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THE DEFENDANT OPHTHALMOLOGICAL SURGEON’S MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION WAS PROPERLY DENIED; CRITERIA EXPLAINED; PLAINTIFF LOST SIGHT IN HER RIGHT EYE AFTER CATARACT-REMOVAL SURGERY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, determined the defendant’s motion to set aside the plaintiff’s verdict in this medical malpractice action was properly denied. Plaintiff lost sight in her right eye after cataract-removal surgery. The opinion describes the surgeries and the theories presented by the experts in great detail:

In a medical malpractice action, the plaintiff is required to show that the defendant deviated from acceptable medical practice, and that the deviation is the proximate cause of her injuries. A defendant’s negligence is the proximate cause when it is a substantial factor in the events that produced the injury … .. * * *

The jury, which is in the best position to assess the credibility of the witnesses, is entitled to assess his credibility and decide what weight it will give to his testimony … .. Great deference is accorded to the factfinders, who had the opportunity to see and hear the witnesses … . * * *

The documentary evidence and the testimony of all the experts created factual and credibility issues that were properly determined by the jury … . If the resolution of the case turns on the evaluation of conflicting testimony of expert witnesses, the resolution of such a conflict rests with the jury and not the court … . The conclusions reached by the jury should not be overturned as against the weight of the evidence unless “there is simply no valid line of reasoning, and permissible inferences which could possibly lead rational people to the conclusion reached by the jury” … . Rozon v Schottenstein, 2022 NY Slip Op 01278, First Dept 3-1-22

 

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PLAINTIFF’S EXPERT RAISED A QUESTION OF FACT WHETHER A DELAY IN DIAGNOSIS AFFECTED THE PROGNOSIS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice action should not have been dismissed. Plaintiff’s expert raised a question of fact about whether a delay in diagnosis affected the prognosis:

On February 26, 2014, the plaintiff’s decedent presented to the emergency department of the defendant Brookdale Hospital Medical Center (hereinafter Brookdale) complaining of swelling in both legs. The attending emergency room physician, the defendant Morombaye Mbaidjol, diagnosed the decedent with “[l]ikely peripheral vascular disease” and discharged her to her home. The decedent’s bilateral leg swelling initially improved, but nine days later, she presented to a different hospital’s emergency department again complaining of bilateral leg swelling. An ultrasound revealed acute deep vein thrombosis (hereinafter DVT) of major veins in both lower extremities. Shortly after the ultrasound was performed, the decedent experienced cardiopulmonary arrest and died. An autopsy of the decedent revealed that she died as a result of bilateral DVT of the lower extremities, which led to a bilateral pulmonary embolism, causing cardiac arrest and death. * * *

“Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” … .. Contrary to the Brookdale defendants’ contention, the opinions of the plaintiff’s expert physician were not speculative and conclusory … . The plaintiff’s expert physician opined … that the Brookdale defendants departed from the standard of care by failing to take a proper history and perform a proper workup of the decedent, failing to rule out DVT, misdiagnosing the decedent, and failing to institute the proper treatment, which resulted in the progression of the DVT, bilateral pulmonary embolism, and ultimately cardiac arrest and death nine days later. Among other things, “[w]hether a diagnostic delay affected a patient’s prognosis is typically an issue that should be presented to a jury” … . Ivey v Mbaidjol, 2022 NY Slip Op 01152, Second Dept 2-23-22

 

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CERTAIN CHILD CUSTODY RECORDS AND CHILD PROTECTIVE SERVICES RECORDS (WHICH DO NOT RELATE TO AN INVESTIGATION) MAY BE DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION BROUGH ON BEHALF OF AN INFANT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined certain child custody records and Child Protective Services (CPS) records were or may be discoverable in this negligence and medical malpractice case brought on behalf of an infant. The custody records were relevant to plaintiff’s standing to sue and to family dynamics which may have affected the child’s health, and there may be some CPS records which are discoverable because they do not relate to an investigation, Therefore the matter was remitted for an in camera review:

Supreme Court did not address the second basis upon which defendants sought disclosure of the custody records, however, which was that they may contain information on family dynamics that impacted the infant’s development and would therefore be relevant as to plaintiff’s allegations, in her bill of particulars, that the infant’s learning disabilities and intellectual and emotional deficits arose out of defendants’ conduct. …

… [D]efendants are not entitled to disclosure of records relating to either a report of abuse or an investigation into one … . …

… [C]hild protective officials and related child welfare organizations may well possess discoverable documents that were not generated in the course of a child protective investigation but do contain information relevant to assessing whether the infant’s claimed injuries were linked to defendants’ actions or some other cause. C.T. v Brant, 2022 NY Slip Op 01090, Third Dept 2-17-22

 

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THE FAILURE TO TIMELY FILE THE CERTIFICATE OF MERIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT A GROUND FOR DIMSISSAL OF THE COMPLAINT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined, under the facts, plaintiff had not abandoned this medical malpractice action and plaintiff’s failure to timely file the certificate of merit was not a ground for dismissal of the complaint:

… [P]laintiff’s attorney filed an alternative certificate with the complaint that he was unable to timely procure the required consultation in view of the impending statute of limitations in accord with CPLR 3012-a (a) (2). In such an instance, the certificate of merit must be filed within 90 days of commencement, a deadline that plaintiff did not meet … . The mere failure to meet that deadline, however, does not require a dismissal of the action … . … [P]laintiff expressly identified his medical expert in the … discovery response. In his opposing affidavit, plaintiff’s counsel explained that the failure to file the certificate of merit was an oversight, i.e., basic law office failure, and further affirmed that he duly consulted with the physician in accord with the requirements of CPLR 3012-a (a) (1). In any event, plaintiff did not formally move for leave to file a late certificate of merit and, therefore, whether plaintiff established good cause under CPLR 2004 for such leave is not at issue … . … [W]e find no basis to dismiss the complaint based on the certificate of merit issue. Duvernoy v CNY Fertility, PLLC, 2022 NY Slip Op 01084, Third Dept 2-17-22

 

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IN THIS MEDIDCAL MALPRACTICE ACTION, THE HOSPITAL-DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT ADDRESS ALL OF THE MALPRACTICE ALLEGATIONS AND OFFERED CONSLUSORY ASSERTIONS; THEREFORE THE HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital’s (Lutheran’s) expert affidavit did not address all of plaintiff’s allegations of Dr. Barabe’s medical malpractice and therefore the hospital should not have been awarded summary judgment:

… [T]he Lutheran defendants’ submissions were insufficient to establish Barabe’s prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for medical malpractice insofar as asserted against him. The opinion of their expert with respect to the absence of a departure from the accepted standard of care failed, among other things, to address the plaintiffs’ allegation that Barabe departed from the accepted standard of care in failing to order necessary diagnostic tests … . In addition, the expert did not specify the accepted standard of medical care applicable to Barabe and failed to explain how Barabe did not depart from that standard … . Moreover, the expert proffered only the most conclusory assertions regarding the absence of a causal link between Barabe’s alleged departures and the injuries sustained by the decedent … . Ojeda v Barabe, 2022 NY Slip Op 00870, Second Dept 2-9-22

 

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE RENDERED THIS DENTAL MALPRACTICE ACTION TIMELY; PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT BASED ON THE PROMISED OUTCOME OF THE DENTAL WORK (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) there was a question of fact whether the continuous treatment doctrine applied making this dental malpractice action timely; and (2) plaintiff’s breach of contract action against defendant dentist (Irlin) should not have been dismissed:

… [T]he plaintiff submitted an affirmation of her current treating dentist, who opined that the plaintiff initially sought treatment from Irlin in order to obtain a permanent prosthetic replacement for the missing teeth in her upper jaw. The plaintiff’s dentist further opined that the numerous surgeries that the plaintiff underwent on her upper jaw to repair and replace implants and prostheses were related to Irlin’s initial alleged malpractice in failing to diagnose the bone condition that caused the implants and prostheses to become loose and need replacement. The record otherwise presents questions of fact as to whether the plaintiff timely initiated return visits to complain and seek corrective treatment from Irlin … . …

… [T]he individual defendants’ own submissions, which included the transcript of the plaintiff’s deposition testimony and numerous signed consent forms written in English, demonstrated that the plaintiff has a cause of action to recover damages for breach of contract against Irlin. The plaintiff testified at her deposition that she agreed to the installation of dental implants and a permanent prosthetic device in her upper jaw because Irlin verbally promised her that it would “last a lifetime,” that she would “treat [the prosthesis] as if” it was her “own teeth,” and that she would only need follow-up appointments for cleanings once every 6 to 12 months, among other things. The individual defendants’ evidence could support the conclusion that the treatment Irlin rendered did not achieve these allegedly promised results. Chvetsova v Family Smile Dental, 2022 NY Slip Op 00650, Second Dept 2-2-22

 

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IN THIS MEDICAL MALPRACTICE/PUBLIC HEALTH LAW ACTION AGAINST A NURSING HOME, DEFENDANTS’ EXPERTS’ OPINIONS WERE NOT SUPPORTED BY THE SUBMISSION OF DECEDENT’S MEDICAL RECORDS, RENDERING THE OPINIONS SPECULATIVE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant nursing home’s motion for summary judgment in this medical malpractice, Public Health Law action should not have been granted. The defendant’s experts’ opinions were not supported by the submission of decedent’s medical records:

… [D]efendant’s experts proffered opinions about decedent’s care at the nursing home facility that were not based on facts in the record because defendant failed to submit any of decedent’s medical records, certified or otherwise, to support those opinions. Additionally, those opinions were not based on facts personally known to the experts. Thus, the experts’ affidavits are ” ‘speculative or unsupported by any evidentiary foundation’ ” … . Ritts v Gowanda Rehabilitation & Nursing Ctr., 2022 NY Slip Op 00578, Fourth Dept 1-28-22

 

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SUPREME COURT SHOULD NOT HAVE STRUCK PLAINTIFF’S EXPERT’S TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION ON THE GROUND THE TESTIMONY EXCEEDED THE CPLR 3101 (D) DISCLOSURE; PLAINTIFF’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for a mistrial in this medical malpractice action should have been granted. The trial judge should not have precluded plaintiff’s expert’s testimony on the ground the scope of the testimony exceeded the CPLR 3101 (d) disclosure:

Because portions of the expert’s testimony purportedly fell outside the notice pursuant to CPLR 3101(d), the Supreme Court struck all of this expert’s testimony concerning [defendants] Inglis and Shukla. However, even assuming that portions of the expert’s testimony fell outside the CPLR 3101(d) disclosure, it was error to strike all of his testimony concerning Inglis and Shukla. … [T]o the extent that portions of the expert’s testimony fell outside the CPLR 3101(d) disclosure, the relevant subject matter was raised in the bills of particulars and in the expert’s affirmation submitted in opposition to the defendants’ motions for summary judgment. Under these circumstances, the court improvidently struck the expert’s testimony concerning the treatment provided by Inglis and Shukla … .

In addition, the Supreme Court sustained objections to questions of the same expert about whether Mosu departed from the accepted standard of care, for a lack of foundation. The court erred in precluding the expert from testifying as to whether Mosu departed from the accepted standard of care since there was a foundation for the expert’s testimony, including the defendants’ and plaintiff’s trial testimony, and the relevant medical records … . Johnson-Hendy v Mosu, 2022 NY Slip Op 00409, Second Dept 1-26-22

 

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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

 

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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

 

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