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DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO MEET 60-DAY DEADLINE IMPOSED BY A LOCAL COURT RULE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATIONS, LACK OF INFORMED CONSENT DOES NOT APPLY TO FAILURE TO DIAGNOSE (FIRST DEPT).

The First Department, reversing Supreme Court, over an extensive dissent, determined Supreme Court should not have dismissed defendants’ motions for summary judgment in this medical malpractice. The motions were dismissed on procedural grounds because they were filed and served a few days after the 60-day deadline imposed by the local court rules. The courts had been closed when the papers were supposed to be filed due to a storm. The 2nd Department went on to determine the merits. Plaintiff had experienced headaches over a period of years and had sought treatment for them. Eventually a benign brain tumor was discovered. In removing the tumor plaintiff was rendered legally blind. The malpractice action alleged a negligent failure to diagnose the tumor, and lack of informed consent. The court held that the continuing treatment doctrine tolled the statute of limitations even though the treatment was for headaches, not the tumor, because the presence of the tumor had not been diagnosed. The court went on to find that the informed consent cause of action was not viable because the alleged malpractice was a failure to diagnose, not the negligent performance of a surgical procedure:

… [T]he record presents issues of fact as to continuous treatment. As is well established, “the continuous treatment doctrine tolls the Statute of Limitations for a medical malpractice action 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” … . In addition, “[w]here the malpractice claim is based on an alleged failure to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition” … . * * *

… [T]he informed consent claim lacks merit. As we have held, “[a] failure to diagnose cannot be the basis of a cause of action for lack of informed consent unless associated with a diagnostic procedure that involve[s] invasion or disruption of the integrity of the body'” … . Lewis v Rutkovsky, 2017 NY Slip Op 06342, First Dept 8-29-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO MEET 60-DAY DEADLINE IMPOSED BY A LOCAL COURT RULE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATION, LACK OF INFORMED CONSENT DOES NOT APPLY TO FAILURE TO DIAGNOSE (FIRST DEPT))/MEDICAL MALPRACTICE (DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO MEET 60-DAY DEADLINE IMPOSED BY A LOCAL COURT RULE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATION, LACK OF INFORMED CONSENT DOES NOT APPLY TO FAILURE TO DIAGNOSE (FIRST DEPT))/CONTINUOUS TREATMENT DOCTRINE  (MEDICAL MALPRACTICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO MEET 60-DAY DEADLINE IMPOSED BY A LOCAL COURT RULE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATION, LACK OF INFORMED CONSENT DOES NOT APPLY TO FAILURE TO DIAGNOSE (FIRST DEPT))/INFORMED CONSENT  (MEDICAL MALPRACTICE, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO MEET 60-DAY DEADLINE IMPOSED BY A LOCAL COURT RULE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATION, LACK OF INFORMED CONSENT DOES NOT APPLY TO FAILURE TO DIAGNOSE (FIRST DEPT))/CIVIL PROCEDURE (DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO MEET 60-DAY DEADLINE IMPOSED BY A LOCAL COURT RULE (FIRST DEPT))

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FAILURE TO PROVIDE WRITTEN POST-COLONOSCOPY INSTRUCTIONS AND FAILURE TO NOTIFY PLAINTIFF OF THE DISCOVERY OF A COLON PERFORATION CONSTITUTED SUFFICIENT EVIDENCE OF PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department determined defendant doctor’s (Aronoff’s) motion to set aside the verdict in this medical malpractice action was properly denied. Aronoff’s failure to provide plaintiff (Raymond) with written instructions and warning after the colonoscopy, and his failure to notify plaintiff after a colon perforation was discovered constituted sufficient evidence of proximate cause:

Establishing proximate cause in medical malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant’s departure was a substantial factor in causing the plaintiff’s injury … . “Generally, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause” … . ” A plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased [the] injury'” … .

Here, there was legally sufficient evidence to support the jury’s findings that Aronoff departed from accepted standards of medical practice in failing to provide Raymond with written post-colonoscopy instructions and failing to warn him as to the signs or symptoms of which he should be aware. Aronoff also failed to contact Raymond and instruct him to go to the hospital after Aro

noff had reviewed CT scan results that revealed a colon perforation. The evidence was legally sufficient to support the jury’s findings that these deviations proximately caused Raymond’s injuries … . Gaspard v Aronoff, 2017 NY Slip Op 06258, Second Dept 8-23-17

 

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QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT).

The Second Department determined defendants’ (Herman’s and Capuano’s) motions for summary judgment in this dental malpractice action were properly denied. With respect to the lack-of-informed consent cause of action, despite plaintiff’s signing of a consent form, the deposition testimony raised a question of fact whether plaintiff was properly informed before signing it:

“To establish a cause of action to recover damages for 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 actual procedure performed for which there was no informed consent was the proximate cause of the injury” … . “The mere fact that the plaintiff signed a consent form does not establish the defendants’ prima facie entitlement to judgment as a matter of law” … .

Here, both Herman and Capuano failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent. Although Herman and Capuano each submitted a consent form signed by the plaintiff for the respective procedures, they also submitted, in support of their respective motions, the plaintiff’s deposition testimony, which revealed factual disputes as to whether the plaintiff was properly advised before signing each of the forms … . Mathias v Capuano, 2017 NY Slip Op 06174, Second Dept 8-16-17

 

NEGLIGENCE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/MEDICAL MALPRACTICE (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/DENTAL MALPRACTICE (INFORMED CONSENT, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))/INFORMED CONSENT (DENTAL MALPRACTICE, QUESTION OF FACT WHETHER PLAINTIFF WAS PROPERLY INFORMED OF THE POTENTIAL COMPLICATIONS OF A DENTAL PROCEDURE, DESPITE PLAINTIFF’S SIGNING OF A CONSENT FORM (SECOND DEPT))

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DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined documents sought from a nursing home were not shielded from discovery by the Public Health Law. The documents concerned plaintiff’s decedent’s falls:

Public Health Law § 2805-j requires nursing homes, among other healthcare-related entities, to maintain a program for the identification and prevention of medical malpractice, including the establishment of a quality assurance committee which, among other things, is required to insure that information gathered pursuant to the program is utilized to review and to revise hospital policies and procedures. A New York State Department of Health regulation also requires nursing homes to establish and maintain a quality assessment and assurance program (see 10 NYCRR 415.27). Public Health Law § 2805-m and Education Law § 6527(3) both protect from disclosure documents created “by or at the behest of a quality assurance committee for quality assurance purposes” … . “It is the burden of the entity seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes” … . The party asserting the privilege ” is required at a minimum, to show that it has a review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that review procedure”‘… . Records that are duplicated or used by a quality assurance committee are not necessarily privileged … .

Here, in support of its cross motion for a protective order shielding the reports from disclosure, the Nursing Home submitted, among other things, the affidavit of its administrator, a privilege log, and, in camera, the three reports it was able to locate. Contrary to the determination of the Supreme Court, the Nursing Home’s showing was insufficient to demonstrate that the reports were generated by or at the behest of the Nursing Home’s Quality Assurance Committee. Robertson v Brookdale Hosp. Med. Ctr., 2017 NY Slip Op 06204, Second Dept 8-16-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PUBLIC HEALTH LAW, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/MEDICAL MALPRACTICE (PUBLIC HEALTH LAW, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/PRIVILEGE (PUBLIC HEALTH LAW,  DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, PRIVILEGE, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/NURSING HOMES (PUBLIC HEALTH LAW, PRIVILEGE,  DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))/QUALITY ASSURANCE (PUBLIC HEALTH LAW, MEDICAL MALPRACTICE, DOCUMENTS REGARDING PLAINTIFF’S DECEDENT’S FALLS IN DEFENDANT’S NURSING HOME WERE NOT PRIVILEGED UNDER THE PUBLIC HEALTH LAW (SECOND DEPT))

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INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF’S ACTION IS TIME-BARRED (SECOND DEPT).

The Second Department determined the medical malpractice (2 1/2 year) rather than the negligence (3 year) statute of limitations applied to this action stemming from the alleged failure to restrain a patient (plaintiff’s decedent) with dementia. The patient was injured when she fell. The court held the action was governed by the medical malpractice limitations period and was therefore untimely:

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“The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” … . Generally, a claim will be deemed to sound in medical malpractice “when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'” … . Thus, when the complaint challenges a medical facility’s performance of functions that are “an integral part of the process of rendering medical treatment” and diagnosis to a patient, such as taking a medical history and determining the need for restraints, the action sounds in medical malpractice… .

… The defendants’ evidence showed that on April 12, 2009, the plaintiff’s decedent, Ruby Bell (hereinafter the decedent), was admitted to New Island Hospital with a history of dementia, and placed on “Fall Prevention Protocol.” After the decedent was found standing at her bedside trying to remove her foley catheter, a physician ordered that she be restrained with a vest and wrist restraints. On the morning of April 18, 2009, the decedent was discovered sitting on the floor next to her bed. The bed’s side rails were up and the decedent was not aware of how she came to be on the floor. She had apparently fallen while trying to climb out of her bed. Thereafter, the decedent was diagnosed with a distal radius fracture of the right forearm. The plaintiff alleged that this incident arose out of the failure of the defendants’ staff to follow the physician’s order to restrain her … .

In opposition to the defendants’ prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contentions, the allegations at issue essentially challenged the defendants’ assessment of the decedent’s supervisory and treatment needs … . Bell v WSNCHS N., Inc., 2017 NY Slip Op 05937, 2nd Dept 8-2-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF’S ACTION IS TIME-BARRED (SECOND DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF’S ACTION IS TIME-BARRED (SECOND DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE, INJURIES STEMMING FROM FAILURE TO RESTRAIN A PATIENT WITH DEMENTIA FALL UNDER THE MEDICAL MALPRACTICE, NOT NEGLIGENCE, STATUTE OF LIMITATIONS, PLAINTIFF’S ACTION IS TIME-BARRED (SECOND DEPT))

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JUDGE’S INADEQUATE AND IMPROPER RESPONSE TO JURY QUESTIONS REQUIRED A NEW TRIAL IN THIS MEDICAL MALPRACTICE CASE, DEFENSE VERDICT REVERSED.

The Third Department, reversing the defense verdict in this medical malpractice trial, determined the judge’s response to jury questions was inadequate and improper. The judge did not respond at all to one question. And the judge’s response was different from the response discussed with counsel:

… [I]n addition to Supreme Court’s failure to respond in the manner it had discussed with counsel, the response given did not fully or adequately answer the multiple questions asked by the jury. Indeed, the jury note requested “a clear explanation of ‘care and treatment,'” and also asked whether “‘care and treatment’ include[d] paperwork/documentation & policy? Or only the physical ‘care & tx’ given?” Importantly, the question of whether “‘care and treatment’ include[d] paperwork/documentation & policy?” was written by the jury as a stand alone question. The jury’s multiple questions clearly demonstrated that the jurors were confused as to whether, and in what manner, they were permitted to consider the alleged lack of documentation in determining whether defendant deviated from the standard of care. By failing to provide clarification on this point and by stating, matter-of-factly, that care and treatment included only the physical treatment and care given, Supreme Court precluded the jury from fairly considering a critical issue presented at trial … . Meyer v Saint Francis Hosp., Poughkeepsie, N.Y., 2017 NY Slip Op 05286, 3rd Dept 6-28-17

 

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PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION.

The Third Department determined plaintiff’s expert did not raise a question of fact in this medical malpractice action.  Plaintiff injured her shoulder when she caught a patient (Lisa Clark) who started to fall as she was being transferred from a sideboard to a physical therapy bed. The action was deemed to sound in medical malpractice:

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The gravamen of plaintiff’s claim is that initiating a slide board transfer of Clark with minimal to moderate assistance deviated from the applicable standard of care, thereby causing Clark’s fall and plaintiff’s injuries. Defendants met their initial burden of establishing entitlement to judgment as a matter of law by submitting, among other things, an expert affidavit from a physical therapist opining that utilizing a slide board transfer with minimal assistance did not deviate from the accepted standard of care and noting, based on a review of Clark’s records, that Clark had successfully completed slide board transfers with minimal or moderate assistance on prior occasions … . Thus, “the burden shifted to plaintiff to present expert medical opinion evidence that there was a deviation from the accepted standard of care” … .

In opposition, plaintiff submitted, among other things, the affidavit of an orthopedic surgeon, Matthew J. Nofziger. Even assuming that Nofziger was qualified to provide an opinion with respect to the standard of care used in the physical therapy field for the purpose of assessing the appropriateness of transfer procedures … , we find his affidavit to be insufficient to raise a triable issue of fact. Although Nofziger criticized the assessment of Clark’s physical and cognitive abilities prior to the slide board transfer, he failed to identify or define the applicable standard of care appropriate in this case, merely asserting, in a conclusory manner, that Clark required a higher level of assistance than was provided to her … . Nor did Nofziger set forth any particular actions or procedures that could have prevented Clark from falling, thereby failing to establish the requisite nexus between the alleged malpractice and plaintiff’s injury … . Therefore, even if considered, Nofziger’s affidavit was patently insufficient to raise a triable issue of fact as to whether the transfer procedure used in this case deviated from the applicable standard of care … . Webb v Albany Med. Ctr., 2017 NY Slip Op 05146, 3rd Dept 6-22-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (EVIDENCE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/EXPERT OPINION (MEDICAL MALPRACTICE, LAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)

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PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED.

The Third Department, affirming Supreme Court, determined the medical malpractice action brought on behalf of a high school student who committed suicide was properly dismissed. The decision lays out in detail the actions of the defendants and the expert affidavits submitted to demonstrate the defendants did not deviate from an appropriate standard of care in assessing plaintiff’s decedent’s mental state or in releasing plaintiff’s decedent to his parents. The plaintiffs’ expert affidavit did not demonstrate any substantive deviation from appropriate care, or any expertise in emergency medicine. Shortly after release from defendants’ care, which related to drug abuse, not suicidal ideation, plaintiff’s decedent shot himself in the head:

The burden … shifted to plaintiffs to raise a triable issue of fact as to whether defendants departed from the accepted standard of care … . To that end, plaintiffs primarily relied on an affirmation of Igor Galynker, a psychiatrist, who opined that Duplan [the psychiatrist] departed from accepted practice in several ways, including by failing to personally evaluate decedent and failing to consider several factors that increased decedent’s risk for suicide. As to CMC [the emergency care provider], Galynker opined that it failed to establish procedures requiring Duplan to personally evaluate decedent and failed to create a “structured interview algorithm” for assessment of acute suicide risk, leading to serious errors on Beeby’s [the psychiatric nurse who interviewed plaintiff’s decedent] part. Yet, Galynker failed to provide any factual basis for his opinions … or point to any medical guidelines indicating that only a psychiatrist may conduct a mental health examination. Furthermore, Galynker’s assertion that Duplan had failed to consider several additional suicide risk factors is belied by Duplan’s testimony and the mental health evaluation, which reveal that Duplan was aware of and weighed such factors. Relatedly, Galynker never articulated how or why, if certain questions were asked or mnemonics/algorithms were used, material information would have been revealed that would have altered the medical decision rendered. Consequently, with regard to Duplan and CMC, Supreme Court properly found Galynker’s affirmation to be conclusory and lacking sufficient detail to raise a triable issue of fact … . With respect to Koch [the emergency medicine physician], Galynker opined that he deviated from accepted practice by, among other things, failing to discuss the case with Duplan and failing to consider the effects of decedent’s drug use. Notably, however, Galynker did not indicate that he had any training or expertise in the field of emergency medicine … . Therefore, plaintiffs’ medical malpractice and wrongful death causes of action were properly dismissed. Gallagher v Cayuga Med. Ctr. 2017 NY Slip Op 04941, 3rd Dept 6-15-17

NEGLIGENCE (PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/MEDICAL MALPRACTICE (SUICIDE, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT OPINION, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/EXPERT OPINION (MEDICAL MALPRACTICE,  PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY THE PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)/SUICIDE (MEDICAL MALPRACTICE, EXPERT OPINION, PLAINTIFF’S EXPERT DID NOT POINT TO ANY SUBSTANTIVE DEVIATION FROM A STANDARD OF APPROPRIATE CARE BY PSYCHIATRIC CARE-GIVERS, AND DID NOT DEMONSTRATE ANY EXPERTISE IN EMERGENCY MEDICINE, MEDICAL MALPRACTICE ACTION BASED UPON PLAINTIFF’S DECEDENT’S COMMITTING SUICIDE SHORTLY AFTER RELEASE FROM DEFENDANTS’ CARE PROPERLY DISMISSED)

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EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion by Justice Andrias, determined plaintiff’s expert affidavit was sufficient to raise a question of fact whether the school nurse’s failure to tell plaintiff to remove a contraceptive device (NuvaRing) was a proximate cause of blood clots which resulted in severe brain damage. The dissent argued plaintiff’s expert affidavit was conclusory and speculative, insufficient to defeat defendant’s expert’s opinion that removing the NuvaRing would not have prevented the blood clots which occurred seven days after plaintiff complained to the nurse practitioner about chest pains:

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Montefiore [the defendant which employed the nurse practitioner at the school clinic] made a prima facie case through its expert, Dr. Bardack, that it was not the proximate cause of plaintiff’s injuries … . In opposition, plaintiff’s expert raised an issue of fact concerning causation. We disagree with the dissent that the affidavit of Dr. Gold was speculative and conclusory. Dr. Gold specifically opined that if the nurse practitioner had properly assessed plaintiff, instructed her to remove the NuvaRing, and referred her for further assessment, plaintiff’s subsequent injuries and complications would have been avoided. Had the nurse properly assessed plaintiff as suffering from the symptoms of a blood clot, she could have instructed plaintiff to remove the ring immediately, thereby at least beginning to correct any clotting imbalance. As Montefiore’s expert acknowledges, “clot risk is gradually decreased after the ring is removed.” Thus, while the nurse was not in a position to treat clots, she certainly was in a position to make the diagnosis and to direct the plaintiff to remove the likely source of her symptoms, lessening the risk of an adverse outcome.

Montefiore asserts that even if the NuvaRing had been removed on June 1, thromboembolism was nonetheless likely to ensue, relying on FDA guidelines concerning presurgical protocols; Dr. Gold, however, opined that the risk of blood clotting would have subsided had the ring been removed. At this stage, plaintiff’s expert’s affidavit suffices to raise a factual issue as to the element of causation.

It may well be that the medical professionals who subsequently treated plaintiff are also at fault for failing to work her up for thromboembolism and failing to remove or direct her to remove the NuvaRing. Issues of relative culpability await resolution at trial. Plaintiff’s submissions raise an issue of fact as to the liability of the nurse practitioner sufficient to defeat summary judgment. Adams v Pilarte, 2017 NY Slip Op 04913, 1st Dept 6-15-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/MEDICAL MALPRACTICE (EXPERT OPINION, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/EXPERT OPINION (MEDICAL MALPRACTICE, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT OPINION, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/NUVARING (MEDICAL MALPRACTICE,  AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)

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SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE.

The Second Department, reversing Supreme Court, determined Supreme Court’s sua sponte ordering of a Frye hearing in this medical malpractice action was an impermissible avoidance of the law of the case doctrine. Another justice, in the same action, had denied the summary judgment motion brought by defendant doctor (Vartolomei). The Second Department held that Supreme Court’s ordering a Frye hearing and thereafter dismissing the complaint against Vartolomei was improper, as the hearing was used to rehear and grant the previously denied summary judgment motion:

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The general purpose of a Frye hearing is to determine whether an expert’s opinion is ” based on principles that are sufficiently established to have gained general acceptance as reliable'” … . Here, however, the overall nature of the questions posed at the hearing directed, sua sponte, by the Supreme Court, as well as statements by the court, establish that the true purpose of the hearing was not to determine whether Dr. Epstein’s opinions were based on principles that are sufficiently established to have gained general acceptance as reliable. Rather, the hearing purported to revisit the determination made in the order … denying Vartolomei’s motion for summary judgment insofar as asserted against her. In doing so, the court violated the doctrine of law of the case by completely disregarding the prior order, issued by a Justice of coordinate jurisdiction, that had concluded that triable issues of fact existed as to whether Vartolomei departed from accepted medical standards of care and whether such departures were a proximate cause of the injuries sustained by the decedent … .

Moreover, this Court has held that “[a] court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, there were no extraordinary circumstances warranting the sua sponte dismissal of the complaint insofar as asserted against Vartolomei. Aguilar v Feygin, 2017 NY Slip Op 04811, 2nd Dept 6-14-17

 

CIVIL PROCEDURE (LAW OF THE CASE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, LAW OF THE CASE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/MEDICAL MALPRACTICE (CIVIL PROCEDURE, FRYE HEARING, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/EVIDENCE (MEDICAL MALPRACTICE, FRYE HEARING,  SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/LAW OF THE CASE (MEDICAL MALPRACTICE, FRYE HEARING, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/FRYE HEARING (MEDICAL MALPRACTICE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/SUA SPONTE DISMISSAL OF COMPLAINT (MEDICAL MALPRACTICE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)

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