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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

 

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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​

 

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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

 

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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

 

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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

 

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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

 

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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

 

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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

 

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ALTHOUGH DEFENDANT DOCTOR PRACTICED IN THE BRONX FOR PART OF EACH WEEK, THE PRINCIPAL OFFICE OF HIS BUSINESS AND HIS RESIDENCE WERE IN WESTCHESTER COUNTY, WHERE PLAINTIFF WAS TREATED; SUPREME COURT PROPERLY GRANTED DEFENDANTS’ MOTION TO CHANGE THE VENUE FROM BRONX TO WESTCHESTER COUNTY (CT APP).

The Court of Appeals, reversing the Appellate Division, over an extensive two-judge dissent, determined Supreme Court had properly granted defendants’ motion for a change of venue from Bronx County to Westchester County in this medical malpractice action. The defendant doctor (Goldstein) was described by plaintiff as an “individually-owned business” with a “principal office” in Bronx County. Dr. Goldstein treats some patients in Bronx County. But plaintiff was treated by Dr. Goldstein in Westchester County, where defendant business (Westmed) is located and where Dr. Goldstein resides:

Under CPLR 503(d), “[a] partnership or an individually-owned business shall be deemed a resident of any county in which it has its principal office, as well as the county in which the partner or individual owner suing or being sued actually resides.” * * *

While … registration documents confirmed … that Dr. Goldstein also worked in the Bronx, the venue statute does not deem an individually-owned business a resident of every county where it has an office or transacts business. To conclude otherwise would read the phrase “principal office” out of the statute. Lividini v Goldstein, 2021 NY Slip Op 05618, CtApp 10-14-21

 

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PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the claim for punitive damages in this medical malpractice action should have been dismissed because there was no evidence defendant doctor acted with malice or evil intent. Apparently, plaintiff alleged defendant’s fallure to adequately treat a skin condition warranted punitive damages:

Defendant explained that he initiated conservative treatment because, given plaintiff’s other conditions, it was appropriate to address plaintiff’s abdominal skin condition by attempting to alleviate her inflammatory process before considering surgical intervention. Defendant’s submissions established that, contrary to plaintiffs’ allegations, he had indeed treated plaintiff’s abdominal skin condition, albeit conservatively as he deemed appropriate under the circumstances, and that he had not abandoned plaintiff’s treatment in that regard … . We conclude that, even viewing the evidence in the light most favorable to plaintiffs, defendant established that his conduct “did not manifest spite or malice, or a fraudulent or evil motive . . . , or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton” … . Gaines v Brydges, 2021 NY Slip Op 05193, Fourth Dept 10-1-21

 

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