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THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AND THE MOTION FOR LEAVE TO RENEW SHOULD HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION AGAINST THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (NYCHHC); CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for leave to file a late notice of claim against the New York City Health and Hospitals Corporation (NYCHHC) for medical malpractice, as well as the motion for leave to renew based upon recently disclosed medical records, should have been granted:​

… [P]etitioner established a reasonable excuse for the delay, to wit, the serious medical condition of the infant, which required hospitalization of the infant after his birth, feeding through a feeding tube, and numerous medical appointments while the condition of the infant was being assessed … . Considering the overall circumstances, including the petitioner’s natural predisposition to be more concerned with the infant’s medical condition and the treatment those injuries required, rather than with commencing legal action during the prescribed time period, the delay in serving a late notice of claim should have been excused … . Further, in support of that branch of the petitioner’s motion which was for leave to renew the petition, the petitioner submitted her medical records and an expert’s affidavit, which established that NYCHHC had actual knowledge of the essential facts constituting the claim since the alleged malpractice was apparent from an independent review of the medical records … . The medical records were not submitted earlier because, although the petitioner sought her medical records in August 2022, she only received those records on December 22, 2022 … . Further, the medical records were voluminous.

Since the conduct at issue was fully documented in the medical records, the petitioner made an initial showing that NYCHHC was not prejudiced by the delay in serving the notice of claim … , and, in response, the NYCHHC made no showing of prejudice. ​​​​​Matter of Bergado v New York City Health & Hosps. Corp., 2024 NY Slip Op 06039, Second Dept 12-4-24

Practice Point: Here the mother of the injured infant proffered an adequate excuse for failing to timely file a notice of claim in this medical malpractice action against the NYC Health and Hospitals Corporation (NYCHHC) and demonstrated the NYCHHC had timely notice of the nature of the action and suffered no prejudice from the delay through the medical records.

Practice Point: The motion for leave to renew was properly based upon mother’s recent receipt of medicals records not previously provided.

 

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DEFENDANT DOCTOR’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE BILL OF PARTICULARS, RENDERING IT CONCLUSORY AND SPECULATIVE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant doctor’s (Buono’s) motion for summary judgment in this medical malpractice action should not have been granted: Buono’s expert’s affidavit did not address all the allegations in the bill of particulars, rendering it conclusory and speculative:

“To prevail on a motion for summary judgment in a medical malpractice action, a defendant must establish, prima facie, either that there was no departure from good and accepted medical practice or that any departure was not a proximate cause of the plaintiff’s injuries” … . “In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s bill of particulars” … . Here, Buono failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice insofar as asserted against him. The plaintiff specifically alleged in his bill of particulars, inter alia, that Buono was negligent in abandoning the plaintiff in the operating room before the procedure was completed. In support of his motion, Buono submitted an affirmation of an expert who opined that Buono did not depart from good and accepted medical practice because, “as an assistant, DR. BUONO was entitled to leave the operating room as soon as his services were no longer required.” That opinion, however, failed to address certain evidence, including medical records and deposition testimony of Brady and Buono, that raised a triable issue of fact as to whether Buono was the assistant or the surgeon performing the procedure. As such, the expert’s opinion is conclusory, speculative, and wholly insufficient to establish Buono’s prima facie entitlement to judgment as a matter of law … . The expert also failed to establish that Buono’s alleged negligence was not a proximate cause of the plaintiff’s injuries. Woehrle v Buono, 2024 NY Slip Op 05815, Second Dept 11-20-24

Practice Point: In a medical malpractice action an expert affidavit in support of a defendant’s motion for summary judgment must address all the allegations in the pleadings or it will be deemed conclusory and speculative.

Similar issue and result in Bonocore v Ravindranath, 2024 NY Slip Op 05824, First Dept 11-21-24.

 

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THE FAILURE TO GRANT PLAINTIFF’S REQUEST THAT THE JURY BE GIVEN AN INTERROGATORY ON THE THEORY THE SURGEON IMPROPERLY PERFORMED A PROCEDURE WAS REVERSIBLE ERROR ( SECOND DEPT).

The Second Department, ordering a new trial on one of the theories of negligence, determined plaintiff’s request that the jury be given an interrogatory should have been granted:

… [T]he Supreme Court erred in denying the plaintiff’s request that the jury be given an interrogatory asking whether [defendant] Lazzaro departed from good and accepted standards of medical practice by “the improper performance of a surgical procedure,” and therefore a new trial is required on this theory of negligence. “‘Jury interrogatories must be based on claims supported by the evidence'” … . “‘The trial court has broad discretion in deciding whether to submit interrogatories to the jury'” … . “However, where there is sufficient evidence to support a plaintiff’s cause of action pursuant to a particular theory of negligence, it is error to deny a request by the plaintiff to submit an interrogatory to the jury regarding that theory” … .

Here, the plaintiff introduced sufficient evidence at trial to support her theory that Lazzaro departed from good and accepted standards of medical practice by the manner in which he performed the surgery … . Lawrence v New York Methodist Hosp., 2024 NY Slip Op 05571, Second Dept 11-13-24

Practice Point: In this medical malpractice case, there was sufficient proof a defendant improperly performed a surgical procedure to warrant granting plaintiff’s request to give the jury an interrogatory on the issue. The denial of the request was deemed reversible error.

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STROKE DIAGNOSIS WAS TIMELY AND WHETHER THE FAILURE TO MAKE A TIMELY DIAGNOSIS DECREASED THE CHANCES OF A BETTER OUTCOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised a question of fact in this medical malpractice action alleging the failure to timely diagnose a stroke:

Where a plaintiff in a medical malpractice action alleges a failure to timely diagnose a condition, the plaintiff must show that the departures from the standard of care delayed diagnosis and decreased the chances of a better outcome or increased the injury … . The plaintiff submitted an affirmation of an emergency medicine physician who opined, inter alia, that the hospital’s staff failed to take a thorough history of the decedent’s symptoms and failed to provide an interpreter for that purpose in contravention of the applicable standard of care. The plaintiff also submitted an affirmation of a radiologist, who opined that a CT scan of the decedent’s brain performed on the day that the decedent presented to the hospital showed an infarct and that the hospital’s radiologist had failed to recognize this evidence of a stroke. The plaintiff’s emergency medicine expert opined that had the decedent been properly and timely diagnosed, treatment options were available, including the possible administration of tPA or the use of certain other medications.

Under these circumstances, the plaintiff raised triable issues of fact as to whether there was a departure from the standard of care and whether such departure decreased the chances of a better outcome or increased the decedent’s injuries … . Hanna v Staten Is. Univ. Hosp., 2024 NY Slip Op 05435, Second Dept 11-6-24

Practice Point: Here plaintiff’s expert raised a question of fact about whether the stroke diagnosis was timely and whether the delay decreased the chances of a better outcome.

 

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IN A MEDICAL MALPRACTICE ACTION, A SPECULATIVE AND CONCLUSORY EXPERT AFFIDAVIT WILL NOT SUPPORT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Andre) was not entitled to summary judgment dismissing the medical malpractice action because defendant’s expert’s affidavit was “speculative and conclusory:”

The affidavit and supplemental affidavit of Andes’s expert physician, Reed E. Phillips, were insufficient to establish the absence of any departure from good and accepted medical practice … . Phillips’s opinion that Andes did not depart from the standard of care by failing, inter alia, to obtain the decedent’s prior medical records, to order a CT scan, MRI, or other imaging, and to timely diagnose the decedent with liver cancer, as well as his opinion that the decedent’s cancer was incurable by the time the decedent first treated with Andes, was speculative and conclusory and otherwise insufficient to demonstrate that Andes comported with good and accepted standards of practice in his care and treatment of the decedent or that any alleged departure was not a proximate cause of the decedent’s injuries and ultimate death … . Miller-Albert v EmblemHealth, 2024 NY Slip Op 05340, Second Dept 10-30-24

Practice Point: In medical malpractice cases, at the summary judgment stage, the action survives or fails based upon the quality of the expert affidavits. Conclusory or speculative assertions in expert affidavits have no probative value.

 

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THE NEARLY THREE-YEAR GAP BETWEEN PLAINTIFF’S KNEE SURGERY AND HIS SEEING THE SURGEON TO COMPLAIN OF KNEE PAIN DID NOT PRECLUDE THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE TO TOLL THE STATUTE OF LIMITATIONS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact about whether the continuous treatment doctrine applies to render the action timely. Plaintiff had knee surgery and did not see the surgeon again for nearly three years when he experienced pain. He had not seen any other orthopedic surgeons in the interim:

Defendants fail to establish that plaintiff’s claims involving treatment of her right knee before May 21, 2016 are time-barred. Given the evidence of “an ongoing relationship of trust and confidence between the patient and physician,” the record presents disputed issues of fact regarding whether the continuous treatment doctrine applies, thus precluding dismissal at this stage of the litigation … . The 34-month gap between the one-year postoperative follow-up visit after plaintiff’s right total knee replacement and her next complaint to defendant Dr. Steven B. Haas, M.D. about pain in his right knee does not prevent application of the doctrine as a matter of law, as plaintiff visited no orthopedic surgeon other than defendant Dr. Haas during that period, and she returned to Dr. Haas to address increased pain in her right knee, which even he determined would require revision surgery. Karanevich-Dono v Haas, 2024 NY Slip Op 05137, First Dept 10-17-24

Practice Point: Plaintiff had knee surgery and did not see the surgeon again for nearly three years to complain of knee pain. Plaintiff did not see any other orthopedic surgeon in the interim. There was a question of fact whether the continuous treatment doctrine applied to render the medial malpractice action timely.

 

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PLAINTIFF’S MOTION FOR LEAVE TO SERVE A SUPPLEMENTAL BILL OF PARTICULARS SHOULD HAVE BEEN GRANTED BECAUSE IT MERELY AMPLIFIED THE ALLEGATIONS IN THE COMPLAINT AND BILL OF PARTICULARS; HOWEVER, THE NEW CAUSES OF ACTION IN THE AMENDED BILLS OF PARTICULARS WERE PROPERLY STRUCK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this medical malpractice action should have been allowed to serve a supplemental bill of particulars which amplified the allegations in the complaint and noted that plaintiff’s mislabeling an amended bill of particulars as a supplemental bill of particulars could be overlooked:

A party is entitled to amend their bill of particulars “once as of right at any time prior to filing the note of issue” … . A bill of particulars “may be used to amplify the allegations in a complaint [but] may not be used to supply allegations essential to a cause of action that was not pleaded in the complaint” … . Nor can a bill of particulars “add or substitute a new theory or cause of action” not asserted in the complaint … .

Although the second amended bill was denominated as a “Supplemental Bill of Particulars,” we may disregard the plaintiff’s mistake in labeling her bill of particulars where, as here, a substantial right of a party will not be prejudiced (see CPLR 2001 …).

The Supreme Court properly granted that branch of [defendant’s] motion … to strike the first amended bill, as the plaintiff alleged a new cause of action alleging malpractice and negligence in performing the knee replacement surgery, which was not previously set forth in the complaint or original bill of particulars … . Further, the court properly granted that branch of [defendant’s] motion … to strike that portion of the second amended bill that alleged malpractice and negligence in the plaintiff’s preoperative care, as well as malpractice and negligence in performing the knee replacement surgery, as these causes of action were not previously set forth in the complaint or original bill of particulars … . However, the court should have granted the plaintiff leave to serve a supplemental bill of particulars with respect to the allegations included in the second amended bill related to postoperative physical therapy and care, as they only served to amplify the allegations in the complaint … , and should have denied that branch of [defendant’s] motion which was to preclude the plaintiff from offering evidence at trial relating to her postoperative physical therapy and care. Quinones v Long Is. Jewish Med. Ctr., 2024 NY Slip Op 04471, Second Dept 9-18-24

Practice Point: Here a motion for leave to serve a supplemental bill of particulars which only amplified the allegations in the complaint and bill of particulars should have been granted. But new causes of action included in the amended bills of particulars were properly struck.

 

 

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THE MALPRACTICE ACTION WAS AGAINST EMERGENCY-ROOM PHYSICIANS WHO TREATED PLAINTIFF’S DECEDENT’S GUNSHOT WOUNDS; PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE ANY FAMILIARITY WITH EMERGENCY MEDICINE AND THEREFORE DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ summary judgment in this medical malpractice action should have been granted because the expert affidavit offered in opposition was deemed “conclusory” and insufficient to raise a question of fact. Plaintiff’s decedent died from three gunshot wounds. Plaintiff’s expert did not demonstrate any familiarity with the practice of emergency medicine:

“While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” … . “‘Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered'” … .

Here, the plaintiff submitted an affirmation of a physician who engaged in the private practice of internal medicine and cardiology. However, the affirmation did not indicate that the physician had training in emergency medicine or what, if anything, the physician did to become familiar with the standard of care for this specialty … . Furthermore, the affirmation was conclusory, speculative, and unsupported by the evidence … . Thus, the plaintiff failed to raise a triable issue of fact. Quinones v Winthrop Univ. Hosp., 2024 NY Slip Op 04406, Second Dept 9-11-24

Practice Point: Here plaintiff’s expert did not demonstrate any familiarity with emergency medicine. Plaintiff’s decedent died from gunshot wounds. Plaintiff’s expert’s affidavit was deemed “conclusory” and insufficient to raise a question of fact.

 

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HERE PLAINTIFF DID NOT IDENTIFY AN EXPERT WITNESS AS REQUIRED BY CPLR 3101 AND THE MEDICAL MALPRACTICE ACTION WAS PROPERLY DISMISSED; HOWEVER PLAINTIFF ALLEGED SCARRING AND BURNING DURING LASER HAIR REMOVAL AND MAY STILL BE ABLE TO PROVE ORDINARY NEGLIGENCE THROUGH THE TESTIMONY OF HIS TREATING PHYSICIAN AND OTHER EVIDENCE; THE NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although plaintiff was precluded from offering expert evidence and therefore could not prove medical malpractice, the negligence cause of action should not have been dismissed. Plaintiff alleged scarring and burns caused by laser hair removal:

The Supreme Court erred in dismissing the negligence cause of action on the ground that the plaintiff could not establish a prima facie case in the absence of the testimony of an expert witness. At trial, the plaintiff may, through the testimony of his treating physician, records, or “other evidence,” be able to establish “the standard of care in performing laser hair removal and the known risks of the procedure” … . Therefore, contrary to the court’s determination, although the plaintiff is precluded from offering the testimony of an expert witness whose identity must be disclosed pursuant to CPLR 3101(d)(1)(i), at this juncture, it cannot be determined that the plaintiff will be unable to establish a prima facie case of negligence … . Mishli v Advanced Dermatology Laser & Cosmetic Surgery, P.C., 2024 NY Slip Op 04386, Second Dept 9-11-24

Practice Point: In this case alleging scarring and burning during laser hair removal, the dismissal of a medical malpractice cause of action because the identity of an expert witness has not been disclosed did not necessarily preclude a negligence cause of action proven by the testimony of plaintiff’s treating physician.

 

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THE RELATION-BACK DOCTRINE APPLIES EVEN WHERE A NEW ACTION HAS BEEN COMMENCED AND CONSOLIDATED WITH A PRIOR ACTION (FIRST DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Rosado, determined the relation-back doctrine applied to the wrongful death action against Dr. Ozcan and reinstated that cause of action. The court noted that the relation-back doctrine applies where, as here, a new action has been commenced and consolidated with a prior action:

Dr. Ozcan does not substantively dispute that the claims in the prior and instant actions arose out of the same conduct or that she is united in interest with Montefiore [Medical Center]. Therefore, the only question to be decided, is whether the third prong of the relation-back doctrine has been established.

Dr. Ozcan, who was named as a defendant in the First Action, should have known that, but for a mistake, the wrongful death claim would have been brought against her as well … .

Application of the relation-back doctrine is proper even where, as here, a new action has been commenced and consolidated with a prior action … . Picchioni v Sabur, 2024 NY Slip Op 04362, First Dept 9–5-24

Practice Point: The relation-back doctrine applies to render an action timely brought even where a new action has been commenced and consolidated with a prior action.

 

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