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WHERE THERE IS CONFLICTING EXPERT OPINION EVIDENCE IN A MEDICAL MALPRACTICE ACTION, SUMMARY JUDGMENT IS NOT APPROPRIATE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendant hospital’s motion for summary judgment in this medical malpractice action should not have been granted. Although the hospital made out a prima facie case with expert evidence, the plaintiff produced conflicting expert evidence:

On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff’s injuries  … . In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars … . If the defendant makes such a showing, the burden then shifts to the plaintiff to raise a triable issue of fact, but only as to those elements on which the defendant met its prima facie burden of proof … .

Here, [defendant] Brookhaven met its initial burden of demonstrating its entitlement to judgment as a matter of law dismissing the first cause of action by submitting an expert’s affirmation establishing that the diagnostic testing and consultations performed by its personnel were, within a reasonable medical certainty, appropriate and within prevailing standards of practice. In opposition, however, the plaintiff’s expert opined that the delay in performing and reviewing the second CT scan …, constituted a departure from prevailing standards of care. Where, as here, the parties submit conflicting medical expert opinions, summary judgment is not appropriate … . Sheppard v Brookhaven Mem. Hosp. Med. Ctr., 2019 NY Slip Op 03097, Second Dept 4-24-18

 

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MOTION FOR A JUDGMENT AS A MATTER OF LAW MADE DURING JURY SELECTION WAS PREMATURE, GRANTING THE MOTION ON SPOLIATION GROUNDS VIOLATED THE LAW OF THE CASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to strike defendant’s answer on spoliation grounds in this medical malpractice and wrongful death action, made during jury selection, should not have been granted. It was not a proper motion for a judgment as a matter of law pursuant to CPLR 4401 and the ruling violated the law of the case:

During jury selection, the plaintiff made an oral application, in effect, to strike the defendant’s answer and for judgment as a matter of law on the issue of liability based on the defendant’s alleged spoliation of evidence relating to certain telemetry strips and the defendant’s failure to perform an autopsy on the decedent. In opposition, the defendant argued, among other things, that the Supreme Court had previously denied that branch of a prior motion by the plaintiff which was to strike the defendant’s answer based on the defendant’s alleged spoliation of evidence. …

“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 plaintiff’s oral application, which was made during jury selection, was not based on any admissions by the defendant, and the Supreme Court should not have considered the merits of the plaintiff’s application at that juncture … .

“The doctrine of the law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” … . The doctrine forecloses reexamination of an issue previously determined by a court of coordinate jurisdiction “absent a showing of newly discovered evidence or a change in the law” … .

Here, the Supreme Court violated the doctrine of law of the case by disregarding the prior order denying that branch of the plaintiff’s earlier motion which was to strike the defendant’s answer based upon the same evidentiary issues … . Fishon v Richmond Univ. Med. Ctr., 2019 NY Slip Op 02682. Second Dept 4-10-19

 

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ACTION BASED UPON FAILURE TO SUPERVISE PLAINTIFF’S USE OF A HOSPITAL REST ROOM SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, THE ACTION WAS THEREFORE TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s action, which alleged inadequate supervision when plaintiff used a hospital rest room, sounded in medical malpractice, not negligence. Therefore the action was time-barred:

Plaintiff alleges that defendants failed to properly assess her condition and the degree of her supervisory needs in the restroom, a claim sounding in medical malpractice, and her action, brought three years after her injuries, is therefore untimely … . Because the loss of consortium claim is derivative of the injured plaintiff’s claim, that cause of action must also be dismissed as untimely … . Kim v New York Presbyt., 2019 NY Slip Op 02425, First Dept 3-28-19

 

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DECEDENT’S CONSENT TO SURGERY SUBMITTED IN SUPPORT OF SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION DID NOT VIOLATE THE DEAD MAN’S STATUTE, THE CONSENT WAS AUTHENTICATED BY THE MEDICAL RECORDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice and wrongful death actions should have been dismissed. With respect to the “lack of informed consent” cause of action, the court held that the submission of the informed consent form by the defendant did not violate the Dead Man’s Statute:

The plaintiff contends that Meyerson [defendant surgeon] cannot rely upon the portion of his expert’s affidavit which states that the decedent was aware of the risks of the procedure because he signed a consent form for a similar procedure in 2012, because this evidence would be inadmissible pursuant to CPLR 4519, the so-called Dead Man’s Statute. CPLR 4519 “precludes a party or person interested in the underlying event from offering testimony concerning a personal transaction or communication with the decedent” … .

While evidence excludable at trial under CPLR 4519 may be considered in opposition to a motion for summary judgment so long as it is not the sole evidence proffered … , such evidence “should not be used to support summary judgment” … . However, the statute does not bar “the introduction of documentary evidence against a deceased’s estate. . . . [A]n adverse party’s introduction of a document authored by a deceased does not violate the Dead Man’s Statute, as long as the document is authenticated by a source other than an interested witness’s testimony concerning a transaction or communication with the deceased” … . Inasmuch as the expert’s affidavit as to the decedent’s execution of the form was predicated upon the medical records, which contained the decedent’s consent form for the prior surgery and on which the expert relied, and the records were properly authenticated and submitted on the motion, Meyerson properly relied upon the expert opinion to support his motion … . Wright v Morning Star Ambulette Servs., Inc., 2019 NY Slip Op 02381, Second Dept 3-27-19

 

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DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT FINDING LIABILITY IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AWARDING NO DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING OR FUTURE LOST WAGES SHOULD HAVE BEEN GRANTED, PLAINTIFF ALLEGED HER CHILD WAS INJURED IN UTERO (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendants’ motion to set aside the verdict finding liability in this medical malpractice action should not have been granted, and the plaintiff’s motion to set aside so much of the verdict as awarded no damages for past or future pain and suffering or future lost earnings should have been granted. The action alleged damage to plaintiff’s child in utero:

Here, the plaintiff adduced legally sufficient proof to establish a departure from the standard of care and as to causation. In particular, the plaintiff’s expert obstetrician-gynecologist, Barry Schifrin, opined that the child suffered a placental “abruption plus or minus fetomaternal transfusion,” which caused “a problem of oxygen availability in the baby’s brain.” Schifrin opined that continuous EFM testing should have been undertaken beginning on the date of the mother’s fall, November 4, 2008. Schifrin testified that the EFM performed on November 12, 2008, showed that the child had been in distress for “quite some time.” The plaintiff’s expert pediatric hematologist, Jill DeJong, opined that the child’s anemia was related to a fetomaternal transfusion. Based on that evidence, the jury could have reasonably found that had the respondents undertaken or begun continuous EFM on November 10, 2008, the harm to the child would have been avoided or mitigated. Further, although the respondents’ experts opined that the respondents did not depart from accepted practice, the jury was entitled to resolve the conflicting expert testimony in the plaintiff’s favor  … . Accordingly, the Supreme Court should not have granted that branch of the respondents’ motion which was to set aside the jury verdict on the issue of liability and for judgment as a matter of law … .

The jury’s failure to award any damages for past pain and suffering and future pain and suffering deviates materially from reasonable compensation, in light of the evidence of the severe deficits suffered by the child, her ongoing need for medical treatment, ongoing medical events such as intractable seizures, and evidence of her consciousness and ability to interact with others (see CPLR 5501[c] …). The jury’s failure to award any damages for future lost earnings also deviates materially from reasonable compensation … . Larkin v Wagner, 2019 NY Slip Op 02327, Second Dept 3-27-19

 

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE AND IMPROPERLY RAISED AN ISSUE NOT DISCERNABLE FROM THE PLAINTIFF’S BILL OF PARTICULARS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should have been granted because the plaintiff’s expert affidavit was conclusory and speculative. The court noted that plaintiff’s expert raised an issue that was not discernable from the plaintiff’s bill of particulars and therefore should not have been considered:

…[T]he defendant established his prima facie entitlement to judgment as a matter of law by submitting an expert affirmation indicating that the treatment and care given to the plaintiff by the defendant on May 13, 2013, did not deviate from accepted community standards of practice, that the plaintiff’s infection, which occurred more than four months after that visit, was too remote in time to have been proximately caused by the defendant’s treatment, and that the defendant had the plaintiff’s informed consent for the procedure.

In opposition, the plaintiff submitted, inter alia, an affirmation of her expert, who opined that the defendant did not follow the good and accepted podiatric standard of care because although the defendant tested the plaintiff’s foot pulse and found it to be low, the defendant did not refer the plaintiff to a vascular surgeon. We agree with the defendant that this assertion was not readily discernable from the allegations in the plaintiff’s bill of particulars, and, thus, was a new theory of liability that should not have been considered by the Supreme Court … . Iodice v Giordano, 2019 NY Slip Op 02072, Second Dept 3-20-19

 

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AUDIT TRAIL, I.E., METADATA SHOWING WHO ACCESSED PLAINTIFF’S MEDICAL RECORDS, WHERE AND WHEN THEY WERE ACCESSED, AND ANY CHANGES TO THE RECORDS, WAS DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION ALLEGING IMPROPER TREATMENT AFTER SURGERY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the so-called “audit trail,” which indicates who accessed plaintiff’s medical records, where and when they were accessed and any changes made to the records (metadata), was discoverable in this medical malpractice action. The complaint alleged failure to properly treat plaintiff after surgery which led to infection and amputation:

The plaintiffs demonstrated, and Wyckoff [medical center] does not dispute, that an audit trail generally shows the sequence of events related to the use of a patient’s electronic medical records; i.e., who accessed the records, when and where the records were accessed, and changes made to the records … . Hospitals are required to maintain audit trails under federal and state law (see 45 CFR 164.312[b]; 10 NYCRR 405.10[c][4][v]). As argued by the plaintiffs, the requested audit trail was relevant to the allegations of negligence that underlie this medical malpractice action in that the audit trail would provide, or was reasonably likely to lead to, information bearing directly on the post-operative care that was provided to the injured plaintiff. Moreover, the plaintiffs’ request was limited to the period immediately following the injured plaintiff’s surgery. The plaintiffs further demonstrated that such disclosure was also needed to assist preparation for trial by enabling their counsel to ascertain whether the patient records that were eventually provided to them were complete and unaltered … .

In response to the plaintiffs’ threshold showing, Wyckoff failed to demonstrate that the requested disclosure was improper or otherwise unwarranted. Although Wyckoff argued that the audit trail may contain information that would not be useful to the plaintiffs, it did not dispute that the audit trail would nevertheless contain information pertaining to the medical care that it provided to the injured plaintiff in the wake of his foot surgery. Vargas v Lee, 2019 NY Slip Op 02142, Second Dept 3-20-19

 

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LATE NOTICE OF CLAIM IN THIS MEDICAL MALPRACTICE ACTION, SERVED THREE YEARS AFTER THE DEVELOPMENTALLY DELAYED CHILD’S BIRTH, SHOULD HAVE BEEN DEEMED TIMELY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court, determent the late notice of claim in this medical malpractice action should have been deemed timely served. The notice of claim was served in 2012 and the plaintiff-child was born in 2009. It became apparent in 2010 that the child was unable to bear weight on her legs and her development was delayed:

The record here indicates that the defendant was aware that the child’s condition was related to glucose levels, which were not measured at birth. Thus, the defendant acquired actual knowledge of the essential facts constituting the claim immediately after the incident, and well within the 90 day period after the claim arose … .

The delay in serving a notice of claim was also directly attributable to the child’s infancy, since it was not apparent that the child had suffered a permanent injury until after the 90-day period expired. When the child’s injuries became apparent, the plaintiff served a late notice of claim without leave of court. Although this Court has ruled that actual knowledge of the essential facts constituting the claim cannot be inferred from a late notice of claim served without leave of the court … , in this case the late notice of claim generated a hearing pursuant to General Municipal Law § 50-h, where the defendant conducted an examination of the plaintiff and the essential facts constituting the claim were explore … . Feduniak v New York City Health & Hosps. Corp. (Queens Hosp. Center), 2019 NY Slip Op 01564, Second Dept 3-6-19

 

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LATE NOTICE OF CLAIM SHOULD HAVE BEEN DEEMED TIMELY SERVED, MEDICAL RECORDS PROVIDED TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s motion to deem a late notice of claim timely served should have been granted. The attempt to serve the notice of claim was three years late. Plaintiff, who was born in 2010, brought a medical malpractice action alleging the city hospital was negligent by sending plaintiff’s mother home when she presented at the emergency room complaining of contractions. The Second Department held that the medical records provided the defendant with timely knowledge of the nature of the claim:

The medical records demonstrated that the hospital failed to admit the plaintiff’s mother to the hospital when she presented to the emergency room on November 23, 2010, notwithstanding an order in the emergency room record from a physician that the mother “was to be admitted secondary to non-reassuring fetal heart tracing.” Inasmuch as the medical records, upon independent review, showed that the mother was not admitted to the hospital on November 23, 2010, despite a physician’s order, and that two days later, the plaintiff was delivered one hour after the mother arrived at the hospital and only after a fetal heart monitor alarm sounded four times, they provided the hospital with actual knowledge of the essential facts constituting the claim … . …

… [T]the plaintiff made an initial showing that the hospital would not suffer any prejudice by the delay in serving a notice of claim, and the hospital failed to rebut the showing with particularized indicia of prejudice… . Further, the absence of prejudice was demonstrated by virtue of the fact that the hospital had possessed timely actual knowledge of the essential facts constituting the claim … . J.H. v New York City Health & Hosps. Corp., 2019 NY Slip Op 01203, Second Dept 2-20-19

 

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PLAINTIFF’S EXPERT DID NOT LAY A FOUNDATION FOR AN OPINION ABOUT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURY, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff was treated by an ophthalmologist for eye pain. The doctor suspected glaucoma. Six months later plaintiff was diagnosed with meningioma, a noncancerous tumor of the membranes surrounding the brain. Plaintiff’s expert did not lay a foundation for an opinion that the meningioma could have been treated with radiation, rather than surgery, had it been discovered earlier:

” 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” … . Here, the plaintiff’s expert, who was board certified in ophthalmology, was qualified to, and did, raise a triable issue of fact as to whether [defendants] deviated from the accepted standard of care in failing to refer the plaintiff to a neurologist to further evaluate his symptoms. However, the affidavit was insufficient to establish that the plaintiff’s meningioma could have been treated by radiation instead of surgery if it had been detected in November 2014. The plaintiff’s expert failed to articulate that he had any training in the treatment of meningiomas or what, if anything, he did to familiarize himself with the applicable standard of care. The affidavit, therefore, lacked probative value and failed to raise a triable issue of fact as to whether any departure from the accepted standard of care proximately caused the plaintiff’s injuries … . Simpson v Edghill, 2019 NY Slip Op 00923, Second Dept 2-6-19

 

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