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RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT).

The Second Department, affirming the grant of summary judgment to the defendants in this medical malpractice action, explained the criteria for the applicability of the doctrine of res ipsa loquitur in this context:

In opposition to the defendants’ motion, the plaintiff relied on the doctrine of res ipsa loquitur. To rely on that doctrine, a plaintiff must show that “(1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendants’ exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff” … . A plaintiff “need not conclusively eliminate the possibility of all other causes of the injury” … . A plaintiff must only show that the likelihood of other possible causes of the injury is so reduced ” that the greater probability lies at defendant’s door'” … .

Here, the redacted and unsigned affirmation of the plaintiff’s medical expert was not entitled to consideration … and, in any event, was insufficient to raise a triable issue of fact. The plaintiff failed to raise a triable issue of fact regarding the applicability of the doctrine of res ipsa loquitur, as she did not demonstrate that the injury is of a kind that ordinarily does not occur in the absence of negligence or that the instrumentality that caused her injury was within the defendants’ exclusive control … . Pagano v Cohen, 2018 NY Slip Op 05599, Second Dept 8-1-18

MEDICAL MALPRACTICE (RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))/RES IPSA LOQUITUR (MEDICAL MALPRACTICE, RES IPSA LOQUITUR DOCTRINE NOT SHOWN TO BE APPLICABLE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION PROPERLY GRANTED (SECOND DEPT))

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RELEASE, WHICH PURPORTED TO COVER FUTURE MALPRACTICE ACTIONS STEMMING FROM THE FIRST ADMISSION TO THE HOSPITAL, DID NOT COVER A MALPRACTICE ACTION STEMMING FROM A SECOND ADMISSION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a release, which purported to cover future actions in a medical malpractice suit resulting from a hospital (NSUH) admission, did not preclude a second suit that arose from a second hospital admission:

The parties settled Action No. 1 … and executed … a release that released NSUH “and all . . . related business entities . . . and all . . . employees, physicians, [and] servants, . . . from all past, present and future [*2]claims, demands, obligations, actions, causes of action, wrongful death or bodily or personal injury claims . . . of any kind whatsoever, whether known or unknown, based upon any legal or equitable theory, . . . which the RELEASORS, their heirs, executors, administrators . . . hereafter can, shall, or may now have, or may hereafter accrue or otherwise be acquired, against RELEASEES for, upon, or by reason or any actual or alleged act, omission, transaction, practice, conduct, occurrence, or other matter . . . from the beginning of the world to the day of the date of this RELEASE” (hereinafter the release). * * *

Contrary to the Supreme Court’s determination, NSUH failed to establish, as a matter of law, that the release executed by the parties settling Action No. 1 was intended to preclude the plaintiff from recovering for claims that allegedly arose during and as a result of the second admission, which were not yet in dispute at the time the release was executed … . While the plaintiff may have been aware of the incident giving rise to Action No. 2 when she signed the release, any such awareness is insufficient, itself, to establish that the release was intended to cover any potential claims which were not the subject of Action No. 1. Chiappone v North Shore Univ. Hosp., 2018 NY Slip Op 05569, Second Dept 8-1-18

MEDICAL MALPRACTICE (RELEASE, WHICH PURPORTED TO COVER FUTURE MALPRACTICE ACTIONS STEMMING FROM THE FIRST ADMISSION TO THE HOSPITAL, DID NOT COVER A MALPRACTICE ACTION STEMMING FROM A SECOND ADMISSION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, RELEASE, WHICH PURPORTED TO COVER FUTURE MALPRACTICE ACTIONS STEMMING FROM THE FIRST ADMISSION TO THE HOSPITAL, DID NOT COVER A MALPRACTICE ACTION STEMMING FROM A SECOND ADMISSION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/CONTRACT (RELEASE, WHICH PURPORTED TO COVER FUTURE MALPRACTICE ACTIONS STEMMING FROM THE FIRST ADMISSION TO THE HOSPITAL, DID NOT COVER A MALPRACTICE ACTION STEMMING FROM A SECOND ADMISSION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/RELEASE (RELEASE, WHICH PURPORTED TO COVER FUTURE MALPRACTICE ACTIONS STEMMING FROM THE FIRST ADMISSION TO THE HOSPITAL, DID NOT COVER A MALPRACTICE ACTION STEMMING FROM A SECOND ADMISSION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT).

The Second Department determined plaintiffs’ motion to vacate the dismissal of their medical malpractice action, which had been automatically dismissed pursuant to CPLR 3404, was properly denied:

The plaintiff … allegedly was injured at the time of his birth in April 1995, as a result of the defendants’ negligence. In 1997, the plaintiffs commenced an action against the defendants … . It is undisputed that on September 26, 2003, the action was marked off the trial calendar upon the plaintiffs’ request so that the plaintiffs’ counsel could amplify the bill of particulars based on the injured plaintiff’s recent psychological evaluations. Later, the action was automatically dismissed pursuant to CPLR 3404. By notice of motion dated November 12, 2015, the plaintiffs moved to vacate the dismissal of the action and to restore the action to the trial calendar. * * *

Here, the plaintiffs failed to demonstrate a reasonable excuse for their more than 12-year delay in moving to restore the action to the trial calendar. The plaintiffs failed to adequately explain why it took more than 12 years from the time the action was marked off the trial calendar to ascertain the effects of the injuries that the injured plaintiff allegedly sustained at birth … . Furthermore, in light of the plaintiffs’ inactivity regarding the action during the more than 12-year period prior to moving to restore the action to the trial calendar, the plaintiffs failed to rebut the presumption of abandonment that attaches when a matter has been automatically dismissed … . Moreover, the plaintiffs failed to demonstrate that the defendants would not be prejudiced if the case were to be restored to the trial calendar, given the 20-year and 7-month delay between the date this action accrued and the date of the plaintiffs’ motion to restore … . Hagler v Southampton Hosp., 2018 NY Slip Op 05579, Second Dept 8-1-18

CIVIL PROCEDURE (MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))/CPLR 3404 (MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, MOTION TO VACATE AUTOMATIC DISMISSAL OF PLAINTIFFS’ MEDICAL MALPRACTICE ACTION AFTER A 12 YEAR DELAY PROPERLY DENIED (SECOND DEPT))

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INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT).

The Second Department determined that the instruction to follow up did not constitute a continuing course of treatment and the statute of limitations, therefore, was not tolled in this medical malpractice action. The court further found that the relation-back doctrine did not apply to defendants who were deliberately omitted from the action:

“Under the continuous treatment doctrine, the 2½ year [limitations] period does not begin to run until the end of the course of treatment, when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint'” … . Here, the plaintiff has not raised a triable issue of fact as to whether this toll applies. The diagnostic services performed by Buscaglia were discrete and complete, and not part of a course of treatment … . As to Watkins, the mere statement on the decedent’s transfer summary that the decedent should “follow-up” with “Dr. Watkins’ clinic” as an outpatient in two or three months did not evince a continued course of treatment where no follow-up appointment was actually scheduled, and the decedent thereafter received treatment at other hospitals … .

The plaintiff also failed to raise a triable issue of fact as to the applicability of the relation back doctrine … . That doctrine requires the plaintiff to demonstrate, among other things, that the new defendants knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been commenced against them as well … . “When a plaintiff intentionally decides not to assert a claim against a party known to be potentially liable, there has been no mistake and the plaintiff should not be given a second opportunity to assert that claim after the limitations period has expired” … . Here, there was no showing of a mistake concerning the defendants’ identities, which would have prevented the plaintiff from commencing an action against them before the statute of limitations expired … . Yanez v Watkins, 2018 NY Slip Op 05622, Second Dept 8-1-18

MEDICAL MALPRACTICE (INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT))/CONTINUING COURSE OF TREATMENT (MEDICAL MALPRACTICE, INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT))/RELATION BACK DOCTRINE (INSTRUCTION TO FOLLOW UP IS NOT PART OF A CONTINUING COURSE OF TREATMENT, RELATION BACK DOCTRINE DOES NOT APPLY TO DEFENDANTS DELIBERATELY OMITTED FROM THE ACTION, MEDICAL MALPRACTICE CAUSES OF ACTION TIME-BARRED (SECOND DEPT))

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MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the medical malpractice action should not have been dismissed on the ground that a motion to substitute the representative of plaintiff’s estate was not timely made:

In October 2004, Patricia Tokar (hereinafter Patricia) commenced this action to recover damages for medical malpractice based upon treatment she received from 2000 to 2002. Patricia’s deposition was taken in September 2006 and again in August 2009, while the defendant’s deposition was taken in April 2008. A note of issue was filed in December 2009. The matter was called for trial on 12 separate occasions between 2011 and 2012. By letter dated October 19, 2012, Patricia’s attorney informed the defendant’s attorney that Patricia had died two weeks before, and that her husband, Stanley Tokar (hereinafter Stanley), would be seeking to be appointed administrator of Patricia’s estate after he completed his mourning period. In October 2014, Stanley filed a petition for letters of administration of Patricia’s estate. By order to show cause dated May 12, 2015, the defendant moved pursuant to CPLR 1021 to dismiss the complaint for failure to seek a timely substitution of parties on behalf of Patricia. On June 5, 2015, letters of administration were issued to Stanley, who then moved, seven days later, on June 12, 2015, pursuant to CPLR 1012, to be substituted, as administrator of Patricia’s estate, as the plaintiff in the action. The Supreme Court denied Stanley’s motion and granted the defendant’s motion … .  …

CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made.” The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or defense has potential merit … .

Here, the record does not support a finding that there was a lack of diligence in the filing of the petition for Stanley to be substituted, or that the defendant was prejudiced by the delay in the appointment of Stanley as administrator, particularly since this case turns on medical records in the defendant’s possession … . Further, Stanley sufficiently demonstrated that the action has potential merit … . Moreover, there is a strong public policy that matters should be disposed of on the merits … . ​Tokar v Weissberg, 2018 NY Slip Op 05516, Second Dept 7-25-18

CIVIL PROCEDURE (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))/TRUSTS AND ESTATES (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))/MEDICAL MALPRACTICE (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))/NEGLIGENCE  (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))

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LEAVE TO FILE A LATE NOTICE OF CLAIM WAS PROPERLY GRANTED IN THIS CANCER TREATMENT MALPRACTICE ACTION, WHERE THE ALLEGED MALPRACTICE IS APPARENT FROM THE MEDICAL RECORDS, THE RECORDS CONSTITUTE ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT).

The Second Department determined petitioner’s motion seeking leave to file a late notice of claim for medical malpractice against the NYC Health & Hospitals Corporation was properly granted. Plaintiff alleged malpractice in the treatment of a cancerous lesion:

“Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute actual knowledge of the facts constituting the claim'” … . Here, in support of her petition, the petitioner submitted medical records and an affirmation of a physician who reviewed the medical records and concluded, inter alia, that there had been a departure from accepted medical practice. Inasmuch as the medical records show that the hospital failed to confirm that the plaintiff’s tumor had been completely removed, they provided the appellant with actual knowledge of the essential facts constituting the claim … . Furthermore, the petitioner made an initial showing that the appellant would not suffer any prejudice by the delay in serving a notice of claim, and the appellant failed to rebut the petitioner’s showing with particularized indicia of prejudice … . Finally, the lack of a reasonable excuse is not dispositive where there is actual notice and absence of prejudice … . In any event, the petitioner demonstrated that her extensive medical treatment during the time period at issue constitutes a reasonable excuse for the delay … . Matter of Leon v New York City Health & Hosps. Corp., 2018 NY Slip Op 05165, Second Dept 7-11-18

MUNICIPAL LAW (NOTICE OF CLAIM, MEDICAL MALPRACTICE, LEAVE TO FILE A LATE NOTICE OF CLAIM WAS PROPERLY GRANTED IN THIS CANCER TREATMENT MALPRACTICE ACTION, WHERE THE ALLEGED MALPRACTICE IS APPARENT FROM THE MEDICAL RECORDS, THE RECORDS CONSTITUTE ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, MEDICAL MALPRACTICE, LEAVE TO FILE A LATE NOTICE OF CLAIM WAS PROPERLY GRANTED IN THIS CANCER TREATMENT MALPRACTICE ACTION, WHERE THE ALLEGED MALPRACTICE IS APPARENT FROM THE MEDICAL RECORDS, THE RECORDS CONSTITUTE ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM WAS PROPERLY GRANTED IN THIS CANCER TREATMENT MALPRACTICE ACTION, WHERE THE ALLEGED MALPRACTICE IS APPARENT FROM THE MEDICAL RECORDS, THE RECORDS CONSTITUTE ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, MEDICAL MALPRACTICE, LEAVE TO FILE A LATE NOTICE OF CLAIM WAS PROPERLY GRANTED IN THIS CANCER TREATMENT MALPRACTICE ACTION, WHERE THE ALLEGED MALPRACTICE IS APPARENT FROM THE MEDICAL RECORDS, THE RECORDS CONSTITUTE ACTUAL KNOWLEDGE OF THE CLAIM (SECOND DEPT))

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PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT).

The Second Department determined the property defendants’ motion to join the slip and fall action with a medical malpractice action stemming from the slip and fall injury was properly denied. Plaintiff had stepped in a rodent hole and subsequently sued hospitals for malpractice in the treatment of her foot injury:

“When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue” (CPLR 602[a]…). The determination of such a motion is addressed to the sound discretion of the trial court… . Denial of the motion may be warranted where common questions of law or fact are lacking … , where the actions involve dissimilar issues or disparate legal theories … , or where a joint trial would substantially prejudice an opposing party … or pose a risk of confusing the jury or rendering the litigation unwieldy … .

Here, the Supreme Court providently exercised its discretion in denying the property defendants’ motion for a joint trial given the limited commonality between the two actions, the disparate legal theories and dissimilar issues they involve, the very different procedural stages of the two actions at the time the motion was made, and the potential prejudice to the opposing parties as well as the risks of juror confusion and unwieldy litigation if a joint trial was granted … . Cromwell v CRP 482 Riverdale Ave., LLC, 2018 NY Slip Op 05137, Second Dept 7-11-18

​CIVIL PROCEDURE (PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/NEGLIGENCE (CIVIL PROCEDURE, JOINDER, PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/MEDICAL MALPRACTICE  (CIVIL PROCEDURE, JOINDER, PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/CPLR 602  (PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/JOINDER (CIVIL PROCEDURE, (PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (CIVIL PROCEDURE, JOINDER, PROPERTY DEFENDANTS’ MOTION TO JOIN THE SLIP AND FALL ACTION WITH A MEDICAL MALPRACTICE ACTION STEMMING FROM THE SLIP AND FALL INJURY PROPERLY DENIED (SECOND DEPT))

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COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff had stated a cause of action for battery alleging a medical procedure was performed without her consent:

“It is well settled that a medical professional may be deemed to have committed battery, rather than malpractice, if he or she carries out a procedure or treatment to which the patient has provided no consent at all’ ” … . Here, in moving under CPLR 3211 (a) (7), defendants attached all of the pleadings, which alleged, inter alia, that defendants “performed a procedure upon the Plaintiff while she was under general anesthesia without informing her or obtaining any consent, which conduct constituted a battery upon her.” Defendants also referenced and provided to the court the informed consent form executed by plaintiff that explicitly authorized the performance of a flexible sigmoidoscopy, but not a colonoscopy. The form further noted in relevant part that, “[i]f any unforeseen condition arises during the procedure calling for, in the physician’s judgment, additional procedures, treatments, or operations, [defendant is] authorize[d] . . . to do whatever he . . . deems advisable.” We conclude that plaintiff has sufficiently asserted a cause of action sounding in battery by alleging that she provided no consent to the performance of a colonoscopy … , and that the evidentiary submissions considered by the court, including the consent form, do not “establish conclusively that plaintiff has no cause of action” sounding in battery … . McCarthy v Shah, 2018 NY Slip Op 04887, Fourth Dept 6-29-18

​MEDICAL MALPRACTICE (BATTERY, COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, BATTERY, COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT))/BATTERY (MEDICAL MALPRACTICE,  COMPLAINT ALLEGING A MEDICAL PROCEDURE WAS PERFORMED TO WHICH PLAINTIFF DID NOT CONSENT STATED A CAUSE OF ACTION FOR BATTERY (FOURTH DEPT))

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FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT)

The Second Department noted that the defendant’s (NYS’s) failure to plead a jurisdictional defect as a defense (defendant had not timely filed and served notice of claim) waived the defect. The claimant did not present expert evidence to support the medical malpractice claim and therefore did not demonstrate that any alleged deviation from the accepted standard of care was the proximate case of his injury. The claimant alleged a negligent failure to diagnose a urinary tract infection (UTI):

“To establish a prima facie case of medical malpractice, a plaintiff must set forth (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach was the proximate cause of his or her injuries”… . Further, where, as here, the subject matter (UTIs) and treatment thereof are “not within the ordinary experience and knowledge of laypersons”… , the claimant must establish a prima facie case of medical malpractice through expert medical opinion … . Whitfield v State of New York, 2018 NY Slip Op 04773, Second Dept 6-27-18

COURT OF CLAIMS (FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/MEDICAL MALPRACTICE (EXPERT OPINION, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EVIDENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))

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MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to set aside the verdict as against the weight of the evidence should not have been granted:

“It is well established that [a] verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence”… . “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” … .

Here, there was sharply conflicting expert testimony with respect to whether plaintiff’s postoperative symptoms could have occurred without negligence on the part of defendant, and the jury was entitled to credit the testimony of defendants’ experts and reject the testimony of plaintiff’s expert … . We conclude that the court erred in setting aside the verdict as against the weight of the evidence inasmuch as “the jury had ample basis to conclude that plaintiff’s postoperative condition was not attributable to any deviation from accepted community standards of medical practice by defendant” … , and thus the jury’s finding that defendant was not negligent was not “palpably irrational or wrong” … . Clark v Loftus, 2018 NY Slip Op 04473, Fourth Dept 6-15-18

​NEGLIGENCE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/MEDICAL MALPRACTICE (MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE,  MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/CIVIL PROCEDURE (SET ASIDE THE VERDICT, MOTION TO, MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/VERDICT, MOTION TO SET ASIDE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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