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PLAINTIFF SUFFERED AN EYE INJURY AT SOME POINT IN HIP REPLACEMENT SURGERY OR IN THE RECOVERY ROOM AND SUED SEVERAL DEFENDANTS RELYING ON THE RES IPSA LOQUITUR DOCTRINE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THAT ASPECT OF PLAINTIFF’S CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment should have been granted to the extent plaintiff relied on the doctrine of res ipsa loquitur. Plaintiff, who underwent hip replacement surgery, suffered an eye injury either in the operating room or the recovery room:

Plaintiff commenced this medical malpractice action seeking damages for injuries he sustained to his left eye during hip replacement surgery performed at defendant St. Joseph’s Hospital (Hospital). Defendants Brett Greenky, M.D. and Syracuse Orthopedic Specialists, P.C. (SOS) were retained by plaintiff to perform the surgery, and defendants Mehtab Singh Bajwa, M.D., Tracie O’Shea, C.R.N.A., and the Anesthesia Group of Onondaga, P.C. (collectively, anesthesia defendants) were responsible for, inter alia, administering the anesthesia to plaintiff prior to the surgery. * * *

“Ordinarily, a plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff’s injury”… . “Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it” … .”In a multiple defendant action in which a plaintiff relies on the theory of res ipsa loquitur, a plaintiff is not required to identify the negligent actor . . . That rule is particularly appropriate in a medical malpractice case such as this in which the plaintiff has been anesthetized” … . Here, plaintiff was under the care and control of Greenky, SOS and the anesthesia defendants during the surgery, and the Hospital immediately after the surgery. During that time, plaintiff was either under anesthesia and/or not fully awake or oriented to his surroundings. While O’Shea testified that there was no indication of an eye injury when she delivered plaintiff to the recovery room, hospital staff testified that plaintiff’s eye was noticeably irritated at that time. Consequently, there is an issue of fact whether plaintiff sustained the eye injury in the operating room or in the recovery room. ” Plaintiff was rendered unconscious for the purpose of undergoing surgical treatment . . . [, and] it is manifestly unreasonable for [the defendants] to insist that [he] identify any one of them as the person who did the alleged negligent act’ ” … . White v Bajwa, 2018 NY Slip Op 03246, Fourth Dept 5-4-18

​NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF SUFFERED AN EYE INJURY AT SOME POINT IN HIP REPLACEMENT SURGERY OR IN THE RECOVERY ROOM AND SUED SEVERAL DEFENDANTS RELYING ON THE RES IPSA LOQUITUR DOCTRINE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THAT ASPECT OF PLAINTIFF’S CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/MEDICAL MALPRACTICE (RES IPSA LOQUITUR,  PLAINTIFF SUFFERED AN EYE INJURY AT SOME POINT IN HIP REPLACEMENT SURGERY OR IN THE RECOVERY ROOM AND SUED SEVERAL DEFENDANTS RELYING ON THE RES IPSA LOQUITUR DOCTRINE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THAT ASPECT OF PLAINTIFF’S CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, RES IPSA LOQUITUR, PLAINTIFF SUFFERED AN EYE INJURY AT SOME POINT IN HIP REPLACEMENT SURGERY OR IN THE RECOVERY ROOM AND SUED SEVERAL DEFENDANTS RELYING ON THE RES IPSA LOQUITUR DOCTRINE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THAT ASPECT OF PLAINTIFF’S CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/RES IPSA LOQUITUR (MEDICAL MALPRACTICE,  PLAINTIFF SUFFERED AN EYE INJURY AT SOME POINT IN HIP REPLACEMENT SURGERY OR IN THE RECOVERY ROOM AND SUED SEVERAL DEFENDANTS RELYING ON THE RES IPSA LOQUITUR DOCTRINE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THAT ASPECT OF PLAINTIFF’S CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT).

The Fourth Department determined a power point presentation made by a defendant in a medical malpractice action was discoverable, even though the power point presentation was created for a quality assurance review meeting (usually off limits for discovery pursuant to Executive Law 6527):

We … conclude that the disputed materials are discoverable under the exception to the privilege for “statements made by any person in attendance at . . . a [medical or quality assurance review] meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting” (Education Law § 6527 [3]). Disclosure under that exception may be obtained where: (1) the statements were made during a quality assurance review meeting; (2) that review meeting concerned the same subject matter as the malpractice action; and (3) the statements were made by a defendant in the action … . “Statements” include written statements, such as letters… , and the PowerPoint slide show at issue here. Drum v Collure, 2018 NY Slip Op 03244, Fourth Dept 5-4-18

​NEGLIGENCE (MEDICAL MALPRACTICE, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/MEDICAL MALPRACTICE (EDUCATION LAW, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/EDUCATION LAW (MEDICAL MALPRACTICE, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, EDUCATION LAW, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/HOSPITALS (QUALITY ASSURANCE REVIEW, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/QUALITY ASSURANCE REVIEW (HOSPITALS, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, DISCOVERY, EDUCATION LAW, QUALITY ASSURANCE REVIEW, MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))/DISCOVERY (MEDICAL MALPRACTICE, EDUCATION LAW,  MATERIAL PREPARED FOR HOSPITAL QUALITY ASSURANCE REVIEW DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION UNDER AN EXCEPTION TO EDUCATION LAW 6527 (FOURTH DEPT))

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CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to set aside the verdict in this medical malpractice, wrongful death case should not have been granted. Decedent was suffering from a life-threatening but eminently treatable condition (unstable angina) when he saw the defendant doctor.  Decedent died three days later. The doctor testified decedent had refused to go to the hospital. Credibility issues were raised about the substance of the defendant’s testimony. The Fourth Department noted that credibility issues are for the jury and should not be considered on a motion to set aside a verdict:

Defendant testified at trial that he recognized the life-threatening condition and conveyed to decedent “that he should go to the hospital” (emphasis added). Defendant further testified that he knew that “there needed to be more testing done,” but that decedent “adamant[ly]” “refused” to go to the hospital and “didn’t give [defendant] a good reason why.” Defendant’s notes, however, do not reflect any urgency. Indeed, the only notation made by defendant concerning that conversation was, “Discussed admit on Fri of holiday [weekend], declined.”

Moreover, despite the fact that defendant claimed to have recognized the severity of decedent’s condition, he did not set up any follow-up appointment with a cardiologist for over five days and admitted that he was “surprised” to learn of decedent’s death three days after his appointment with decedent.

As with most wrongful death cases, this case is complicated by the death of decedent, the only person who could have directly refuted defendant’s factual testimony. The Noseworthy doctrine thus provides that in a wrongful death case, such as this, “a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence” … . The doctrine “applies only to such factual testimony as the decedent might have testified to, had [he or she] lived’ ” … , and the “lesser degree of proof pertains to the weight which the circumstantial evidence may be afforded by the jury, not to the standard of proof the plaintiff must meet” … .

Here, the only direct testimony regarding whether defendant recognized the severity of decedent’s condition and explained that to him “came from defendant . . . and, implicit in the court’s findings is that his testimony was credible. Issues of credibility, however, are for the jury” … . We agree with plaintiff that there are issues with respect to defendant’s credibility, and those issues should not have been determined by the court. In our view, this is not a case in which there is “absolutely no showing of facts from which negligence may be inferred” … , and we thus conclude that the court erred in granting defendant’s motion for a directed verdict. Bolin v Goodman, 2018 NY Slip Op 02920, Fourth Dept 4-27-18

​NEGLIGENCE (MEDICAL MALPRACTICE, WRONGFUL DEATH, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/MEDICAL MALPRACTICE (CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, WRONGFUL DEATH,  CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/VERDICT, MOTION TO SET ASIDE (MEDICAL MALPRACTICE, WRONGFUL DEATH, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/WRONGFUL DEATH (NOSEWORTHY DOCTRINE, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))/NOSEWORTHY DOCTRINE (MEDICAL MALPRACTICE, WRONGFUL DEATH, CREDIBILITY ISSUES ARE FOR THE JURY, PLAINTIFF’S VERDICT SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE JUDGE’S FINDING DEFENDANT DOCTOR’S TESTIMONY CREDIBLE IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH CASE (FOURTH DEPT))

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CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the cause of action fOR medical malpractice stemming from an office visit within the limitations period was independently viable, and the continuous treatment doctrine rendered all the causes of action timely:

… [T]he claims based on allegations of negligent treatment during the January 2, 2013 office visit have an independent viability regardless of whether any prior alleged negligence is time-barred.

… [T]he record establishes that defendants provided continuous treatment to plaintiff for a condition, i.e., atrial fibrillation, until January 2, 2013; the alleged wrongful acts or omissions were related to that condition; and such treatment “gave rise to the . . . act, omission or failure” complained of … . Indeed, the record establishes that the alleged wrongful acts or omissions themselves ran continuously until January 2, 2013. We therefore reject defendants’ contention that the statute of limitations began to run at the time of the first prescription of Pradaxa on January 10, 2011. We conclude that the court erred in granting the motion inasmuch as this action was timely commenced within 2½ years of the cessation of defendants’ continuous treatment of plaintiff’s atrial fibrillation condition … . Phillips v Buffalo Heart Group, LLP, 2018 NY Slip Op 03055, Fourth Dept 4-27-18

​NEGLIGENCE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY, SUPREME COURT REVERSED (FOURTH DEPT))/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY, SUPREME COURT REVERSED (FOURTH DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY, SUPREME COURT REVERSED (FOURTH DEPT))/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE RENDERED THE MEDICAL MALPRACTICE ACTION TIMELY, SUPREME COURT REVERSED (FOURTH DEPT))

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MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff’s motion to set aside the verdict in this medical malpractice case should not have been granted. The jury found that the doctor’s postsurgical negligence (ordering an MRI of plaintiff’s hand rather than her wrist) was not a substantial factor in causing plaintiff’s injuries:

… [W]e conclude that the issues of negligence and proximate cause were not so inextricably interwoven as to make it logically impossible to find one without the other… . 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 … , and we conclude that defendants are entitled to that presumption here.

We also agree with defendants that the verdict was not against the weight of the evidence and that the court therefore erred in granting plaintiff’s posttrial motion. It is well settled that a jury verdict will be set aside as against the weight of the evidence only when the evidence at trial so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence … . Applying that principle here, we conclude that there is a fair interpretation of the evidence pursuant to which the jury could have found that, notwithstanding the error in ordering the incorrect MRI, defendant did not cause any postsurgery injuries alleged by plaintiff … . We further conclude that the “trial was a prototypical battle of the experts, and the jury’s acceptance of defendants’ case was a rational and fair interpretation of the evidence”… . Capierseo v Tomaino, 2018 NY Slip Op 02917, Fourth Dept 4-27-18

​NEGLIGENCE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/MEDICAL MALPRACTICE (MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/CIVIL PROCEDURE (SET ASIDE VERDICT, MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/VERDICT, MOTION TO SET ASIDE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))

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CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH STATES AN INTENTIONAL TORT SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT).

The Second Department determined several distinct issues (not all summarized here) that arose from a lawsuit alleging the defendant doctors and hospital performed a c-section birth against plaintiff’s wishes. The cause of action based upon defendants’ performing an unwanted procedure alleged an intentional tort and, based upon the one-year statute of limitations, was untimely. The Public Health Law cause of action was not appropriate because those statutes and regulations do not apply to hospitals (as opposed to residential health care facilities):

… [I]t is clear from the statutory scheme that Public Health Law § 2803-c was not intended to apply to hospitals.

Public Health Law § 2801-d authorizes a private right of action by patients of “residential health care facilities” for the violation of rights enumerated in Public Health Law § 2803-c. “Residential health care facility” is defined by the statute as “a nursing home or facility providing health-related service” (Public Health Law § 2801[3]). Since the hospital is not a “residential health care facility,” this provision is not applicable to the hospital … . The fact that the legislature did not specify that a private right of action was available against hospitals indicates that providing a private right of action to hospital patients was contrary to the legislative scheme. Therefore, no private right of action under the Public Health Law should be inferred … . Dray v Staten Is. Univ. Hosp., 2018 NY Slip Op 02314, Second Dept 4-4-18

NEGLIGENCE (MEDICAL MALPRACTICE, PUBLIC HEALTH LAW, CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH STATES AN INTENTIONAL TORT SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT))/MEDICAL MALPRACTICE (CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH STATES AN INTENTIONAL TORT SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT))/INTENTIONAL TORTS (MEDICAL MALPRACTICE, CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH STATES AN INTENTIONAL TORT SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT))/PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT))/HOSPITALS (PUBLIC HEALTH LAW, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT))

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MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff’s medical malpractice cause of action based upon a cancer misdiagnosis was time-barred. The misdiagnosis was made before the statute of limitations for cancer misdiagnosis was changed (it now runs from when the plaintiff knew or should have known of the misdiagnosis). The court rejected the attempt to extend the statute of limitations by asserting fraud-related causes of action based upon the malpractice and alleged concealment of the misdiagnosis:

Defendants … contend that plaintiff failed to state a cause of action for fraud or fraudulent concealment, and that they are not estopped from invoking the statute of limitations against plaintiff’s medical malpractice cause of action. We agree. “The elements of a cause of action for fraud in connection with charges of medical malpractice are knowledge on the part of the physician of the fact of his [or her] malpractice and of [the] patient’s injury in consequence thereof, coupled with a subsequent intentional, material misrepresentation by [the physician] to [the] patient known by [the physician] to be false at the time it was made, and on which the patient [justifiably] relied to his [or her] damage’ ” … . “The damages resulting from the fraud must be separate and distinct from those generated by the alleged malpractice” … . Additionally, “a defendant may be estopped to plead the [s]tatute of [l]imitations where [the] plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action”… . However, “without more, concealment by a physician or failure to disclose his [or her] own malpractice does not give rise to a cause of action in fraud or deceit separate and different from the customary malpractice action, thereby entitling the plaintiff to bring his [or her] action within the longer period limited for such claims” … . Forbes v Caris Life Sciences, Inc., 2018 NY Slip Op 02086, Fourth Dept 3-23-18

NEGLIGENCE (MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))/MEDICAL MALPRACTICE  (MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))/FRAUD (MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))/STATUTE OF LIMITATIONS (CANCER MISDIAGNOSIS, MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))/CANCER MISDIAGNOSIS (STATUTE OF LIMITATIONS, MEDICAL MALPRACTICE ACTION BASED UPON CANCER MISDIAGNOSIS PRIOR TO THE RELEVANT AMENDMENT OF THE STATUTE OF LIMITATIONS WAS TIME-BARRED, FRAUD-RELATED CAUSES OF ACTION BASED UPON THE MEDICAL MALPRACTICE REJECTED (FOURTH DEPT))

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REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT).

The Fourth Department determined a report concerning an investigation by the Department of Health which cited defendant health system for failure to inform plaintiff and his family of the unintentional disconnection of a heart-lung machine was not subject to disclosure:

Defendant met its burden of establishing that the information contained in the report was ” generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to Public Health Law § 2805-j’ “… . Thus, the information contained in the report is expressly exempted from disclosure under CPLR article 31 pursuant to the confidentiality conferred on information gathered by defendant in accordance with Education Law § 6527 (3) and Public Health Law § 2805-m … . Contrary to plaintiff’s contention that the privilege is “negated” because the report purportedly contains information that was improperly omitted from Pasek’s [plaintiff’s] medical records, it is well settled that “information which is privileged is not subject to disclosure no matter how strong the showing of need or relevancy”… . Indeed, the purpose of the privilege “is to enhance the objectivity of the review process’ and to assure that medical review [or quality assurance] committees may frankly and objectively analyze the quality of health services rendered’ by hospitals . . . , and thereby improve the quality of medical care” … . Pasek v Catholic Health Sys., Inc., 2018 NY Slip Op 02069, Fourth Dept 3-23-18

NEGLIGENCE (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/MEDICAL MALPRACTICE ( REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/EVIDENCE (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/EDUCATION LAW (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))/PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, REPORT RELATED TO CITING DEFENDANT HEALTH SYSTEM FOR FAILURE TO INFORM PLAINTIFF AND HIS FAMILY OF THE UNINTENTIONAL DISCONNECTION OF THE HEART-LUNG MACHINE IS CONFIDENTIAL AND NOT DISCOVERABLE UNDER CPLR ARTICLE 31, EDUCATION LAW 6527 AND PUBLIC HEALTH LAW 2805-m (FOURTH DEPT))

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NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT).

The First Department determined New York courts had jurisdiction over a New Jersey radiologist (Daulto) in this failure-to-diagnose-cancer medical malpractice action:

Plaintiff alleges that defendant Dauito, a radiologist, negligently read her sonogram, leading to a delay in the diagnosis and treatment of her breast cancer. Dr. Dauito avers that, at all relevant times, he was a New Jersey resident and worked only at an office in New Jersey. However, he acknowledges that he was licensed to practice medicine in New York and that he contracted with defendant Madison Avenue Radiology, P.C., a New York corporation, to provide radiology services to some of its New York patients. Plaintiff’s sonogram was performed in New York, Dr. Dauito relayed his diagnostic findings to Madison Avenue Radiology in New York, and Madison Avenue Radiology issued a report based on his findings that was allegedly relied upon by plaintiff and her doctors. Under these circumstances, New York courts may exercise jurisdiction over Dr. Dauito pursuant to CPLR 302(a)(1), notwithstanding his lack of physical presence in New York, because he transacted business with Madison Avenue Radiology and provided radiology services to patients in New York, including plaintiff, projecting himself into the State by electronically or telephonically transmitting his diagnostic findings … .

New York courts may also exercise jurisdiction over Dr. Dauito pursuant to CPLR 302(a)(3), because, as alleged, Dr. Dauito’s negligent misdiagnosis resulted in a delay in plaintiff’s treatment, thereby causing injury to plaintiff in New York, and Dr. Dauito should reasonably expect his out-of-state negligent misdiagnosis in plaintiff’s case to have consequences in New York … . Allen v Institute for Family Health, 2018 NY Slip Op 01998, First Dept 3-22-18

CIVIL PROCEDURE (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/LONG ARM JURISDICTION (NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT)))/CPLR 302(a) (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/MEDICAL MALPRACTICE (LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, LONG ARM JURISDICTION, NEW YORK COURTS HAVE JURISDICTION OVER A NEW JERSEY RADIOLOGIST IN THIS MISDIAGNOSIS MEDICAL MALPRACTICE ACTION PURSUANT TO TWO PROVISIONS OF CPLR 302(a) (FIRST DEPT))

,

QUESTION OF FACT WHETHER RESIDENT EXERCISED INDEPENDENT JUDGMENT IN THIS MEDICAL MALPRACTICE CASE, MAKING THE RESIDENT AND HOSPITAL POTENTIALLY LIABLE (FIRST DEPT).

The First Department determined there was a question of fact whether a resident exercised independent judgment in this medical malpractice case, making the resident and his employer (the hospital) potentially liable. Plaintiff’s decedent was intoxicated when given Valium:

Plaintiff’s decedent was brought into St. Barnabas Hospital by the police in an intoxicated and agitated condition. He was then chemically sedated with Valium. Two and one-half hours later, he “flatlined,” and, while resuscitative efforts were made, he did not awaken and was declared “brain dead” four days later.

Appellants contend that Dr. McGrath cannot be held liable for medical malpractice because, as a resident, he did not exercise independent medical judgment when he chose the type and dosage of sedative to use on decedent. However, the deposition testimony of the attending physician, defendant Dr. Rao, raised an issue of fact as to whether Dr. McGrath was permitted to, and in fact did, exercise independent medical judgment in deciding on the amount and type of sedation to administer, so that he may be held liable, and St. Barnabas Hospital may be held vicariously liable … . Burnett-Joseph v McGrath, 2018 NY Slip Op 01137, First Dept 2-15-18

NEGLIGENCE (MEDICAL MALPRACTICE, QUESTION OF FACT WHETHER RESIDENT EXERCISED INDEPENDENT JUDGMENT IN THIS MEDICAL MALPRACTICE CASE, MAKING THE RESIDENT AND HOSPITAL POTENTIALLY LIABLE (FIRST DEPT))/MEDICAL MALPRACTICE (QUESTION OF FACT WHETHER RESIDENT EXERCISED INDEPENDENT JUDGMENT IN THIS MEDICAL MALPRACTICE CASE, MAKING THE RESIDENT AND HOSPITAL POTENTIALLY LIABLE (FIRST DEPT))/INDEPENDENT JUDGMENT (MEDICAL MALPRACTICE, QUESTION OF FACT WHETHER RESIDENT EXERCISED INDEPENDENT JUDGMENT IN THIS MEDICAL MALPRACTICE CASE, MAKING THE RESIDENT AND HOSPITAL POTENTIALLY LIABLE (FIRST DEPT))/RESIDENTS (MEDICAL MALPRACTICE, QUESTION OF FACT WHETHER RESIDENT EXERCISED INDEPENDENT JUDGMENT IN THIS MEDICAL MALPRACTICE CASE, MAKING THE RESIDENT AND HOSPITAL POTENTIALLY LIABLE (FIRST DEPT))/HOSPITALS (MEDICAL MALPRACTICE, QUESTION OF FACT WHETHER RESIDENT EXERCISED INDEPENDENT JUDGMENT IN THIS MEDICAL MALPRACTICE CASE, MAKING THE RESIDENT AND HOSPITAL POTENTIALLY LIABLE (FIRST DEPT))

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