pursuant to General Municipal Law § 50-h … , the petitioner served an amended notice of claim … expanding the dates of alleged malpractice from January 2, 2014, through September 6, 2018, based on the petitioner’s testimony at the hearing that the decedent had stomach pains since 2016, had been diagnosed with paralytic ileus, and had been treated for that condition by a physician affiliated with Coney Island Hospital since approximately 2016. …

“‘A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability'” … . “[W]hile a court has the discretion to permit a plaintiff to serve an amended notice of claim, amendment is permitted only where the error in the original notice of claim was made in good faith, the municipality is not prejudiced, and the amendment does not substantively change the nature of the claim” … . “A court may consider evidence adduced at a 50-h hearing to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice of claim. However, the evidence adduced at the 50-h hearing cannot be used to substantively change the nature of the claim or the theory of liability” … . Matter of Lesaine v New York City Health & Hosps. Corp., 2021 NY Slip Op 06617, Second Dept 11-24-21

November 24, 2021/by Bruce Freeman

Evidence, Medical Malpractice, Negligence

EVEN IF PLAINTIFF’S EXPERT’S AFFIDAVIT ARGUABLY RAISED A QUESTION OF FACT ABOUT A POTENTIALLY ACTIONABLE DELAY IN TREATMENT, THE AFFIDAVIT PRESENTED ONLY CONCLUSORY AND SPECULATIVE ASSERTIONS THAT EARLIER DETECTION AND TREATMENT WOULD HAVE HAD A DIFFERENT OUTCOME (PROXIMATE CAUSE) (FOURTH DEPT).

The Fourth Department, over a strong dissent, determined the expert affidavit submitted by plaintiff was conclusory on the issue of proximate cause and therefore could not overcome defendants’ motion for summary judgment. Karen S. Simko (plaintiff) suffered from Guillain-Barré Syndrome (GBS) and alleged defendants failed to timely diagnose and treat the condition:

… [P]laintiffs’ theory of causation is predicated on the allegation that defendants’ failure or delay in diagnosing plaintiff’s GBS “diminished [her] chance of a better outcome” … . Nothing in our decision herein calls into question the viability of such a theory. The Court of Appeals, however, has instructed that when an expert “states his [or her] conclusion unencumbered by any trace of facts or data, [the] testimony should be given no probative force whatsoever” … , and, in this case, … the opinion of plaintiffs’ expert that treatment should have been started sooner was contrary to what the expert agreed was appropriate. We therefore conclude that plaintiffs’ expert offered only conclusory and speculative assertions that earlier detection and treatment would have produced a different outcome … .

From the dissent:

… [T]his appeal implicates the “loss of chance” theory of proximate causation that applies in delayed-diagnosis medical malpractice actions where the allegations are predicated on an “omission” theory of negligence … . In such cases, proximate cause is not analyzed under the ordinary “substantial factor” approach … , but rather according to whether the alleged delay in diagnosis diminished the plaintiff’s “chance of a better outcome or increased the injury” … . Although I have expressed concern “that a loss of chance concept reduces a plaintiff’s burden of proof on the element of proximate cause” … this Court has nonetheless adopted that causation standard in this type of medical malpractice action. Simko v Rochester Gen. Hosp., 2021 NY Slip Op 06470, Fourth Dept 11-19-21

November 19, 2021/by Bruce Freeman

Appeals, Civil Procedure, Medical Malpractice, Negligence

ALTHOUGH THE ISSUES ON APPEAL COULD HAVE BEEN RAISED IN AN APPEAL WHICH WAS DISMISSED FOR FAILURE TO PROSECUTE, THE COURT EXERCISED ITS JURISDICTION TO CONSIDER THE INSTANT APPEAL; THE MOTION FOR A JUDGMENT AS A MATTER OF LAW WAS BROUGHT BEFORE PLAINTIFF CLOSED HER CASE AND THEREFORE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing the defense judgment as a matter of law in this medical malpractice case, determined: (1) although the issues could have been raised in the appeal of the original judgment which was dismissed for failure to prosecute, the Second Department exercised its jurisdiction to consider the issues in this appeal from the denial of the motion to reargue; (2) the motion for a judgment as a matter of law was premature (made before plaintiff closed her case) and therefore should not have been granted:

… [A]s a general rule we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, we have the inherent jurisdiction to do so … . Here, the plaintiff appealed from the March 29, 2018 judgment entered in favor of the defendants, and that appeal was dismissed for lack of prosecution. Nevertheless, under the circumstances, including that the appeal from the judgment was still pending at the time the notice of appeal was filed from the subject order made upon reargument, we exercise our jurisdiction to review the issues properly raised on the appeal from the order … . …

“A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable” … . Here, the defendants’ motions for judgment as a matter of law dismissing the complaint were made before the close of the plaintiff’s case, and were not based upon admissions by the plaintiff. Fuchs v Long Beach Med. Ctr., 2021 NY Slip Op 06153, Second Dept 11-10-21

November 10, 2021/by Bruce Freeman

Evidence, Medical Malpractice, Negligence

PLAINTIFF’S DECEDENT, A PATIENT IN DEFENDANT REHAB FACILITY, FELL WHEN WALKING UNATTENDED BACK TO HIS BED FROM THE BATHROOM; PLAINTIFF ALLEGED THE FAILURE TO PROVIDE A BED ALARM WAS A PROXIMATE CAUSE; THAT CAUSE OF ACTION SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE; DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PROPERLY GRANTED BECAUSE PLAINTIFF DID NOT SUBMIT EXPERT EVIDENCE IN OPPOSITION (WHICH WOULD NOT HAVE BEEN REQUIRED IF THE CAUSE OF ACTION SOUNDED IN NEGLIGENCE, AS THE MOTION COURT HAD HELD) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the cause of action at issue sounded in medical malpractice, not negligence. Therefore, to avoid summary judgment, plaintiff was required to submit expert opinion evidence in opposition. Plaintiff’s decedent, a patient in a rehabilitation facility (defendant St. James), fell when walking unattended after going to the bathroom. Plaintiff alleged defendant’s failure to provide decedent with a bed alarm was a proximate cause of the fall. The motion court held that cause of action sounded in negligence and raised a jury question:

The essence of the allegation that St. James improperly failed to provide the decedent with a bed alarm which would have prevented his fall is that it improperly assessed his condition and the degree of supervision necessary to prevent him from falling, which sounds in medical malpractice … . Thus, with respect to this allegation, St. James bore the initial burden of establishing either that there was no departure from good and accepted medical practice or that any departure was not a proximate cause of the decedent’s injuries … .

In response to St. James’ prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact by submitting an expert opinion that specifically addressed the defense expert’s assertions … . Accordingly, the Supreme Court should have granted that branch of St. James’ motion which was for summary judgment dismissing so much of the complaint as alleged a failure to provide the decedent with a bed alarm. Losak v St. James Rehabilitation & Healthcare Ctr., 2021 NY Slip Op 05961, Second Dept 11-3-21

November 3, 2021/by Bruce Freeman

Evidence, Medical Malpractice, Negligence

EVIDENCE PLAINTIFF’S DECEDENT’S SISTER CARRIED A GENE WHICH INCREASED THE CHANCE OF DEVELOPING OVARIAN CANCER SHOULD NOT HAVE BEEN EXCLUDED FROM THIS MEDICAL MALPRACTICE TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice action, determined evidence that plaintiff’s decedent’s sister carried a gene which increased the chance of developing ovarian cancer should have been admitted:

“Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant’s departure was a substantial factor in causing the plaintiff’s injury” … . “‘A plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased [the] injury'” … .

The evidence that the decedent’s sister tested positive for the harmful variant of the BRCA2 gene was not unduly prejudicial and was relevant to the issue of proximate cause, as it would have supported the plaintiff’s argument and the testimony of the plaintiff’s expert that the decedent would have undergone gene testing if properly advised to do so, and more likely than not would have tested positive for the harmful gene variant and undergone a procedure to remove her ovaries, diminishing her chances of developing ovarian cancer. This evidence also would have contradicted the position of the Akhund defendants that the decedent’s chances of testing positive for the harmful gene variant were as low as 2.5 to 5% … . The weight to be accorded to this evidence is a matter to be determined by the jury … . Walsh v Akhund, 2021 NY Slip Op 05890, Second Dept 10-27-21

October 27, 2021/by Bruce Freeman

ALTHOUGH THE DOCTORS WHO TREATED PLAINTIFF IN THE EMERGENCY ROOM WERE NOT EMPLOYED BY THE HOSPITAL, THERE WAS A QUESTION OF FACT WHETHER THEY HAD APPARENT OR OSTENSIBLE AGENCY RENDERING THE HOSPITAL VICARIOUSLY LIABLE FOR ANY MALPRACTICE COMMITTED BY THEM (SECOND DEPT).

THE “LACK OF INFORMED CONSENT” CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE SUIT SHOULD NOT HAVE BEEN DISMISSED; THERE WAS NO EVIDENCE PLAINTIFF INSISTED ON THE PROCEDURE DESPITE THE RISKS OR DECLINED ANY PROFFERED EXPLANATION OF THE RISKS (SECOND DEPT).

PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT SPECIFICALLY ADDRESS DEFENDANT’S EXPERT’S OPINIONS, THEREBY WARRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (FIRST DEPT).

THE DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT SUFFICIENTLY ADDRESS THE ALLEGATIONS OF NEGLIGENCE IN THIS ACTION ALLEGING THE FAILURE TO CONDUCT A PROPER SUICIDE ASSESSMENT; THE FLAWS IN THE EXPERT’S AFFIDAVIT PROVIDE A USEFUL CHECKLIST FOR WHAT SHOULD HAVE BEEN ADDRESSED (SECOND DEPT).

ALTHOUGH THE COURT HAS THE DISCRETION TO ALLOW AMENDMENT OF A NOTICE OF CLAIM BASED UPON EVIDENCE GIVEN AT THE 50-H HEARING, THE AMENDMENT CANNOT SUBSTANTIALLY CHANGE THE FACTS AND ADD A NEW THEORY OF LIABILITY (SECOND DEPT).

EVEN IF PLAINTIFF’S EXPERT’S AFFIDAVIT ARGUABLY RAISED A QUESTION OF FACT ABOUT A POTENTIALLY ACTIONABLE DELAY IN TREATMENT, THE AFFIDAVIT PRESENTED ONLY CONCLUSORY AND SPECULATIVE ASSERTIONS THAT EARLIER DETECTION AND TREATMENT WOULD HAVE HAD A DIFFERENT OUTCOME (PROXIMATE CAUSE) (FOURTH DEPT).

EVIDENCE PLAINTIFF’S DECEDENT’S SISTER CARRIED A GENE WHICH INCREASED THE CHANCE OF DEVELOPING OVARIAN CANCER SHOULD NOT HAVE BEEN EXCLUDED FROM THIS MEDICAL MALPRACTICE TRIAL (SECOND DEPT).

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