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Although the Doctor Was Employed by the Hospital, His Employment Did Not Encompass His Medical Practice—Therefore the Hospital Was Not Liable for the Doctor’s Medical Malpractice Under the Doctrine of Respondeat Superior/$6.8 Million Verdict Against the Doctors Based Upon a Delay in Diagnosing Cancer Should Not Have Been Set Aside

The Second Department determined Supreme Court properly dismissed the complaint against the hospital in a medical malpractice case, but improperly set aside the $6.8 million verdict against the doctors.  Plaintiff alleged the doctors caused a 13-month delay in the diagnosis of cancer, which required her to have extensive surgery and reduced her chance of survival.  The suit against the hospital was based upon respondeat superior. However the employment contract between the doctor, Aloia, and the hospital related to duties other than Aloia’s treatment of patients.  Therefore the complaint against the hospital was properly dismissed after trial pursuant to CPLR 4401. The Second Department determined there was sufficient evidence to support plaintiff’s allegations and, therefore, the verdict against the doctors should stand.  “…[T]here was a valid line of reasoning and permissible inferences from which the jury could have rationally concluded that the physician defendants departed from good and accepted medical practice, and that the delay in diagnosing the injured plaintiff’s cancer proximately caused her to have a worsened prognosis or decreased 10-year survival rate:”

To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that, upon viewing the evidence in the light most favorable to the plaintiff, there is no rational basis by which the jury could find for the plaintiff against the moving defendant” … . “The doctrine of respondeat superior renders an employer vicariously liable for a tort committed by an employee while acting within the scope of employment. The general rule is that an employee acts within the scope of his employment when he is acting in furtherance of the duties owed to the employer and where the employer is or could be exercising some degree of control, directly or indirectly, over the employee’s activities” … . Although the issue is usually a factual issue for the jury, “[w]here the proof on the issue of control presents no conflict in evidence or is undisputed, the matter may properly be determined as a matter of law” … .

Here, there was no real dispute as to the employment arrangement between Aloia and [the hospital] as set forth in the clear and unambiguous employment contract … . Aloia’s employment contract permitted him to maintain his private practice in endocrinology, as well as internal medicine and bone densitometry, outside of his employment with [the hospital]. * * *

“A motion for judgment as a matter of law pursuant to CPLR . . . 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party” … . “In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant'” … . Luna v Spadafora, 2015 NY Slip Op 03134, 2nd Dept 4-15-15

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Plaintiff Was Properly Allowed to File a Late Notice of Claim—Criteria Explained

The Second Department determined plaintiff was properly allowed to file a late notice of claim in a medical malpractice action.  Plaintiff’s baby died in utero days after the plaintiff had gone to the hospital complaining of decreased fetal movement and was assured all was well. Plaintiff asked the hospital repeatedly for the autopsy report, beginning shortly after the baby died. The autopsy report was finally provided many months later.  Within a few days of receiving the autopsy report, the plaintiff sought permission to file a late notice of claim. The Second Department noted that the hospital had acquired actual notice of the substance of the claim within 90 days (demonstrated by the medical records), plaintiff’s inability to gain access to the autopsy report was a reasonable excuse for the delay, and the hospital was not prejudiced by the six-month delay because witnesses remained available and there was no showing memories had faded:

In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits (see General Municipal Law § 50-e[5]..). “While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance” … . “A petition for leave to serve a late notice of claim is addressed to the sound discretion of the court” … . * * *

…[T]he petitioner made a sufficient showing that HHC had actual knowledge of the essential facts constituting her claims within 90 days of accrual or within a reasonable time thereafter. “In medical malpractice cases, when the medical records themselves contain facts that detail both the procedures used and the claimant’s injuries, and suggest that the relevant public corporation may be responsible for those injuries, the public corporation will be held to have had actual knowledge of the essential facts constituting the claim” … . The Supreme Court noted that the petition would have been stronger had she submitted an expert affirmation in support of it, but the court nonetheless concluded that the basic facts underlying the malpractice claims could be gleaned from the petitioner’s medical records. We agree. Matter of Rojas v New York City Health & Hosps. Corp., 2015 NY Slip Op 02975, 2nd Dept 4-8-15

 

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Plaintiff Properly Relied on the Doctrine of Res Ipsa Loquitur to Survive Summary Judgment

The Third Department determined plaintiff had raised a question of fact under the doctrine of res ipsa loquitur.  After shoulder surgery plaintiff experienced numbness and was unable to flex his index finger and thumb.  There was general agreement the injury was the result of specified nerve damage but either the anesthesia-procedure or the surgery could have caused it. The Third Department noted that plaintiff’s expert could not be deemed unqualified as to one of treating physicians simply because he was not a specialist in the same field as that treating physician:

“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 loquitor 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 [and] [t]hat rule is particularly appropriate in a medical malpractice case . . . in which the plaintiff has been anesthetized” … . Elements of res ipsa loquitur are: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Frank v Smith, 2015 NY Slip Op 02827, 3rd Dept 4-2-15

 

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Plaintiff’s Allegations of Injuries in the Bill of Particulars Were Not So Broad as to Constitute a Waiver of the Physician-Patient Privilege for Plaintiff’s Entire Medical History

The Fourth Department determined plaintiff’s allegations of injuries in the bill of particulars was not so broad as to place plaintiff’s entire medical history in controversy:

In bringing the action, plaintiff waived the physician/patient privilege only with respect to the physical and mental conditions affirmatively placed in controversy” … . Indeed, that waiver ” does not permit wholesale discovery of information regarding [plaintiff’s] physical and mental condition’ ” … . Contrary to defendants’ contention, the allegations in the bill of particulars that plaintiff sustained “serious and permanent injuries, including: toxic keratitis; bilateral corneal abrasions; severe bilateral photophobia; impaired vision; decrease in vision; need for corneal transplants; loss of enjoyment of life; disability; and pain and suffering” “do not constitute such broad allegations of injury’ that they place plaintiff’s entire medical history in controversy” … . The court properly conducted an in camera review to redact irrelevant information …, and properly limited disclosure to the “conditions affirmatively placed in controversy” … . Reading v Fabiano, 2015 NY Slip Op 02634, 4th Dept 3-27-15

 

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Questions of Fact Raised Whether Plaintiff’s Infant-Daughter’s Physical and Mental Deficiencies Were Caused by Inadequate Medical Treatment Prior to and During Birth, Despite Indications Plaintiff’s Daughter Was Born Healthy

The First Department, in a full-fledged opinion by Justice Acosta, reversed Supreme Court and denied defendant’s motion for summary judgment in a medical malpractice case.  The First Department laid out in great detail the plaintiff-mother’s experts’ opinions about the causes of the her infant-daughter’s (Kailen’s) mental and physical deficiencies and determined questions of fact had been raised about the adequacy of medical treatment prior to and during Kailen’s birth, in spite of indications of Kailen’s good health at the time of birth:

A defendant in a medical malpractice action establishes prima facie entitlement to summary judgment by showing that in treating the plaintiff, he or she did not depart from good and accepted medical practice, or that any such departure was not a proximate cause of the plaintiff’s alleged injuries … . Once a defendant meets that burden, the plaintiff must rebut the prima facie showing via medical evidence attesting that the defendant departed from accepted medical practice and that such departure was a proximate cause of the injuries alleged … .

Generally, “the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants” … . To defeat summary judgment, the expert’s opinion “must demonstrate the requisite nexus between the malpractice allegedly committed’ and the harm suffered” … .

Here, in opposition to defendant’s motion for summary judgment, plaintiff raised triable issues of fact as to both departure from good and accepted medical practice and causation. * * *

Contrary to defendant’s assertion, plaintiff’s medical evidence was sufficient to defeat summary dismissal of the complaint. Defendant’s argument that plaintiff’s experts failed to rebut its contention that, in the absence of any signs or symptoms of permanent neurological injury at or near the time of Kailen’s birth, there is no medical basis for connecting her current condition with the “circumstances of the labor and delivery,” is unavailing. Dr. Adler’s assertions that brain injuries at the time of birth can be diagnosed based on observations over time contradict defendant’s contention. In addition, a report prepared by Dr. Joseph Carfi, dated March 21, 2012, based on his physical examination of Kailen, and medical records, including those from defendant and the Center for Congenital Disorders, notes that Kailen was diagnosed at the Center for Congenital Disorders on May 23, 1996, when she was five months old, with microcephaly, and mild developmental delay. By 2012, she suffered significant mental retardation with developmental delays and lack of age appropriate personal independence. Her impairments are permanent and preclude her from living alone as an adult. Thus, although Kailen had excellent Apgar scores and otherwise appeared normal at birth, plaintiff nonetheless raised triable issues of fact as to causation … . Anyie B. v Bronx Lebanon Hosp., 2015 NY Slip Op 02576. 1st Dept 3-26-15

 

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The Jury Should Have Been Instructed on the Res Ipsa Loquitur Doctrine—Infection Developed After Injection

The Second Department determined plaintiff’s motion to set aside the verdict should have been granted because the jury should have been instructed on the res ipsa loquitur doctrine.  Plaintiff developed an infection after a cortisone injection.  There was expert testimony that such an infection would not develop if standard procedures had been followed:

Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event (see Restatement [Second] of Torts § 328D). “Res ipsa loquitur, a doctrine of ancient origin …, derives from the understanding that some events ordinarily do not occur in the absence of negligence” … . “In addition to this first prerequisite, plaintiff must establish, second, that the injury was caused by an agent or instrumentality within the exclusive control of defendant and, third, that no act or negligence on the plaintiff’s part contributed to the happening of the event … . Once plaintiff satisfies the burden of proof on these three elements, the res ipsa loquitur doctrine permits the jury to infer negligence from the mere fact of the occurrence” … . Moreover, “expert testimony may be properly used to help the jury bridge the gap’ between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians, which does .. .

Here, the plaintiff presented expert testimony that a MRSA infection from an injection does not occur if the podiatrist adheres to the accepted standard of care. Bernard v Bernstein, 2015 NY Slip Op 02084, 2nd Dept 3-18-15

 

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Discovery of Name and Address of Nonparty Patient Alleged to Have Witnessed Negligence or Malpractice Prohibited Because Such Disclosure Would Reveal Privileged Information Re: the Nonparty Patient’s Diagnosis and Treatment (by Virtue of the Unit in Which the Nonparty Patient and Plaintiff’s Decedent Were Housed)

The Second Department determined plaintiff was not entitled to the name of a psychiatric patient who was a roommate of plaintiff’s decedent.  Generally, the name and address of a nonparty patient who is alleged to have observed negligence or malpractice are discoverable.  But CPLR 4505(a) prohibits revealing the nonparty patient’s name and address when, as here, the information will reveal privileged information concerning the nonparty patient’s diagnosis and treatment:

“As a general rule, disclosure of the name and address of a nonparty patient who may have been a witness to an alleged act of negligence or malpractice does not violate the patient’s privilege of confidentiality of treatment” … . However, where it is not possible to comply with a demand for the name and address of a patient without disclosing privileged information concerning diagnosis and treatment, discovery is prohibited pursuant to CPLR 4504(a) … .

Contrary to the plaintiff’s contention, the Supreme Court properly concluded that [*2]discovery of the decedent’s hospital roommate’s identifying information was prohibited under CPLR 4504(a). The decedent was housed in a unit of the [hospital] that was designated for patients ages 12 to 15 years old who suffered from certain psychiatric disorders. Since the roommate’s location in that unit of the Holliswood Hospital would, by simple deduction, reveal her medical status, disclosure was prohibited … . Kneisel v QPH Inc, 2015 NY Slip Op 00503, 2nd Dept 1-21-15

 

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Defendant-Doctor’s Failure to Mention He Was Under a Stayed License-Suspension In His Affidavit In Support of His Motion for Summary Judgment Was One Factor In Finding the Affidavit Insufficient to Meet Defendant’s Burden on the Motion

The Third Department determined defendant’s motion for summary judgment in a medical malpractice action was properly denied on several grounds.  The court noted that it was troubled that the defendant doctor’s (Stanger’s) license was under a stayed suspension at the time he wrote his affidavit in support of the summary judgment motion, and he failed to mention the stayed suspension in his affidavit.  For that reason, among others, the court deemed the affidavit an insufficient basis for summary judgment:

…[W]e nonetheless are … by the fact that Stanger failed to disclose the status of his medical license when he prepared his affidavit in support of defendants’ motions for summary judgment. The very first paragraph of Stanger’s affidavit recites, “I am a physician duly licensed to practice in the State of New York.” Noticeably absent from both that opening paragraph and Stanger’s affidavit as a whole is any mention of the fact that, only two months earlier, a one-year stayed suspension of his medical license had been imposed and that he was practicing medicine subject to certain terms of probation. This glaring omission is entirely inconsistent with Stanger’s ethical obligations as a practicing physician and, in our view, [*4]seriously calls into question the medical opinion he has rendered regarding his diagnosis, care and treatment of decedent. Additionally, further review of Stanger’s affidavit reveals that the opinion set forth therein was “[b]ased on [Stanger’s] review of the [medical] records in this matter, as well as [his] personal recollection of the care and treatment rendered to [decedent].” In this regard, Stanger acknowledged that he did not complete his charting of decedent’s January 29, 2009 hospital visit until after he (1) learned that decedent had returned to the emergency department the following day, (2) was advised that decedent had died, and (3) had been questioned by another physician regarding the care and treatment he had provided to decedent the previous day. Under these circumstances, we do not find Stanger’s affidavit to be sufficient to satisfy defendants’ initial burden on the motions for summary judgment, thereby warranting the denial thereof. Howard v Stanger, 2014 NY Slip Op 08088, 3rd Dept 11-20-14

 

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Infant’s Injury Not Apparent for Several Months—Application to File Late Notice of Claim Properly Granted

The First Department affirmed Supreme Court’s grant of an application to file a late notice of claim.  The injury did not become apparent until several months after the infant plaintiff was born, and all the other criteria for allowing a late notice of claim were met:

…[T]he mother’s assertion that she waited to file a notice of claim because she did not know until several months after the child was born that he was injured is a reasonable excuse for the delay in moving to file a late notice of claim … . Moreover, respondent’s experts have not disputed the assertion made by claimant’s experts that periventricular leukomalacia (PVL), the injury alleged here, does not generally manifest itself until the infant fails to meet his developmental milestones, which in this case was approximately six months after the injury was inflicted, and that a layperson, such as the child’s mother, would be unable to tell that he was injured … .

Claimant has demonstrated that respondent acquired actual knowledge of the facts surrounding the instant claim within 90 days or a reasonable time thereafter, because the expert affidavits of Dr. Richman and Dr. Singh establish that the records, on their face, evinced respondent’s failure to provide the mother with proper labor and delivery care … . * * *

Respondent will not be unduly prejudiced by being compelled to defend this case, because it had actual notice of the underlying facts of the infant plaintiff’s claim within a reasonable time after his birth, and the hospital has been in possession of the records since the alleged malpractice. Matter of Kellel B v New York City Health & Hosps Corp, 2014 NY Slip Op 07963, 1st Dept 11-18-14

 

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Damages in Medical Malpractice Case Paid by Insurer and Hospital—Therefore Doctor, a Defendant in the Medical Malpractice Case, Could Show No Pecuniary Loss—Legal Malpractice Suit by Doctor Must Therefore Be Dismissed

The Third Department determined that because the damages assessed against a doctor in a medical malpractice action were paid entirely by the insurer and the hospital, she suffered no pecuniary loss.  In the absence of pecuniary loss, she could not maintain a legal malpractice action against her attorneys:

Elements that plaintiff must prove in a legal malpractice action include that her attorney was negligent, she would have succeeded on the merits “but for” her attorney’s negligence and she sustained actual and ascertainable damages … . * * *

Considering first the element of damages, the undisputed proof established that plaintiff did not have to pay any part of the verdict, which was covered in full by the insurer and hospital. Plaintiff’s contention that she sustained non-pecuniary damages, such as a taint on her reputation resulting from media and other coverage of the … verdict, is unavailing since “the established rule limit[s] recovery in legal malpractice actions to pecuniary damages” … . Plaintiff continued working at the hospital after the … verdict and, as her contract was coming to an end about a year later, plaintiff was offered a new contract. … Although plaintiff did not like some of the changes in the terms of the new contract, those same terms were also made mandatory for other physicians and plaintiff was not singled out in such regard because of the … verdict. Defendant produced proof that plaintiff took the position during contract negotiations that she desired to significantly scale back or eliminate the obstetrics part of her practice at the hospital, a move that was opposed by the hospital’s other physicians. Plaintiff eventually elected to resign from the hospital rather than renew her contract. Her arguments that her difficulty in obtaining employment with comparable compensation and that subsequent potential increases in her malpractice premiums resulted directly from the … verdict are speculative and unsupported in this record … . Kaufman v Medical Liab Mut Ins Co, 2014 NY Slip Op 07398, 3rd Dept 10-30-14

 

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