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PLAINTIFF’S KNEE BECAME STIFF AND IMPOSSIBLE TO BEND AFTER SURGERY; PLAINTIFF SUED THE DEFENDANT DOCTOR WHO TREATED HER AT THE POST-SURGERY REHABILITATION CENTER; THE DEFENDANT DOCTOR, WHO DID NOT PERFORM THE SURGERY, HAD CERTIFIED AND RECOMMENDED PHYSICAL AND OCCUPATIONAL THERAPY FOR PLAINTIFF AT THE REHABILITATION CENTER; BECAUSE THE DEFENDANT DOCTOR PLAYED NO ROLE IN THE THERAPY ITSELF, HIS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant doctor’s (Raber’s) motion for summary judgment should have been granted. Dr. Raber treated plaintiff at a nursing and rehabilitation center, Glen Cove, where, after knee surgery, plaintiff voluntarily transferred. After about a month at Glen Cove, plaintiff was seen by her orthopedic surgeon who found plaintiff’s knee had become stiff and impossible to bend. Dr. Raber had certified and recommended physical and occupational therapy at Glen Cove, for which Dr. Raber was not responsible. Dr. Raber moved for summary judgment on the ground that any regimen of physical therapy was the responsibility of Glen Cove:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … .

Here, Raber testified at his deposition that he is trained only in internal medicine, and was the plaintiff’s internist while she was at Glen Cove. Raber established that he was not the plaintiff’s physical or occupational therapist and was not involved in the plaintiff’s physical therapy plan of care. Physical therapists (see Education Law §§ 6731, 6732) must be educated and licensed in that specific field (see Education Law § 6734), and Raber had no such training. Occupational therapists must similarly be educated and licensed in their field (see Education Law § 7904). Raber’s medical expert opined that Raber’s training as an internal medicine specialist did not encompass the skills and knowledge required to assess a patient’s physical therapy needs, create a physical therapy plan of care, or supervise a physical therapy plan of care. …

Raber established that he did not depart from good and accepted medical practice by deferring to the physical and occupational therapy specialists at Glen Cove for the assessment and treatment of the plaintiff’s right knee, and had no duty to evaluate the efficacy of that treatment, since he was not involved in that aspect of the plaintiff’s care … . Aaron v Raber, 2020 NY Slip Op 06738, Second Dept 11-18-20

 

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PLAINTIFF’S EXPERTS’ AFFIDAVITS WERE CONCLUSORY AND SPECULATIVE WITH RESPECT TO ONE DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION; AND ANOTHER DEFENDANT’S EXPERTS WERE QUALIFIED TO OFFER OPINIONS IN AREAS OUTSIDE THEIR PARTICULAR FIELDS OF SPECIALIZATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this medical malpractice action, determined plaintiff’s experts’ affidavits were conclusory and speculative with respect to defendant Neurological Associates and defendant Radiology Associates’ experts were qualified to offer their opinions. The complaint alleged plaintiff’s decedent’s brain tumor was not timely detected and treated:

… [P]laintiff’s experts “failed to provide any factual basis for [their] conclusion[s]” that Neurological Associates deviated from the standard of care in surgically resecting the tumor, documenting the resection, and advising decedent as to post-operative radiation and, therefore, the experts’ affidavits “lacked probative force and [were] insufficient as a matter of law to overcome” the motion with respect to those claims … . … [P]laintiff’s submissions are insufficient to raise a triable issue of fact whether any … deviation was a proximate cause of decedent’s injuries …  and offered only conclusory and speculative assertions that earlier detection of recurrence and additional treatment would have produced a different outcome for decedent … . …

… .Radiology Associates’ experts, who were board certified neurosurgeons, were qualified to offer opinions on the emergency department radiology services provided to decedent … , inasmuch as the experts “possessed the requisite skill, training, knowledge and experience to render . . . reliable opinion[s]” in this case … . It is well settled that “[a] physician need not be a specialist in a particular field to qualify as a medical expert and any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony” … . Martingano v Hall, 2020 NY Slip Op 06618, Fourth Dept 11-13-20

 

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THE MAJORITY FOUND PLAINTIFF’S EXPERT’S AFFIDAVIT, ALLEGING PLAINTIFF’S DECEDENT WAS GIVEN TOO MUCH MORPHINE, WAS SPECULATIVE AND CONCLUSORY; TWO DISSENTERS DISAGREED; THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, affirming Supreme Court, over a two-justice partial dissent, determined the defendants’ motion for summary judgment in this medical malpractice action was properly granted. The dissenters argued there was a question of fact about whether plaintiff’s decedent was given too much morphine, but the majority found plaintiff’s expert’s affidavit speculative and conclusory on that issue:

… [T]he plaintiff relied upon the opinion of her expert that the decedent was negligently administered an overdose of morphine that caused or contributed to his death. The Supreme Court properly concluded that the expert’s unsupported and speculative opinion that an overdose caused or contributed to the decedent’s death was insufficient to raise a triable issue of fact, and we respectfully disagree with our dissenting colleagues’ contrary conclusion.

More specifically, neither the medical records nor the autopsy report indicated that the decedent suffered a morphine overdose. Further, neither the autopsy report nor the death certificate listed morphine as a cause of or contributing factor in the decedent’s death. It is unclear that the plaintiff’s expert even reviewed the death certificate and autopsy report, but, in any event, he did not address them or their conclusions that the decedent’s death was caused by septic shock brought about by other conditions. The plaintiff’s expert also failed to address the conclusion of the hospital’s expert that the decedent’s drop in blood pressure was related to his intra-abdominal process rather than the administration of medication. Indeed, although the plaintiff’s expert noted that morphine “can decease blood pressure and cause difficulty breathing,” he did not affirmatively state that the morphine actually caused these effects in the decedent, who was on a ventilator. Given the decedent’s multiple infirmities and severely compromised condition upon his admission to the hospital, and the failure of the plaintiff’s expert to address the conclusions reached in the death certificate, autopsy report, and affirmations of the defendants’ experts, the opinion of the plaintiff’s expert that a morphine overdose caused or contributed to the decedent’s death was speculative and conclusory … . Jacob v Franklin Hosp. Med. Ctr., 2020 NY Slip Op 06506, Second Dept 11-12-20

 

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STATEMENTS THAT PLAINTIFF’S DECEDENT SIGNED AN “AGAINST MEDICAL ADVICE” FORM BEFORE REFUSING TREATMENT WHICH WERE INCLUDED IN MEDICAL RECORDS AND IN THE DEPOSITIONS OF THE DOCTORS IN THIS MEDICAL MALPRACTICE ACTION WERE NOT ADMISSIBLE AS BUSINESS RECORDS, AS ADMISSIONS, AS DECLARATIONS AGAINST INTEREST, OR PURSUANT TO THE DEAD MAN’S STATUTE; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defendants’ verdict and ordering a new trial in this medical malpractice case, determined the statements in the medical records and in depositions that plaintiff’s decedent signed an “against medical advice” (AMA) form and refused admission to the hospital constituted inadmissible hearsay and were not admissible pursuant to the Dead Man’s Statute (CPLR 4519):

The defendants argue that the entries in the … Hospital records were admissible under the business records exception to the hearsay rule. Generally, “[a] hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient” (… see CPLR 4518[a]). However, “where the source of the information on the hospital or doctor’s record is unknown, the record is inadmissible” … . This is because “‘each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception'” … . Here, although the entries were germane to the decedent’s diagnosis and treatment, because the record does not reflect that the source of the information in the entries was known, it cannot be established whether the source had a duty to make the statement or whether some other hearsay exception applied … . …

… [W]e disagree with the Supreme Court’s determination that the deposition testimony of {the doctors] was admissible. Pursuant to CPLR 4519, otherwise known as the Dead Man’s Statute, “[u]pon the trial of an action . . . a party or a person interested in the event . . . shall not be examined as a witness in his [or her] own behalf or interest . . . against the executor, administrator or survivor of a deceased person or the committee of a mentally ill person . . . concerning a personal transaction or communication between the witness and the deceased person or mentally ill person, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his [or her] own behalf, of the testimony of the mentally ill person or deceased person is given in evidence, concerning the same transaction or communication.” Here, both [doctors] were defendants at the time they gave deposition testimony, making them interested parties under the statute …. Moreover, they both testified to transactions or communications with the decedent and sought to offer that testimony against the decedent’s estate. Grechko v Maimonides Med. Ctr., 2020 NY Slip Op 06504, Second Dept 11-12-20

 

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THE DEFENDANT SURGEON’S TESTIMONY DID NOT MEET THE CRITERIA FOR HABIT EVIDENCE; THEREFORE THE DEFENSE EXPERT, WHO RELIED ON THE INSUFFICIENT HABIT EVIDENCE, DID NOT MAKE OUT A PRIMA FACIE CASE; EVEN IF SUFFICIENT, HABIT EVIDENCE ONLY RAISES AN INFERENCE FOR THE JURY TO CONSIDER, IT DOES NOT ESTABLISH WHAT PROCEDURE WAS FOLLOWED AS A MATTER OF LAW; NEW EVIDENCE RAISED IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED (FIRST DEPT).

The First Department, reversing Supreme Court, in full-fledged opinion by Justice Gische, determined: (1) the defendant surgeon’s (Dr. Fielding’s) testimony did not meet the criteria for habit or custom evidence; (2) habit evidence, even when sufficient, gives the jury the basis for an inference, but does not demonstrate what was done as a matter of law; and (3) a new theory raised in the reply papers should not have been considered. Dr. Fielding had no independent recollection of the operation on plaintiff. Defendant’s motion for summary judgment should not have been granted:

In order to lay a foundation for [the] admission [of habit evidence], Dr. Fielding needed to establish that the practice of palpitating the bowel for perforations was routinely done by him in his open bariatric surgeries, and that it did not vary from patient to patient. He did not do so. He failed to offer testimony or provide any other proof regarding the number of times he had followed such a procedure during the hundreds of bariatric surgeries he had performed … . Nor did Dr. Fielding describe the LAP-Band procedure as being routine, without variation from patient to patient. Since Dr. Fielding did not lay a proper evidentiary foundation for his testimony based on custom and practice, and the expert’s opinion was made in reliance on that testimony, defendants did not satisfy their burden of proving a prima facie case entitling them to summary judgment … . …

… [E]ven if an appropriate foundation was laid for the habit testimony that defendants’ expert relied on, the motion for summary judgment still should have been denied. Where habit evidence is admitted, it only establishes that the claimed behavior or conduct was persistent and repeated in similar circumstances … . Evidence of habit only provides a basis for the jury to draw an inference, but it cannot be the basis for judgment as a matter of law … . Guido v Fielding, 2020 NY Slip Op 06391, First Dept 11-10-20

 

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THE ALLEGATION THAT DEFENDANT SURGEONS PERFORMED A CHIROPRACTIC PROCEDURE DURING SPINAL FUSION SURGERY SOUNDED IN BATTERY, NOT MEDICAL MALPRACTICE, AND WAS TIME-BARRED; PLAINTIFF’S EXPERT, A CHIROPRACTOR, WAS NOT QUALIFIED TO OFFER AN OPINION ABOUT DEFENDANTS’ SURGERY (THIRD DEPT).

The Third Department determined plaintiff’s allegation the defendant doctors derotated her pelvis (a chiropractic procedure) during spine fusion surgery sounded in battery, not medical malpractice, because the claim alleged intentional, not negligent, conduct. Therefore the one-year statute of limitations applied and the action was time-barred. Plaintiff’s expert, a chiropractor, was not qualified to offer an opinion about the surgery performed by the defendants:

… [A]ny claim that defendants derotated plaintiff’s pelvis as a separate procedure from the surgery to which she consented is necessarily an allegation that they acted intentionally. Despite the fact that plaintiff’s complaint alleges only negligence, “when a patient agrees to treatment for one condition and is subjected to a procedure related to a completely different condition, there can be no question but that the deviation from the consent given was intentional” … . As such, this claim is subject to the one-year statute of limitations for the intentional tort of battery — that is, “intentional physical contact with another person without that person’s consent” — rather than the 2½-year period applicable to medical malpractice claims … . Young v Sethi, 2020 NY Slip Op 06330, Third Dept 11-5-20

 

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QUESTIONS OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether the continuous treatment applied such that the action was not barred by the statute of limitations:

… [T]he plaintiffs raised a question of fact as to whether [defendant’s] postoperative treatment of the patient, including rehabilitative therapy, wound care, and pain management, constituted a continuation of the course of treatment for the condition which originally gave rise to the alleged medical malpractice … . …

… [T]he plaintiffs raised a question of fact as to whether the [the rehabilitation center’s] postoperative treatment of the patient, which included rehabilitative therapy, wound care, and pain management treatment through January 2015, constituted a continuation of the course of treatment for the condition which originally gave rise to the alleged medical malpractice … . Wright v Southampton Hosp., 2020 NY Slip Op 06170, Second Dept 10-28-20

 

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NEITHER THE “HABIT” NOR THE “ERROR IN JUDGMENT” JURY INSTRUCTION WAS APPROPRIATE IN THIS MEDICAL MALPRACTICE CASE; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the defense verdict in this medical malpractice case and ordering a new trial, determined: (1) the “habit” jury instruction should not have been given; (2) the “error in judgment” jury instruction should not have been given; and (3) plaintiff’s expert cardiologist should have been allowed to testify about the appropriateness of taking plaintiff off the anti-coagulant medication, DAPT. Plaintiff had a heart attack in 2012 and was put on DAPT permanently by his cardiologist to prevent blood clots. In 2014 defendant cardiologist agreed to the defendant gastroenterologist’s request to have plaintiff stop taking DAPT temporarily to allow a colonoscopy procedure. While plaintiff was off the DAPT he had another heart attack:

… [T]he very conduct that is the subject of the [habit] charge in question is the “course of treatment regarding patients they held in common.” In order for a habit charge to be appropriate, the proof must demonstrate “‘a deliberate and repetitive practice by a person in complete control of the circumstances'” … . “On no view . . . can conduct involving not only oneself but particularly other persons . . . produce a regular usage because of the likely variation of the circumstances in which such conduct will be indulged” … . Here, neither defendant had complete control, and both defendants testified that their decisions regarding temporary cessation of DAPT prior to or after a colonoscopy varied depending on the circumstances of each patient. …

An error in judgment charge “is appropriate only in a narrow category of medical malpractice cases in which there is evidence that [the] defendant physician considered and chose among several medically acceptable treatment alternatives” … . “A distinction must therefore be made between an ‘error in judgment’ and a doctor’s failure to exercise his or her best judgment. Giving the ‘error in judgment’ charge without regard for this distinction would otherwise relieve doctors whose conduct would constitute a breach of duty from liability” … . Here, the primary issue at trial was whether defendants deviated from the standard of care in determining to temporarily cease [plaintiff’s] DAPT both before and after his colonoscopy. There was no evidence presented that defendants chose between two or more medically accepted alternatives … . …

Plaintiffs’ cardiology expert established that he had knowledge and expertise in this area and should not have been barred from testifying as to whether [the gatroenterologist’s] decision to temporarily cease DAPT for 14 days after the colonoscopy was a departure from the standard of care … . Michalko v Deluccia, 2020 NY Slip Op 05991, Third Dept 10-22-20

 

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PLAINTIFFS’ EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE AND RELIED ON FACTS NOT IN THE RECORD; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice should not have granted because plaintiffs’ expert’s affidavit relied on facts not in the record:

… [W]e disagree with the Supreme Court’s determination that the affirmation of the plaintiffs’ expert, submitted in opposition to the motion, was sufficient to raise a triable issue of fact as to whether the defendants deviated or departed from accepted medical practice. Even assuming that the plaintiffs’ expert was qualified to opine on the placement of an epidural catheter, the expert’s opinion that [defendant] departed from the standard of care was conclusory and speculative, and relied on facts that were not supported by the record … . Herrera v Sanroman, 2020 NY Slip Op 05726, Second Dept 10-14-20

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT ADDRESS THE CLAIM ASSOCIATED WITH TOOTH NUMBER 28 IN THIS DENTAL MALPRACTICE ACTION; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THAT CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The First Department, reversing (modifying) Supreme Court, noted that the plaintiff’s expert’s affidavit did not address the plaintiff’s dental malpractice claim with respect to one tooth (tooth number 28). Therefore defendant’s motion for summary judgment should have been granted on that claim:

Even assuming, as defendant claims, that plaintiff would still have had to undergo future dental work had these six teeth been saved, and that any disfigurement was not fairly attributable to defendant because plaintiff opted to have another dentist install her dentures, these facts do not negate the primary injury claimed by plaintiff — the unnecessary loss of these teeth. It is immaterial that plaintiff’s expert did not indicate that he or she had reviewed plaintiff or her husband’s deposition testimony, as review of these documents was not necessary to make an informed determination about the appropriateness of treatment. * * *

However, defendant’s motion for summary judgment should have been granted insofar as plaintiff’s claims are directed at tooth number 28, because plaintiff’s expert failed to raise an issue of fact regarding a departure of care with respect to this tooth. Castro v Yakobashvilli, 2020 NY Slip Op 05281, First Dept 10-1-20

 

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