You are here: / Medical Malpractice
, , ,

SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS.

The Second Department, although agreeing with Supreme Court that aspects the damages award in this medical malpractice case were excessive, determined Supreme Court did not have the power to simply reduce the damages amounts. Rather, Supreme Court should have granted the motion to set aside the verdict and ordered a new trial unless the parties stipulate to the reduced damages:

… [I]t was procedurally improper for the Supreme Court to enter a judgment reducing the awards for future medical care, future medications, future physical and occupational therapy from age 21, future speech therapy from age 21, future medical equipment, future medical supplies, future loss of earning capacity, past pain and suffering, and future pain and suffering without granting a new trial on those issues unless the plaintiffs stipulated to reduce the verdict … . Reilly v St. Charles Hosp. & Rehabilitation Ctr., 2016 NY Slip Op 06485, 2nd Dept 10-5-16

CIVIL PROCEDURE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/NEGLIGENCE (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/MEDICAL MALPRACTICE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/DAMAGES (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/VERDICT, MOTION TO SET ASIDE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)

, , ,

EXPERT’S INABILITY TO QUANTIFY THE EXTENT TO WHICH DEFENDANTS’ CONDUCT DIMINISHED PLAINTIFF’S DECEDENT’S CHANCE OF A BETTER OUTCOME DID NOT JUSTIFY GRANTING DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW.

The Fourth Department, reversing Supreme Court, determined defendants’ motion for a judgment as a matter of law (on the issue of causation) should not have been granted. Plaintiff alleged the delay in diagnosing or failure to diagnose plaintiff’s decedent’s condition diminished plaintiff’s decedent’s chance of a better outcome. Plaintiff’s expert’s inability to quantify the extent to which defendants’ conduct diminished the chance of a better outcome did not render the proof insufficient:

In order to establish proximate causation, the plaintiff must demonstrate that the defendant’s deviation from the standard of care “was a substantial factor in bringing about the injury” (PJI 2:70…). Where, as here, the plaintiff alleges that the defendant negligently failed or delayed in diagnosing and treating a condition, a finding that the negligence was a proximate cause of an injury to the patient may be predicated on the theory that the defendant thereby “diminished [the patient’s] chance of a better outcome,” in this case, survival … . In that instance, the plaintiff must present evidence from which a rational jury could infer that there was a “substantial possibility” that the patient was denied a chance of the better outcome as a result of the defendant’s deviation from the standard of care … . However, “[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 [patient’s] chance of a better outcome . . . , as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the [patient’s] chance of a better outcome’ … . Clune v Moore, 2016 NY Slip Op 06331, 4th Dept 9-30-16

 

,

DEFENDANTS DID NOT DEMONSTRATE SURGICAL CONSENT FORM COMPLIED WITH THE ACCEPTED STANDARD OF DISCLOSURE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined defendants did not submit sufficient evidence to warrant dismissal of the “lack of informed consent” cause of action. Plaintiff alleged the breast implants she received were not of the type and size she requested . The proof submitted by the defendants did not demonstrate the consent form at issued complied with the standard for disclosure in this context:

Although the defendants demonstrated that they cannot be held liable for lack of informed consent based upon the size of the implants used, the defendants failed to establish that they cannot be held liable for lack of informed consent based on the type of implants used. The consent forms signed by the plaintiff stated that she would be receiving “gel” implants, but did not identify the particular brand or manufacturer of the implants. Although the defendants’ expert averred that the operative report indicated that “Palaia explained the risks, benefits and alternatives to [the plaintiff] prior to the procedure,” and noted that consent forms were signed, he failed to aver that “the consent form complied with the prevailing standard for such disclosures applicable to reasonable practitioners performing the same kind of surgery” … . Whitnum v Plastic & Reconstructive Surgery, P.C., 2016 NY Slip Op 05710, 2nd Dept 8-3-16

NEGLIGENCE (DEFENDANTS DID NOT DEMONSTRATE SURGICAL CONSENT FORM COMPLIED WITH THE ACCEPTED STANDARD OF DISCLOSURE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (DEFENDANTS DID NOT DEMONSTRATE SURGICAL CONSENT FORM COMPLIED WITH THE ACCEPTED STANDARD OF DISCLOSURE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/INFORMED CONSENT (MEDICAL MALPRACTICE, DEFENDANTS DID NOT DEMONSTRATE SURGICAL CONSENT FORM COMPLIED WITH THE ACCEPTED STANDARD OF DISCLOSURE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

,

ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED.

The Second Department, reversing the defense verdict, determined the trial court should not have given the jury the “error in judgment” charge in this medical malpractice action. Plaintiff alleged defendant negligently diagnosed a lump as benign without any further diagnostic tests. The “error in judgment” theory does not apply in that circumstance:

… Supreme Court erred in giving an “error in judgment” charge (PJI 2:150 ¶ 5) over the plaintiff’s objection. “That charge is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives” … . Contrary to the defendant’s contention, this case does not present a choice between one of two or more medically acceptable alternative treatments or techniques … . Rather, the defendant testified that he diagnosed the decedent, in January of 2002, with a benign condition “that was not urgent,” and he neither suspected cancer nor considered the option of sending the decedent for further diagnostic testing. Thus, the case presented the jury with the straightforward question of whether the defendant deviated from the applicable standard of care in diagnosing the decedent with a benign condition in January of 2002, and the “error in judgment” charge was not warranted … . Lacqua v Silich, 2016 NY Slip Op 05628, 2nd Dept 7-27-16

NEGLIGENCE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/MEDICAL MAPRACTICE ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/JURY CHARGE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)/ERROR IN JUDGMENT CHARGE (MEDICAL MALPRACTICE, ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED)

,

COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE.

The Third Department reversed the damages verdict in this medical malpractice action because of an erroneous comparative negligence jury instruction. Plaintiff, while at defendant hospital, has a seizure after he was given hot coffee. Plaintiff was burned when the coffee spilled on him. Although the comparative negligence instruction was appropriate with regard to whether plaintiff should have been given coffee, it was not appropriate with regard to the treatment for the burns:

A comparative negligence instruction is appropriate when there is evidence that a plaintiff may share responsibility for harm that was inflicted as a result of a defendant’s medical malpractice … . However, no comparative negligence instruction should be given when a plaintiff’s alleged negligence preceded the alleged medical malpractice and is not otherwise alleged to have contributed to the harm resulting from the malpractice. A plaintiff’s prior conduct “is not relevant, since the defendant’s liability extends only to that portion of [the plaintiff’s] injuries attributable to the defendant’s malpractice” … . Here, although there was evidence from which the jury could have found that plaintiff shared responsibility for the initial coffee spill, defendant made no claim at trial that plaintiff had any such shared responsibility for defendant’s subsequent deviations from the accepted standard of care in treating plaintiff’s injuries, nor was there any evidence adduced at trial from which the jury could have found that plaintiff shared such responsibility … . Vallone v Saratoga Hosp., 2016 NY Slip Op 05526, 3rd Dept 7-14-16

NEGLIGENCE (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/MEDICAL MALPRACTICE (COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/COMPARATIVE NEGLIGENCE (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)/JURY INSTRUCTION (MEDICAL MALPRACTICE, COMPARATIVE NEGLIGENCE JURY INSTRUCTION SHOULD NOT HAVE BEEN GIVEN BECAUSE PLAINTIFF’S ALLEGED NEGLIGENCE OCCURRED PRIOR TO THE ALLEGED MEDICAL MALPRACTICE)

, ,

EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined evidence of a consent order, in which defendant physician acknowledged a negligent failure to adequately monitor a dozen patients for whom he prescribed medication, should not have been admitted in evidence. The essence of the malpractice claim was defendant’s continued prescription of an anti-depressant for plaintiff’s decedent over a ten-year period, without seeing plaintiff’s decedent in his office, proximately caused plaintiff’s decedent’s suicide:

The record establishes that the Consent Order was neither probative of defendant’s negligence or the question of proximate cause. As part of the Consent Order defendant agreed not to contest negligent treatment of certain anonymous patients, none of whom was the decedent. As such, defendant preserved his objections to factual allegations related to decedent and any charges of misconduct based on those allegations. Since the Consent Order did not establish facts concerning defendant’s treatment of decedent, it was not probative as to that issue. In any event, given defendant’s pre-trial concession that he deviated from accepted medical practice, the issue of negligent treatment did not require resolution by the jury.

Further, any possible relevance of the Consent Order’s contents was outweighed by the obvious undue prejudice of his repeated violations of accepted medical standards … . The Consent Order was nothing more than evidence of unrelated bad acts, the type of propensity evidence that lacks probative value concerning any material factual issue, and has the potential to induce the jury to decide the case based on evidence of defendant’s character … . Mazella v Beals, 2016 NY Slip Op 05182, CtApp 6-30-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)/EVIDENCE (MEDICAL MALPRACTICE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)/MEDICAL MALPRACTICE (EVIDENCE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)/PRIOR BAD ACTS (MEDICAL MALPRACTICE, EVIDENCE OF PRIOR BAD ACTS BY DEFENDANT PHYSICIAN SHOULD NOT HAVE BEEN ADMITTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S VERDICT REVERSED)

,

QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINE TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED.

The Fourth Department, over a dissent, determined plaintiff raised a question of fact whether the 2 1/2 year statute of limitations was tolled by the continuous treatment doctrine, despite gaps in treatment exceeding the statute of limitations:

The determination whether continuous treatment exists “must focus on the patient” … and, “[i]n determining whether plaintiff[] raised an issue of fact concerning the applicability of the continuous treatment doctrine, [her] version of the facts must be accepted as true” … . Based on plaintiff’s version of the facts, there is support in the record for a finding that plaintiff “intended uninterrupted reliance” upon defendant’s observation, directions, concern, and responsibility for overseeing her progress. Notably, during approximately 7 years of treatment with defendant, plaintiff underwent two surgeries, saw no other physician regarding her shoulder, and returned to him for further treatment, i.e., a potential third surgery, but was told that he did not treat or operate on shoulders anymore. Defendant referred plaintiff to another physician in his practice, and plaintiff went to that appointment, but was told that the second physician would not treat her. Furthermore, the fact that plaintiff left the September 5, 2003 appointment with a direction to see defendant “as needed” is not dispositive inasmuch as defendant conceded that “[o]bviously [plaintiff’s] problem is long standing and chronic. She most likely will need further surgery in the future due to her young age and need for revision shoulder replacement vs fusions.” Lohnas v Luzi, 2016 NY Slip Op 04819, 4th Dept 6-17-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/MEDICAL MALPRACTICE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/CONTINUOUS TREATMENT DOCTRINE (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)/STATUTE OF LIMITATIONS (QUESTION OF FACT WHETHER CONTINUOUS TREATMENT DOCTRINED TOLLED THE STATUTE OF LIMITATIONS, CRITERIA EXPLAINED)

,

PHYSICIAN’S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM.

The Second Department determined the actions against two physicians tasked with reading plaintiff's spinal MRI should have been dismissed. There was unrefuted evidence the MRI's were read correctly and the doctors' duties did not extend beyond the interpretation of the MRI:

“Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient” … .

Here, both West and Davis established, prima facie, that they discharged their respective duties to the injured plaintiff in accordance with accepted practices. West's expert concluded that West's interpretation of the … MRI film was correct, and in accordance with accepted practices. The plaintiffs' expert did not dispute this conclusion, but instead opined that West should have ordered a diffusion MRI to look for evidence of the injured plaintiff's condition. However, as West correctly contends, he had no such duty to do so. West's role was to interpret the MRI film and document his findings. He did not assume a general duty of care to independently diagnose the injured plaintiff's medical condition … .

Similarly, the plaintiffs' argument that Davis had a duty to examine the injured plaintiff in person and to ensure that high-dose steroids were properly administered also is without merit. Davis's duty as a neurosurgical consultant was to determine whether neurosurgery was necessary. He determined that it was not. His expert stated that this conclusion was correct, and in accordance with accepted practices. The plaintiffs' expert did not dispute this conclusion, and did not argue that neurosurgery was necessary. Meade v Yland, 2016 NY Slip Op 04697, 2nd Dept 6-15-16

NEGLIGENCE (PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)/MEDICAL MALPRACTICE (PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)/DUTY OF CARE (PHYSICIANS, PHYSICIAN'S DUTY EXTENDS ONLY TO THE TASK ASSIGNED, HERE THE INTERPRETATION OF MRI FILM)

,

QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY.

The Second Department determined plaintiffs raised a question of fact in this medical malpractice action under the doctrine of res ipsa loquitur. Plaintiff contracted hepatitis C after a colonoscopy. There was evidence the patient defendant performed the procedure upon just before plaintiff’s procedure had hepatitis C, the disease is only transferred by contact with infected blood, and plaintiff was diagnosed after six weeks, the usual incubation period:

… [P]laintiffs relied on the doctrine of res ipsa loquitur, which is available when (1) the event is of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) the event is caused by an agent or instrumentality within the exclusive control of the defendant; and (3) the event was not caused by any voluntary action or contribution on the part of the plaintiff … . “To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by defendant’s negligence. Stated otherwise, all that is required is that the likelihood of other possible causes of the injury be so reduced that the greater probability lies at defendant’s door” … . Gonzalez v Arya, 2016 NY Slip Op 04693, 2nd Dept 6-15-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)/MEDICAL MALPRACTICE (RES IPSA LOQUITUR, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)/RES IPSA LOQUITUR (MEDICAL MALPRACTICE, QUESTION OF FACT RAISED UNDER DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF CONTRACTED HEPATITIS C AFTER COLONOSCOPY)

,

MEDICAL RECORDS DOCUMENTING THE MEDICAL CARE DID NOT DEMONSTRATE THE HOSPITAL HAD TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM; MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a three-judge dissenting opinion, determined plaintiff's motion for leave to serve a late notice of claim was properly denied. Plaintiff alleged medical malpractice on the part of defendant New York City Health and Hospitals Corporation (HHC). The majority concluded that the mere existence of medical records documenting the hospital care did not demonstrate timely knowledge of the nature of the claim:

… [T]he medical records must do more than “suggest” that an injury occurred as a result of malpractice. [The plaintiff's] argument implies that so long as medical experts reasonably disagree as to whether, based on their respective interpretations of the medical records, the medical staff deviated from the standard of care, a factual question is present and an application for service of late notice must be granted as a matter of law. … [T]he medical records must “evince that the medical staff, by its acts or omissions, inflicted an[] injury on plaintiff . . .” in order for the medical provider to have actual knowledge of the essential facts … . Wally G. v New York City Health & Hosps. Corp. (Metropolitan Hosp.), 2016 NY Slip Op 04443, CtApp 6-9-16

MUNICIPAL LAW (NOTICE OF CLAIM, MEDICAL RECORDS DOCUMENTING THE MEDICAL CARE DID NOT DEMOSTRATE THE HOSPITAL HAD TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM; MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED)/NOTICE OF CLAIM (MEDICAL MALPRACTICE CLAIM AGAINST CITY HOSPITAL, MEDICAL RECORDS DOCUMENTING THE MEDICAL CARE DID NOT DEMOSTRATE THE HOSPITAL HAD TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM; MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED)/MEDICAL MALPRACTICE (CLAIM AGAINST CITY HOSPITAL, MEDICAL RECORDS DOCUMENTING THE MEDICAL CARE DID NOT DEMOSTRATE THE HOSPITAL HAD TIMELY NOTICE OF THE NATURE OF THE MEDICAL MALPRACTICE CLAIM; MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy