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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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SUPREME COURT SHOULD NOT HAVE DISMISSED THIS DENTAL MALPRACTICE ACTION ON THE GROUND THE PLAINTIFFS’ EXPERT WAS NOT QUALIFIED TO RENDER AN OPINION; ANY WEAKNESSES IN THE EXPERT’S AFFIDAVIT WENT TO ITS WEIGHT NOT ITS ADMISSIBILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this dental malpractice action should not have been dismissed. The weaknesses in plaintiffs’ expert’s affidavit went to the weight of her opinion as evidence, not its admissibility:

The Supreme Court granted that branch of the motion, determining that the defendant demonstrated his prima facie entitlement to judgment as a matter of law dismissing the dental malpractice cause of action insofar as asserted against him, and that the expert affirmation submitted by the plaintiffs in opposition lacked probative value because the plaintiffs’ expert was not qualified to render an opinion as to the applicable standard of care. …

… [T]he affirmation of the plaintiffs’ expert was sufficient to demonstrate his qualifications to render opinions as to the applicable standard of care and, under these circumstances, raised triable issues of fact as to whether the defendant deviated from that standard and whether any such deviation was a proximate cause of [plaintiff’s] injuries … . “Any lack of skill or expertise that the plaintiff’s expert may have had goes to the weight of his or her opinion as evidence, not its admissibility” … . The parties’ conflicting expert opinions raised questions of credibility for the trier of fact … . Lesniak v Huang, 2020 NY Slip Op 05044, Second Dept 9-23-20

 

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CLAIMANTS’ MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED PRIMARILY BECAUSE THE MEDICAL RECORDS PROVIDED THE STATE WITH TIMELY KNOWLEDGE OF THE NATURE OF THE CLAIM (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimants’ motion for leave to file a late notice of claim pursuant to Court of Claims Act 10(6) in this medical malpractice action should have been granted, primarily because the state had timely knowledge of the nature of the claim and was not prejudiced by the 14 week delay:

… [T]he claimants demonstrated that the State had timely notice of the essential facts constituting the claim, inter alia, to recover damages for personal injuries arising from the alleged malpractice, by virtue of the medical records from Southampton Hospital as well as the medical records from Stony Brook University Hospital (hereinafter University Hospital), also owned by the State, to which the claimants’ infant son was transferred and where he later died … . The medical records evidence the medical care received by the claimant and the infant. The records show that during the claimant’s labor, no sonogram of the fetus was taken to determine the fetus’ head size. The records also show that, after approximately nine hours of unsuccessful labor at Southampton Hospital, which included the administration of pitocin, a birth-facilitating drug, and an epidural, the claimant was counseled about using forceps to deliver the fetus. After the claimant agreed to try a forceps-assisted delivery and declined to consent to an episiotomy, the infant was delivered via forceps-assistance and was diagnosed immediately with a hemorrhage below his scalp as a result of “birth trauma.” Thereafter, the infant was transferred to University Hospital, where he died a week later. The autopsy report in University Hospital’s medical records indicates that the infant suffered, inter alia, an injury during the forceps-assisted delivery which separated the infant’s brain stem from his upper cervical spinal cord region, and the infant’s overly large head was noted to be a factor in this injury. Although the treating physician noted in his report—which was created after the delivery—that the claimant did not want a cesarean section, the claimant’s medical record contains a form signed by the claimant on admission consenting to a cesarean section. There is no documentation in the record to show that the claimant was advised that a cesarean section should be performed. In addition, the claimant’s medical records, postdelivery, demonstrate that she experienced perineal lacerations and vaginal tears, which were deep and penetrated the perirectal tissue, as a result of the delivery. Stirnweiss v State of New York, 2020 NY Slip Op 04986, Second Dept 9-16-20

 

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SUPREME COURT PROPERLY LIMITED THE DEPOSITION QUESTIONING OF A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION AND PROPERLY ORDERED THAT THE DEPOSITION BE SUPERVISED BECAUSE OF MISCONDUCT ON BOTH SIDES DURING A PRIOR DEPOSITION (SECOND DEPT).

The Second Department, over an extensive dissent, determined Supreme Court properly issued a protective order limiting the deposition questioning of a doctor (Brem) in this medical malpractice action and properly ordered that the deposition be supervised. Both sides had engaged in misconduct at the prior deposition:

… [T]he Supreme Court providently exercised its discretion in granting those branches of Winthrop’s [the hospital’s] motion which were for a protective order to the extent of limiting further questioning of Brem solely to his observations and treatment of decubitis ulcers sustained by Slapo [plaintiff’s decedent] and to direct that Brem’s continued deposition be supervised by a special referee. While we agree with the court’s characterization of the improper conduct of Slapo’s attorney at Brem’s deposition, we observe that the defense attorneys violated 22 NYCRR 221.1 by making numerous objections and making speaking objections. We further note that Brem violated 22 NYCRR 221.2 by refusing to answer questions. Given the obstructive conduct by the defense attorneys and Brem in violation of 22 NYCRR part 221, and the improper conduct of Slapo’s attorney during the deposition, we agree with the court that appropriate supervision of the balance of Brem’s deposition is necessary. Because both sides have engaged in arguably sanctionable conduct during the course of Brem’s deposition … , it was inappropriate to compel the plaintiff to solely bear the cost of supervision thereof. Further, without the consent of all the parties, the court may not compel a party to pay for or contribute to the cost of an outside referee (see CPLR 3104[b] …). Accordingly, we modify the order so as to direct that Brem’s continued deposition be supervised by a court-employed special referee … , a judicial hearing officer, or a court attorney referee. Slapo v Winthrop Univ. Hosp., 2020 NY Slip Op 04887, Second Dept 9-2-20

 

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BECAUSE PLAINTIFF’S EXPERT AFFIDAVIT IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS SEVERAL OF THE MALPRACTICE CLAIMS RAISED IN THE PLEADINGS, THOSE CLAIMS WERE DEEMED ABANDONED (FOURTH DEPT).

The Fourth Department noted that the affidavit of plaintiff’s expert in this medical malpractice action did not address several of the allegations of defendant’s negligence. Therefore the unaddressed claims were deemed abandoned:

The affidavit of plaintiff’s expert anesthesiologist addressed defendant’s conduct only with respect to the claims arising from defendant’s alleged failure to ensure that the transport of Pasek [plaintiff] to the operating room was performed safely and his alleged failure to document the disconnection event and resulting blood loss in Pasek’s medical chart. Inasmuch as plaintiff’s expert failed to address the claims against defendant regarding the diagnosis, consulting, testing, examination, and pre- and post-operative treatment and did not identify any deviation with respect to defendant’s efforts to ventilate, monitor, or resuscitate Pasek, those claims are deemed abandoned. Supreme Court thus erred in denying defendant’s motion with respect to those claims … , and we therefore modify the order accordingly. Pasek v Catholic Health Sys., Inc., 2020 NY Slip Op 04652, Fourth Dept 8-20-20

 

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PLAINTIFF’S DECEDENT’S MEDICAL MALPRACTICE AND WRONGFUL DEATH ACTIONS WERE NOT TIME-BARRED, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice and wrongful death causes of action on behalf of decedent should not have been dismissed as time-barred:

The plaintiff’s decedent died due to complications related to cancer on August 29, 2015. On May 26, 2016, the plaintiff commenced this action to recover damages for wrongful death and medical malpractice against, among others, the defendants Forest Hills Hospital (hereinafter FHH) and Sergio Martinez, a physician (hereinafter together the defendants). As is relevant to these appeals, the complaint alleged negligent acts and omissions by the defendants related to the decedent’s hospitalization at FHH from July 30, 2013, to August 1, 2013. After joinder of issue, Martinez and FHH separately moved pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, so much of the complaint as was based upon alleged acts of malpractice committed before November 26, 2013, insofar as asserted against each of them. … Supreme Court granted the defendants’ separate motions. …

We disagree with the Supreme Court’s determination that the statute of limitations barred causes of action to recover damages for medical malpractice that accrued prior to November 26, 2013 (i.e., 2½ years before the date the action was commenced), rather than February 28, 2013 (i.e., 2½ years before the date of the decedent’s death) (see EPTL 5-4.1 …). Since, at the time of his death, the decedent had a valid cause of action to recover damages for medical malpractice based upon acts or omissions occurring on or after February 28, 2013, and since the wrongful death cause of action was commenced within two years of the date of his death, the wrongful death cause of action was timely commenced … . Accordingly, any causes of action to recover damages for medical malpractice that accrued on or after February 28, 2013 (i.e., within 2½ years of the decedent’s death), including the decedent’s July 2013 hospitalization, were timely. Further, the plaintiff then had one year from the decedent’s death to assert a cause of action alleging conscious pain and suffering (see CPLR 210[a]; …). Perez v Baez, 2020 NY Slip Op 04329, Second Dept 7-29-20

 

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THE HOSPITAL DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT LAY A SUFFICIENT FOUNDATION FOR THE EXPERT’S OPINIONS ON MATTERS OUTSIDE OF OBSTETRICS AND GYNECOLOGY; THE HOSPITAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the hospital defendants’ expert’s affidavit did not establish that the expert (D’Amico) was qualified to offer an opinion on several issues surrounding the birth process and therefore did not provide sufficient evidence to support the hospital defendants’ motion for summary judgment:

… [T]he expert affirmation offered by the hospital defendants lacked probative value, because the expert, a physician who was board-certified in the fields of obstetrics and gynecology, failed to lay a foundation for the reliability of his opinions in the fields of pediatrics, orthopedics, or anesthesia.

” 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” … . “Where no such foundation is laid, the expert’s opinion is of no probative value,'” and is therefore insufficient to meet a party’s burden on a summary judgment motion … . …

We reject the hospital defendants’ contention that D’Amico’s professed familiarity with “postpartum and neonatal care,” through his extensive experience delivering newborns, was sufficient, without more, to establish his qualifications to render reliable opinion testimony on issues including, inter alia: (1) whether [defendant] De Jesus, an orthopedic intern, acted in an appropriate and timely manner in diagnosing and treating Roizman’s [plaintiff’s] pubic bone diastasis; (2) whether [defendant] Naves-Ruiz, a pediatrician, properly responded to the infant’s neonatal oxygen desaturation, properly ruled out sepsis and treated the infant with antibiotics for presumed pneumonia and infection, and performed all appropriate tests; (3) whether the staff of the Lenox Hill Hospital Department of Anesthesiology properly performed Roizman’s epidural; and, (4) whether the staff of Lenox Hill Hospital was negligent and in any way contributed to the plaintiffs’ alleged injuries … . Roizman v Stromer, 2020 NY Slip Op 04196, Second Dept 7-22-20

 

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DEFENDANT DOCTORS’ MOTIONS FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED; ONE DOCTOR DID NOT DEMONSTRATE HE DID NOT PARTICIPATE IN THE RESUSCITATION OF THE NEWBORN; THERE WAS A QUESTION OF FACT WHETHER A SECOND DOCTOR EMPLOYED THE PROPER RESUSCITATION METHOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the summary judgment motions brought by two defendant doctors in this medical malpractice action should not have been granted. Essentially the alleged malpractice concerned the resuscitation of plaintiffs’ baby, E.K., in the seconds and minutes after birth. There were questions of fact about whether Dr. De Christofaro participated in the resuscitation efforts. And there were questions of fact whether Dr. Aleti-Jacobs used a proper resuscitation method:

De Christofaro failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him. The expert affirmations submitted in support of De Christofaro’s motion failed to address, inter alia, the plaintiffs’ allegation i… that De Christofaro departed from the standard of care with regard to the resuscitation and intubation that took place in the minutes following E. K.’s birth. In particular, De Christofaro failed to eliminate triable issues of fact regarding his level of participation in the resuscitation and intubation of E. K. … . While De Christofaro testified at his deposition that there was nothing in E. K.’s medical records indicating that he was present in the delivery room during the intubation of E. K., the record does not conclusively establish his absence … . Critically, De Christofaro testified that he could not place an exact time at which he first became involved in E. K.’s care, that he “most certainly could have been there and helped in the resuscitation,” and that he could not recall the circumstances regarding E. K.’s intubation or who performed the intubation. …

… [T]he plaintiffs raised a triable issue of fact through the affirmation of their expert, who opined, inter alia, that Aleti-Jacobs breached the standard of care by administering PPV [positive pressure ventilation] to E. K. upon his birth rather than immediately intubating him. The plaintiffs’ expert opined that a baby, such as E. K., who was born with an Apgar score of one should have been intubated “within the first 15 to 20 second[s] of life.” According to one hospital record, E. K. was not successfully intubated until four minutes after his birth. Additionally, the plaintiffs’ expert’s opinion was sufficient to raise a triable issue of fact as to whether the alleged failure to timely intubate E. K. was a proximate cause of his injuries. E.K. v Tovar, 2020 NY Slip Op 03904, Second Dept 7-15-20

 

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