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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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CONFLICTING EXPERT OPINIONS IN THIS MEDICAL MALPRACTICE ACTION REQUIRED DENIAL OF DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT; THE FACT THAT THE ISSUE WHETHER ASPIRIN SHOULD HAVE BEEN ADMINISTERED AS TREATMENT FOR STROKE WAS RAISED IN A DEPOSITION (BUT NOT IN THE COMPLAINT OR BILL OF PARTICULARS) ALLOWED PLAINTIFF TO RAISE THE ISSUE IN OPPOSITION TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motions for summary judgment in this medical malpractice action should not have been granted. The was conflicting expert-opinion evidence about whether plaintiff should have been administered aspirin as treatment for a stroke. Although the aspirin-issue was first raised in opposition to defendants’ motions, the issue had been raised in a deposition and was therefore properly raised in the opposition papers:

… [T]he plaintiffs raised triable issues of fact as to whether Nandakumar departed from the accepted standard of care in his neurological evaluation and treatment of the injured plaintiff’s condition by failing to timely order and administer aspirin to the injured plaintiff, and whether such alleged departures proximately caused her alleged injuries … . Although the plaintiffs’ theory regarding the administration of aspirin was not specifically alleged in the complaint or bill of particulars, this theory was referred to by the plaintiffs’ counsel when deposing a … resident, and thus, was appropriately raised in opposition to [defendant’s] motion … . Walker v Jamaica Hosp. Med. Ctr., 2022 NY Slip Op 04996, Second Dept 8-17-22

Practice Point: Summary judgment is not appropriate in a medical malpractice action where there are conflicting expert opinions. Here, whether aspirin should have bean administrated to treat stroke was raised in a deposition, but not in the complaint or bill of particulars. Because it was raised in a deposition, it was properly raised in opposition to the defendants’ summary judgment motions.

 

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THE ACTION, WHICH STEMMED FROM PLAINTIFF’S BEING DROPPED IN THE DELIVERY ROOM IMMEDIATELY AFTER BIRTH, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s action, which stemmed from being dropped in the delivery room immediately after birth in 1999, sounded in medical malpractice, not negligence, and was therefore time-barred:

CPLR 208 provides that the statute of limitations is tolled throughout the period of infancy, but limits such toll to 10 years in medical malpractice actions … . In determining whether conduct should be deemed medical malpractice or ordinary negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached … . A negligent act or omission by a health care provider that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient constitutes medical malpractice … .

Here, the defendant established … the conduct at issue derived from the duty owed to plaintiff by the defendant as a result of the physician-patient relationship and was substantially related to the plaintiff’s medical treatment … . Rojas v Tandon, 2022 NY Slip Op 04989, Second Dept 8-17-22

Practice Point: The infancy toll of the statute of limitations in CPLR 208 is limited to ten years in medical malpractice cases. Here plaintiff alleged she was dropped in the delivery room immediately after birth in 1999. The action would have been timely if it sounded in negligence. But the action was deemed to sound in medical malpractice rendering it time-barred.

 

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IN THIS MEDICAL MALPRACTICE ACTION, THE PLAINTIFF WAS NOT REQUIRED TO IDENTIFY EACH ALLEGEDLY NEGLIGENT EMPLOYEE OF THE DEFENDANT MEDICAL CENTER TO SURVIVE SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff was not obligated to provide the name of every negligent employee of the defendant Erie County Medical Center Corporation (ECMC) to survive summary judgment in this medical malpractice action:

Contrary to the court’s determination, plaintiff was not required to provide the name of every allegedly negligent actor engaging in conduct within the scope of employment for ECMC … inasmuch as ECMC was on notice of the claims against it based on the allegations in the amended complaint, as amplified by plaintiff’s bill of particulars to ECMC, noting failures and omissions by ECMC’s employees. Indeed, ECMC is in the best position to identify its own employees and contractors and, as the creator of decedent’s medical records, ECMC had notice of who treated decedent and of any allegations of negligence by its nursing staff.  Braxton v Erie County Med. Ctr. Corp., 2022 NY Slip Op 04866, Fourth Dept 8-4-22

Practice Point: In this medical malpractice action, the plaintiff was not required to identify each allegedly negligent employee of the medical center to survive summary judgment.

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT WAS NOT CONCLUSORY AND SPECULATIVE; DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Falkovsky’s) motion for summary judgment in this medical malpractice case should not have been granted. Although the doctor made out a prima facie case demonstrating there was no departure form good and accepted medical malpractice, plaintiff’s expert raised questions of fact about whether defendant should have considered cardiac disease in his differential diagnosis:

[Plaintiff] presented to Falkovsky … with complaints of loss of taste and appetite for two weeks, the unintentional loss of ten pounds, and two episodes of dizziness and vomiting that resolved on their own. During a follow up visit on March 17, 2015, Falkovsky noted … that blood work had revealed that the decedent had anemia. Falkovsky believed the cause of the decedent’s symptoms was most likely a neoplasm, and referred the decedent to a gastroenterologist and a nephrologist. On March 19, 2015, the decedent was examined by a nephrologist, who noted … that the decedent had lower extremity edema. The decedent underwent an endoscopy with his gastroenterologist on March 25, 2015, which revealed … reflux and gastritis. A renal sonogram performed on April 11, 2015, showed that the decedent had a right renal cyst and a possible angeomyolipoma. The decedent died on April 16, 2015. An autopsy revealed that the decedent died as a result of atherosclerotic and hypertensive cardiovascular disease. * * *

… [T]he opinions of the plaintiff’s expert were not speculative and conclusory … . The plaintiff’s expert opined, inter alia, that Falkovsky departed from the standard of care by failing to include cardiac disease in his differential diagnosis based upon the decedent’s symptoms in light of his medical history, and failing to order proper tests or to refer the decedent to a cardiologist for cardiac-related tests, which resulted in a lack of proper treatment that could have prevented the decedent’s death. Shirley v Falkovsky, 2022 NY Slip Op 04659, Second Dept 7-20-22

Practice Point: A conclusory or speculative expert affidavit will not raise a question of fact in a medical malpractice case. Here plaintiff’s expert opined that defendant doctor should have considered cardiac disease in his differential diagnosis, based on plaintiff’s symptoms, which included swelling of the lower extremities. Plaintiff died from his cardiac disease. Supreme Court should not have found plaintiff’s expert’s affidavit to have been speculative and conclusory and therefore should not have granted the doctor’s motion for summary judgment.

 

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WHERE THE EMPLOYER OF A PHYSICIAN HAS PAID THE PREMIUMS FOR MEDICAL MALPRACTICE INSURANCE AND THE INSURANCE COMPANY DEMUTUALIZES, ABSENT AN AGREEMENT TO THE CONTRARY, THE PROCEEDS GO TO THE PHYSICIAN, NOT THE EMPLOYER (FIRST DEPT). ​

The First Department, reversing Supreme Court based on a recent Court of Appeals ruling, determined the proceeds from the demutualization of a medical malpractice insurer belong to the physician, not to the physician’s employer (the plaintiff here):

The Court of Appeals has recently held that “when an employer pays premiums to a mutual insurance company to obtain a policy of which its employee is the policyholder, and the insurance company demutualizes, absent contrary terms in the contract of employment, insurance policy, or separate agreement, the policyholder is entitled to the proceeds from the demutualization” … .

… [D]efendant is entitled to the demutualization proceeds. There is no evidence of any contrary terms in the contract of employment, insurance policy, or separate agreement. In fact, defendant’s employment agreement provides that “[t]he Employer agrees that it will pay or reimburse the Employee for that portion of such insurance premiums that are attributable to the period coinciding with the Term [of employment].” Plaintiff … acknowledged … that it paid the insurance premiums “as a fringe benefit to the Physician employee.” … .

It is irrelevant that plaintiff, who is not listed as the policy administrator in the policy, paid the policy premiums during the relevant period and acted as the policy administrator … . Mid-Manhattan Physician Servs., P.C. v Dworkin, 2022 NY Slip Op 04523, First Dept 7-12-22

​Similar issues and result in Sullivan v Northwell Health, Inc., 2022 NY Slip Op 04525, First Dept 7-12-22

​Practice Point: Where the employer of a physician has paid the premiums for medical malpractice insurance and the insurance company demutualizes, absent an agreement to the contrary, the proceeds go to the physician, not the employer.

 

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CONFLICTING EXPERT OPINIONS PRECLUDED DISMISSAL OF MEDICAL MALPRACTICE CAUSES OF ACTION STEMMING THE ALLEGED PREMATURE DISCHARGE OF PLAINTIFF FROM EMERGENCY CARE AFTER SHE EXPERIENCED SYMPTOMS OF A STROKE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s medical malpractice causes of action against the doctor who discharged her from emergency care and the hospital should not have been dismissed because the expert affidavits presented conflicting opinions. Plaintiff experienced symptoms consistent with a stroke and went to the hospital. An MRI was done but plaintiff was released before a final review of the MRI. Evidence of a stroke was ultimately found on the MRI. Plaintiff’s expert opined that the event which caused plaintiff to go to the hospital was a transient ischemic attack (TIA), not a stroke, and that the stroke occurred at the hospital about when the MRI was performed:

… [B]y submitting the affidavit of their expert, [plaintiffs] raised an issue of fact on the issue whether Dr. Kandel deviated from the standard of care … . Dr. Kandel permitted plaintiff to leave the hospital before her brain MRI had undergone a final review by a neuroradiologist. Plaintiffs’ expert opined that discharging plaintiff before a final review of the scans was complete constituted a deviation from the standard of care in light of plaintiff’s medical history, which indicated a significant stroke risk.

… [P]laintiffs raised a question of fact with respect to causation … . The hospital defendants relied upon the affirmation of Dr. Kandel’s medical expert, who opined that any alleged negligence is not the proximate cause of plaintiff’s injuries inasmuch as plaintiff suffered a stroke at or before 3 a.m. on October 27, and that the window in which to administer tPA, an anti-clot medication, had closed long before plaintiff arrived at the hospital for treatment approximately 13 hours later. … [P]laintiffs submitted an expert affidavit asserting … that the symptoms plaintiff experienced on the morning of October 27 were the result of a transient ischemic attack (TIA), which results in temporary stroke-like symptoms but does not result in a blockage, and that she did not experience the actual blockage until sometime later in the day, around the time of her brain MRI. Plaintiffs’ expert further opined that, had plaintiff stayed at the hospital overnight and had the MRI been read correctly, tPA could have been administered when plaintiff’s new symptoms presented. Clark v Rachfal, 2022 NY Slip Op 04472, Fourth Dept 7-8-22

Practice Point: Conflicting expert opinions preclude summary judgment in medical malpractice actions.

 

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THE PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN SET ASIDE IN THE INTEREST OF JUSTICE; THE JUDGE PRECLUDED CROSS-EXAMINATION OF PLAINTIFF’S EXPERT ABOUT WHETHER THE OTHER DOCTORS WHO CONSULTED ON PLAINTIFF’S TREATMENT DEPARTED FROM ACCEPTED PRACTICE BY FAILING TO DO FURTHER DIAGNOSTIC TESTING; IF SO, FAULT WOULD BE SHARED PURSUANT TO CPLR 1601 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Sourour’s) motion to set aside the verdict in the interest of justice in this medical malpractice action should have been granted. The evidence supported the jury’s finding that the failure to do diagnostic testing decreased the plaintiff’s chance of a better outcome. During the trial Sourour sought to but was precluded from cross-examining plaintiff’s expert about whether other doctors who consulted on the case also departed from accepted practice by not performing the additional diagnostic testing. That was deemed reversible error:

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . “In considering such a motion, [t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected . . . and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision” … . …

If, as Sourour proposes, a jury were to find that these doctors departed from accepted medical practice and that their departures were a substantial factor in depriving the decedent of a chance for an improved outcome, they could be found at fault together with Sourour … . As a result, any evidence as to the culpability of these doctors was relevant under CPLR 1601(1) … . The court’s error in precluding testimony on this issue deprived Sourour of “substantial justice” … . Schuster v Sourour, 2022 NY Slip Op 04317, Second Dept 7-6-22

Practice Point: Here the defendant doctor’s failure to do further diagnostic testing for cancer was deemed to have decreased the chance of a better outcome. Therefore the plaintiff’s verdict was supported by the evidence and properly survived a motion set aside as a matter of law. However, the judge erroneously precluded cross-examination of plaintiff’s expert about whether the other doctors who consulted on plaintiff’s treatment departed from accepted practice failing to order further diagnostic testing. If so, fault would have been shared pursuant to CPLR 1601.

 

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MOTHER’S CAUSES OF ACTION FOR EMOTIONAL DISTRESS WOULD NOT BE AVAILABLE IF HER BABY WAS BORN ALIVE; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE BABY WAS BORN ALIVE OR STILLBORN; THEREFORE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (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 because there was a question of fact whether the baby was born alive or was stillborn:

The plaintiffs commenced this action to recover damages … for emotional distress allegedly sustained by the plaintiff Kristina Khanra as a result of the defendants’ medical malpractice, which caused her to deliver a stillborn baby. The hospital records indicated that, upon removal from the womb by caesarean section, it was observed that the infant was “floppy,” had “no spontaneous respirations,” and had “no heart rate.” The defendants … moved for summary judgment dismissing the first three causes of action insofar as asserted against them, which were premised, among other things, upon Kristina Khanra’s emotional distress, on the ground that the plaintiffs could not recover for any alleged emotional distress because the infant was born alive. …

The defendants established their prima facie entitlement to judgment as a matter of law … , by tendering evidence that the infant born to Kristina Khanra by emergency cesarean section was born alive, as a heartbeat was generated 20 minutes after the infant was removed from the womb, as a result of continuous resuscitative efforts … . However, in opposition, the plaintiffs raised a triable issue of fact as to whether the infant was in fact stillborn, as the infant had no respiratory response, the infant’s Apgar score was zero at 1 minute, 5 minutes, 10 minutes, and 15 minutes after the infant was removed from the womb, the infant otherwise had no indicia of life, and the infant was declared deceased approximately two hours after being removed from a ventilator … . Khanra v Mogilyansky, 2022 NY Slip Op 04160, Second Dept 6-29-22

Practice Point: Whether mother can recover for emotional distress in this medical malpractice action depended upon whether her baby was born alive or stillborn. There can be no recovery for mother’s emotional distress if the baby was born alive. Because there were questions of fact about whether the baby was born alive, the defendants’ motion for summary judgment should not have been granted.

 

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IN NEW YORK THERE ARE NO CAUSES OF ACTION FOR “PRECONCEPTION NEGLIGENCE” OR “WRONGFUL LIFE;” HERE MOTHER ALLEGED THE DRUG SHE HAD BEEN TAKING FOR EPILEPSY BEFORE SHE LEARNED SHE WAS PREGNANT CAUSED THE BABY TO BE BORN WITH SPINA BIFIDA (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiffs’ actions for “preconception negligence” and “wrongful life” should have been dismissed. Plaintiff mother had been treated for epilepsy for years with a drug (VPA). She became pregnant while taking the drug and stopped taking it as soon as she learned she was pregnant. The baby was born with spina bifida:

Defendants treated the infant plaintiff’s mother for epilepsy. To control her seizures, they prescribed valproic acid (VPA), which the mother had been taking for years while under the care of other physicians. Unbeknownst to all, while she was on VPA, the mother conceived the infant plaintiff. Although the VPA was discontinued when the mother learned that she was pregnant, the infant was born with spina bifida, for which she seeks to hold defendants responsible.

It is well established that an infant has no cause of action for preconception negligence … . The infant’s claims that defendants failed to ensure that her mother was on birth control and monitored regularly for pregnancy while on VPA sound in “wrongful life,” for which there is also no cause of action … . Z.L. v Mount Sinai Hosp., 2022 NY Slip Op 04112, First Dept 6-23-22

Practice Point: New York does not recognize actions for “preconception negligence” or “wrongful life.” Here mother alleged the epilepsy drug she was taking until she learned she was pregnant caused her baby to be born with spina bifida. Both causes of action should have been dismissed.

 

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