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PLAINTIFF FELL AT HER NURSING HOME AND EMERGENCY PERSONNEL FOUND HER UNATTENDED ON THE FLOOR WITH NO IDENTIFICATION BAND; DEFENDANT’S EXPERT, A CARDIAC CRITICAL CARE PHYSICIAN, DID NOT DEMONSTRATE FAMILIARITY WITH NURSING HOME CARE AND DID NOT ADDRESS ALL THE ALLEGATIONS IN THE PLEADINGS; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice/Public Health Law 2801-d action should not have been granted. The defendant relied on the expert opinion of a physician who did not demonstrate familiarity with nursing home care and did not address the allegations that plaintiff’s decedent was left unattended on the floor after she fell and defendant’s personnel did not cooperate with the EMS personnel who attended the decedent:

“On a motion for summary judgment dismissing the complaint in a medical malpractice action, a defendant must make a prima facie showing either that there was no departure from good and accepted medical practice, or that the plaintiff was not injured by any such departure” … . “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” … .

“Liability under the Public Health Law contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient. …

… [W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . …

… [T]he defendant relied on an expert affirmation of a physician who engaged in, inter alia, the practice of cardiac critical care. This affirmation did not indicate that the physician had training in geriatric or nursing home care or what, if anything, the physician did to become familiar with the standard of care for these specialties … . … [T]he defendant’s expert failed to specifically address the allegations that the defendant’s staff members left the decedent on the floor unattended while awaiting the arrival of EMS and failed to cooperate with EMS personnel upon their arrival … . … [T]he EMS report reflected that the defendant failed to provide EMS personnel with more than mere transfer paperwork. … [T]he decedent initially could not be identified because she did not have an identification band, and EMS personnel did not know whether the patient was on blood thinners or subject to any “advance directives.” Deitch v Sands Point Ctr. for Health & Rehabilitation, 2025 NY Slip Op 02317, Second Dept 4-23-25

Practice Point: Consult this decision for a clear explanation of the very different nature of a medical malpractice action as compared with a Public Health Law 2801-d action.

Practice Point: Here plaintiff’s decedent fell at her nursing home. Defendant’s expert, a cardiac physician, did not demonstrate any familiarity with nursing home care, rendering his affidavit insufficient.

Practice Point: In a medical malpractice/Public Health Law 2801-d action, the expert’s failure to address all the allegations in the pleadings renders the expert evidence insufficient.

 

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WHERE THE ESSENCE OF A MEDICAL MALPRACTICE ACTION IS THE FAILURE TO PROPERLY DIAGNOSE PLAINTIFF’S CONDITION, THE CRITERIA FOR A “LACK OF INFORMED CONSENT” CAUSE OF ACTION ARE NOT MET (SECOOND DEPT

The Second Department, reversing (modifying) Supreme Court in this medical malpractice action, determined the “lack of informed consent” cause of action should have been dismissed because the gravamen of the the allegations was the failure to evaluate the seriousness of plaintiff’s condition:

To establish a cause of action to recover damages for medical malpractice based on lack of informed consent, “a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . “The third element is construed to mean that the actual procedure performed for which there was no informed consent must have been a proximate cause of the injury” … . However, where, as here, the gravamen of a plaintiff’s allegations are essentially that, due to their negligence, the defendants failed to evaluate the seriousness of the patient’s condition, “‘with the result that affirmative treatment was not sought in a timely manner,'” a plaintiff fails to state cause of action based on lack of informed consent … . Danziger v Mayer, 2025 NY Slip Op 01354, Second Dept 3-12-25

Practice Point: Consult this decision for a clear explanation of the nature and elements of a “lack of informed consent” cause of action in a med mal case.​

 

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THE USE OF ICE PACKS WAS NOT PART OF THE DEFENDANT MANUFACTURER’S BURN-TREATMENT SYSTEM; THEREFORE THE DEFENDANT COULD NOT BE HELD LIABLE BY THE INJURED PLAINTIFF FOR THE FAILURE TO WARN AGAINST APPLYING ICE PACKS TO BARE SKIN (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant Zeltiq, the manufacturer of a system for treating burns (CoolSculpting Systems), could not be held liable for injury allegedly caused by the application of ice packs after the CoolSculpting treatment. The complaint alleged a failure to warn of the the danger of using ice packs. The use of ice packs was not part of the CoolSculpting treatment:

Zeltiq also had no duty to warn plaintiffs of any risks associated with using ice packs after treatment with the CoolSculpting System. Because the CoolSculpting System is a FDA Class II medical device that requires a prescription, Zeltiq’s duty to warn runs to physicians, not directly to patients … . Thus, in this case, Zeltiq’s duty ran to Silverstein’s [plaintiff’s] treating physician, Dr. Brauer. However, there is no duty to warn of risks that are obvious, including risks that are well-known to physicians because of their medical training … . Dr. Brauer testified that through his education and training, he was aware of and knew of the dangers of placing ice on bare skin, and that those dangers were basic medical knowledge … . Plaintiffs’ expert does not dispute that these dangers are basic knowledge in the medical community and, in fact, opines that it is a deviation from the standard of care to place ice packs on bare skin.

In addition, given Dr. Brauer’s awareness of the risk, his status as a “responsible intermediary” breaks the chain of proximate cause between any failure to warn by Zeltiq and the harm to Silverstein … . Silverstein v Coolsculpting Zeltiq Aesthetics, Inc., 2025 NY Slip Op 01183, First Dept 2-27-25

Practice Point: Here the application of ice packs to bare skin was not part of the defendant manufacturer’s burn-treatment system. The use of the burn-treatment system is by prescription only, so the duty to warn owed by the manufacturer runs to the physician, not the patient. Here the dangers of applying ice packs to bare skin are well known to physicians, so the use of ice packs by plaintiff’s physician broke the chain of proximate cause re: the defendant manufacturer.

 

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ALTHOUGH THIS MEDICAL MALPRACTICE ACTION WAS IMPROPERLY BROUGHT AS AN ORDER TO SHOW CAUSE AND PETITION, IT SHOULD NOT HAVE BEEN DISMISSED; RATHER IT SHOULD HAVE BEEN CONVERTED BY DEEMING THE ORDER TO SHOW CAUSE A SUMMONS AND THE PETITION A COMPLAINT; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the action should not have been dismissed because it was in the form of a proceeding rather than an action. Supreme Court should have converted the proceeding into the proper form:

The petitioner commenced this purported proceeding by the filing of an order to show cause and a petition, inter alia, for injunctive relief and to recover damages for medical malpractice. In opposition to the order to show cause and the petition, the respondent submitted an affirmation of counsel, in which counsel argued, among other things, that the proceeding should be dismissed because it was not brought in the proper form. The Supreme Court conducted a hearing on the petition. Thereafter, the court issued a judgment, in effect, denying the petition and dismissing the proceeding. The petitioner appeals.

Although this matter was improperly commenced in the form of a proceeding instead of an action, dismissal is not required. “Pursuant to CPLR 103(c), a proceeding should not be dismissed ‘solely because it is not brought in the proper form,’ and the court has the power to convert a proceeding into the proper form” … . Accordingly, we convert this proceeding into an action, inter alia, for injunctive relief and to recover damages for medical malpractice, with the order to show cause deemed to be the summons and the petition deemed to be the complaint (see CPLR 103[c] …), and remit the matter to the Supreme Court, Nassau County, to afford the respondent an opportunity to serve and file an answer within 20 days of service upon it of this decision and order with notice of entry … . Matter of Robinson v NYU Langone Hosps., 2025 NY Slip Op 00870, Second Dept 2-13-25

Practice Point: A proceeding brought in the wrong form can be converted to the proper form by the court pursuant to CPLR 103 (c).

 

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THE MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AND THE MOTION FOR LEAVE TO RENEW SHOULD HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION AGAINST THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (NYCHHC); CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for leave to file a late notice of claim against the New York City Health and Hospitals Corporation (NYCHHC) for medical malpractice, as well as the motion for leave to renew based upon recently disclosed medical records, should have been granted:​

… [P]etitioner established a reasonable excuse for the delay, to wit, the serious medical condition of the infant, which required hospitalization of the infant after his birth, feeding through a feeding tube, and numerous medical appointments while the condition of the infant was being assessed … . Considering the overall circumstances, including the petitioner’s natural predisposition to be more concerned with the infant’s medical condition and the treatment those injuries required, rather than with commencing legal action during the prescribed time period, the delay in serving a late notice of claim should have been excused … . Further, in support of that branch of the petitioner’s motion which was for leave to renew the petition, the petitioner submitted her medical records and an expert’s affidavit, which established that NYCHHC had actual knowledge of the essential facts constituting the claim since the alleged malpractice was apparent from an independent review of the medical records … . The medical records were not submitted earlier because, although the petitioner sought her medical records in August 2022, she only received those records on December 22, 2022 … . Further, the medical records were voluminous.

Since the conduct at issue was fully documented in the medical records, the petitioner made an initial showing that NYCHHC was not prejudiced by the delay in serving the notice of claim … , and, in response, the NYCHHC made no showing of prejudice. ​​​​​Matter of Bergado v New York City Health & Hosps. Corp., 2024 NY Slip Op 06039, Second Dept 12-4-24

Practice Point: Here the mother of the injured infant proffered an adequate excuse for failing to timely file a notice of claim in this medical malpractice action against the NYC Health and Hospitals Corporation (NYCHHC) and demonstrated the NYCHHC had timely notice of the nature of the action and suffered no prejudice from the delay through the medical records.

Practice Point: The motion for leave to renew was properly based upon mother’s recent receipt of medicals records not previously provided.

 

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DEFENDANT DOCTOR’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE BILL OF PARTICULARS, RENDERING IT CONCLUSORY AND SPECULATIVE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant doctor’s (Buono’s) motion for summary judgment in this medical malpractice action should not have been granted: Buono’s expert’s affidavit did not address all the allegations in the bill of particulars, rendering it conclusory and speculative:

“To prevail on a motion for summary judgment in a medical malpractice action, a defendant must establish, prima facie, either that there was no departure from good and accepted medical practice or that any departure was not a proximate cause of the plaintiff’s injuries” … . “In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s bill of particulars” … . Here, Buono failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice insofar as asserted against him. The plaintiff specifically alleged in his bill of particulars, inter alia, that Buono was negligent in abandoning the plaintiff in the operating room before the procedure was completed. In support of his motion, Buono submitted an affirmation of an expert who opined that Buono did not depart from good and accepted medical practice because, “as an assistant, DR. BUONO was entitled to leave the operating room as soon as his services were no longer required.” That opinion, however, failed to address certain evidence, including medical records and deposition testimony of Brady and Buono, that raised a triable issue of fact as to whether Buono was the assistant or the surgeon performing the procedure. As such, the expert’s opinion is conclusory, speculative, and wholly insufficient to establish Buono’s prima facie entitlement to judgment as a matter of law … . The expert also failed to establish that Buono’s alleged negligence was not a proximate cause of the plaintiff’s injuries. Woehrle v Buono, 2024 NY Slip Op 05815, Second Dept 11-20-24

Practice Point: In a medical malpractice action an expert affidavit in support of a defendant’s motion for summary judgment must address all the allegations in the pleadings or it will be deemed conclusory and speculative.

Similar issue and result in Bonocore v Ravindranath, 2024 NY Slip Op 05824, First Dept 11-21-24.

 

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THE FAILURE TO GRANT PLAINTIFF’S REQUEST THAT THE JURY BE GIVEN AN INTERROGATORY ON THE THEORY THE SURGEON IMPROPERLY PERFORMED A PROCEDURE WAS REVERSIBLE ERROR ( SECOND DEPT).

The Second Department, ordering a new trial on one of the theories of negligence, determined plaintiff’s request that the jury be given an interrogatory should have been granted:

… [T]he Supreme Court erred in denying the plaintiff’s request that the jury be given an interrogatory asking whether [defendant] Lazzaro departed from good and accepted standards of medical practice by “the improper performance of a surgical procedure,” and therefore a new trial is required on this theory of negligence. “‘Jury interrogatories must be based on claims supported by the evidence'” … . “‘The trial court has broad discretion in deciding whether to submit interrogatories to the jury'” … . “However, where there is sufficient evidence to support a plaintiff’s cause of action pursuant to a particular theory of negligence, it is error to deny a request by the plaintiff to submit an interrogatory to the jury regarding that theory” … .

Here, the plaintiff introduced sufficient evidence at trial to support her theory that Lazzaro departed from good and accepted standards of medical practice by the manner in which he performed the surgery … . Lawrence v New York Methodist Hosp., 2024 NY Slip Op 05571, Second Dept 11-13-24

Practice Point: In this medical malpractice case, there was sufficient proof a defendant improperly performed a surgical procedure to warrant granting plaintiff’s request to give the jury an interrogatory on the issue. The denial of the request was deemed reversible error.

 

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER THE STROKE DIAGNOSIS WAS TIMELY AND WHETHER THE FAILURE TO MAKE A TIMELY DIAGNOSIS DECREASED THE CHANCES OF A BETTER OUTCOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised a question of fact in this medical malpractice action alleging the failure to timely diagnose a stroke:

Where a plaintiff in a medical malpractice action alleges a failure to timely diagnose a condition, the plaintiff must show that the departures from the standard of care delayed diagnosis and decreased the chances of a better outcome or increased the injury … . The plaintiff submitted an affirmation of an emergency medicine physician who opined, inter alia, that the hospital’s staff failed to take a thorough history of the decedent’s symptoms and failed to provide an interpreter for that purpose in contravention of the applicable standard of care. The plaintiff also submitted an affirmation of a radiologist, who opined that a CT scan of the decedent’s brain performed on the day that the decedent presented to the hospital showed an infarct and that the hospital’s radiologist had failed to recognize this evidence of a stroke. The plaintiff’s emergency medicine expert opined that had the decedent been properly and timely diagnosed, treatment options were available, including the possible administration of tPA or the use of certain other medications.

Under these circumstances, the plaintiff raised triable issues of fact as to whether there was a departure from the standard of care and whether such departure decreased the chances of a better outcome or increased the decedent’s injuries … . Hanna v Staten Is. Univ. Hosp., 2024 NY Slip Op 05435, Second Dept 11-6-24

Practice Point: Here plaintiff’s expert raised a question of fact about whether the stroke diagnosis was timely and whether the delay decreased the chances of a better outcome.

 

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IN A MEDICAL MALPRACTICE ACTION, A SPECULATIVE AND CONCLUSORY EXPERT AFFIDAVIT WILL NOT SUPPORT SUMMARY JUDGMENT IN FAVOR OF DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Andre) was not entitled to summary judgment dismissing the medical malpractice action because defendant’s expert’s affidavit was “speculative and conclusory:”

The affidavit and supplemental affidavit of Andes’s expert physician, Reed E. Phillips, were insufficient to establish the absence of any departure from good and accepted medical practice … . Phillips’s opinion that Andes did not depart from the standard of care by failing, inter alia, to obtain the decedent’s prior medical records, to order a CT scan, MRI, or other imaging, and to timely diagnose the decedent with liver cancer, as well as his opinion that the decedent’s cancer was incurable by the time the decedent first treated with Andes, was speculative and conclusory and otherwise insufficient to demonstrate that Andes comported with good and accepted standards of practice in his care and treatment of the decedent or that any alleged departure was not a proximate cause of the decedent’s injuries and ultimate death … . Miller-Albert v EmblemHealth, 2024 NY Slip Op 05340, Second Dept 10-30-24

Practice Point: In medical malpractice cases, at the summary judgment stage, the action survives or fails based upon the quality of the expert affidavits. Conclusory or speculative assertions in expert affidavits have no probative value.

 

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THE NEARLY THREE-YEAR GAP BETWEEN PLAINTIFF’S KNEE SURGERY AND HIS SEEING THE SURGEON TO COMPLAIN OF KNEE PAIN DID NOT PRECLUDE THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE TO TOLL THE STATUTE OF LIMITATIONS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact about whether the continuous treatment doctrine applies to render the action timely. Plaintiff had knee surgery and did not see the surgeon again for nearly three years when he experienced pain. He had not seen any other orthopedic surgeons in the interim:

Defendants fail to establish that plaintiff’s claims involving treatment of her right knee before May 21, 2016 are time-barred. Given the evidence of “an ongoing relationship of trust and confidence between the patient and physician,” the record presents disputed issues of fact regarding whether the continuous treatment doctrine applies, thus precluding dismissal at this stage of the litigation … . The 34-month gap between the one-year postoperative follow-up visit after plaintiff’s right total knee replacement and her next complaint to defendant Dr. Steven B. Haas, M.D. about pain in his right knee does not prevent application of the doctrine as a matter of law, as plaintiff visited no orthopedic surgeon other than defendant Dr. Haas during that period, and she returned to Dr. Haas to address increased pain in her right knee, which even he determined would require revision surgery. Karanevich-Dono v Haas, 2024 NY Slip Op 05137, First Dept 10-17-24

Practice Point: Plaintiff had knee surgery and did not see the surgeon again for nearly three years to complain of knee pain. Plaintiff did not see any other orthopedic surgeon in the interim. There was a question of fact whether the continuous treatment doctrine applied to render the medial malpractice action timely.

 

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