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“Error In Judgment” Jury Instruction Properly Given/Defense Verdict Not Against the Weight of the Evidence

In reversing Supreme Court, the Fourth Department determined the “error in judgment” jury instruction was properly given and the defense verdict should not have been set aside as against the weight of the evidence:

We conclude that the court erred in granting that part of plaintiffs’ motion to set aside the verdict in favor of Dr. LaRussa and Associates on the ground that it should not have given an error in judgment charge to the jury with respect to Dr. LaRussa’s alleged malpractice in failing to order and administer dual antibiotic prophylaxis for the cesarean section, and on the alternative ground that the verdict in favor of Dr. LaRussa was against the weight of the evidence. We therefore modify the order accordingly. Based upon Dr. LaRussa’s testimony that he exercised [*2]his professional judgment in choosing between acceptable alternatives, along with expert testimony that there were such acceptable alternatives, we conclude that the court properly gave an error in judgment charge … . There was also evidence that Dr. LaRussa considered and chose between medically acceptable treatment alternatives at plaintiff’s postoperative office visit, and thus the charge was also appropriately given with respect to his postoperative care of plaintiff … . Furthermore, we conclude that “the preponderance of the evidence in favor of plaintiff[s] is not so great that the verdict [finding that Dr. LaRussa was not negligent] could not have been reached upon any fair interpretation of the evidence” … . Beebe v St Joseph’s Hosp Health Ctr, 2014 NY Slip Op 06711, 4th Dept 10-3-14

 

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The Continuing Treatment Was Not Shown to Relate to the Condition Which Caused the Alleged Injury

The Second Department determined the plaintiffs failed to raise a question of fact about whether the continuing treatment doctrine tolled the statute of limitations.  The medical malpractice action was therefore time-barred:

To establish that the continuous treatment doctrine applies, a plaintiff is ” required to demonstrate that there was a course of treatment, that it was continuous, and that it was in respect to the same condition or complaint underlying the claim of malpractice'” . It is undisputed that the radiology defendants were monitoring the plaintiff Robert Ceglio (hereinafter Robert) for postsurgical changes after he had a pituitary tumor removed. The plaintiffs allege that Robert suffered injuries as a result of a colloid cyst, which the radiology defendants failed to notice on his MRI scans when they were monitoring him for postsurgical changes. However, the plaintiffs presented no evidence to suggest that the colloid cyst, which allegedly caused the injuries complained of, was in any way connected to the pituitary changes for which the radiology defendants were monitoring Robert. Consequently, the plaintiffs failed to raise a question of fact as to whether Robert received continuous treatment for the same condition underlying the claim of malpractice … . Ceglio v BAB Nuclear Radiology PC, 2014 NY Slip Op 06291, 2nd Dept 9-24-14

 

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Motion for Leave to File Late Notice of Claim Properly Denied—Injuries to Infant Plaintiff Consistent with Premature Birth

The First Department, over an extensive dissent, determined Supreme Court properly denied a motion for leave to file a late notice of claim in a medical malpractice action which alleged injuries to an infant born prematurely:

In this action for medical malpractice, in which the infant plaintiff seeks to recover for injuries he suffered after being born at 27 weeks’ gestation, the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff’s motion (General Municipal Law § 50-e[5]). The infant plaintiff’s mother’s excuses that she was unfamiliar with the requirement that she file a notice of claim, and that she was unaware that her son’s injuries were caused by defendant Health and Hospital Corporation’s (HHC) malpractice, are not reasonable. Nor is her attorney’s assertion that he waited to make the motion until approximately three years and ten months after filing the untimely notice of claim because he needed to receive the medical records from HHC … .

Further, the medical records demonstrate that the infant plaintiff’s condition and prognosis are consistent with his premature birth and do not suggest any injury attributable to the hospital staff’s malpractice … . Moreover, plaintiff failed to demonstrate that the medical records put HHC on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia or that he would subsequently develop other deficits, delays, and disorders … . Wally G v New York City Health & Hosps Corp, 2014 NY Slip Op 06241, 1st Dept 9-18-14

 

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Continuous Treatment Doctrine (Tolling the Statute of Limitations) Explained In Depth

The First Department, over a dissent, determined that the jury’s conclusion the statute of limitations was tolled under the continuous treatment doctrine should not be disturbed.  Plaintiff underwent Lasik surgery and complained of blurry vision and other complications in several follow up visits which ended in 2004.  Plaintiff commenced the lawsuit after a subsequent visit in 2007.  The question was whether the 2007 visit was related to the 2004 visits such that the continuous treatment doctrine applied.  The court discussed the doctrine in depth.  The court noted that the doctrine did not apply to plaintiff-wife’s derivative claims:

Plaintiff … asserts that the 2007 visit satisfied CPLR 214-a, because it was for the “same” condition as the 2004 visits, which was blurry vision in his left eye. He further argues that whether he and defendant agreed that he would seek further treatment after the May 2004 visit is irrelevant, because defendant “guaranteed” that the Lasik procedure would correct the blurry condition, and stated that he was plaintiff’s “doctor for life” for that purpose.

Although the CPLR defines “continuous” treatment as treatment “for the same illness, injury or condition” out of which the malpractice arose (CPLR 214-a [emphasis added]), the controlling case law holds only that the subsequent medical visits must “relate” to the original condition … . Here, plaintiff initially engaged defendant to correct his blurry vision, and the 2007 visit was motivated by continued blurriness in plaintiff’s eye, thus making the two visits “related” … . Devadas v Niksarli, 2014 NY Slip Op 06032, 1st Dept 9-4-14

 

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Plaintiff Should Have Been Allowed to Add Doctor to Medical Malpractice Action After the Statute of Limitations Had Run—All the Relation-Back Criteria Were Met

The Second Department, reversing Supreme Court, found that the relation-back doctrine allowed the addition of a doctor (Persky) to a malpractice action after the statute of limitations had run.  Several notes in decedent’s medical records were signed by the doctor and the decedent died soon after she was discharged from the hospital, which plaintiff alleged was premature.  The court explained the relevant law:

“The relation-back doctrine, which is codified in CPLR 203(b), allows a claim asserted against a defendant in an amended complaint to relate back to claims previously asserted against a codefendant for statute of limitations purposes where the two defendants are united in interest'” … . In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have know that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well … . “The linchpin’ of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … .

it was not reasonable for Persky to conclude that the plaintiff intended to proceed only against the defendants named in the original summons and complaint, especially since the decedent died soon after she was discharged from the hospital, and the complaint asserted specific allegations of negligence relating to the decedent’s premature hospital discharge … . In addition, contrary to the conclusion of the Supreme Court, the plaintiff demonstrated that the failure to originally name Persky as a defendant was the result of a mistake, and there was no need to show that such mistake was excusable … . Roseman v Baranowski, 2014 NY Slip Op 05635, 2nd Dept 8-6-14

 

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Question of Fact Whether Hospital Vicariously Liable for Actions of Non-Employees

The Third Department determined there was a question of fact whether defendant hospital could be held vicariously liable for the actions of nonemployee doctors with respect to plaintiff’s decedent who was initially treated in the emergency room.  The court explained the applicable law:

Under settled law, a hospital ordinarily may not be held liable for the negligent acts of treating physicians who are not hospital employees … . Vicarious liability for malpractice on the part of nonemployee physicians may be imposed, however, on a theory of ostensible or apparent agency … . “‘Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority’ to act on behalf of the principal” … . Consequently, “a hospital may [face vicarious liability] for the acts of independent physicians if the patient enters the hospital through the emergency room and seeks treatment from the hospital, not from a particular physician” … . Friedland v Vassar Bros Med Ctr, 2014 NY Slip Op 05388, 3rd Dept 7-17-14

 

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Party Moving for Summary Judgment May Not Submit Expert Affidavits With the Identity of the Expert Redacted

In the summary judgment context, the Third Department determined the moving party in a medical malpractice action, unlike the non-moving party, could not submit affidavits from experts with the names of the experts redacted:

In order to establish a prima facie entitlement to judgment as a matter of law, defendants were required to “tender[] sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact” … . Among other submissions, defendants provided an affidavit from a medical expert whose identity was redacted and who opined on the appropriateness of plaintiff’s medical care and the adequacy of the warnings given to plaintiff.efendants also submitted an unredacted version of the affidavit for Supreme Court’s in camera review. Because defendants were the movants for summary judgment, their submission of an anonymous expert affidavit was incompetent evidence not proper for consideration upon the motion … .

While the Legislature has allowed for some protection from disclosure of the identities of medical experts during “[t]rial preparation” (CPLR 3101 [d] [1] [i]), and, consistent with this intention, courts have found it appropriate to allow nonmovants in the summary judgment context to also withhold experts’ identities from their adversaries upon the reasoning that such parties did not choose to abandon the disclosure protections provided during trial preparation …, the Legislature has shown no broad intention of protecting experts from accountability at the point where their opinions are employed for the purpose of judicially resolving a case or a cause of action. Further, we see no compelling reason to allow for such anonymity that would outweigh the benefit that accountability provides in promoting candor … . Requiring a movant to reveal an expert’s identity in such circumstances would allow a nonmovant to meaningfully pursue information such as whether that expert has ever espoused a contradictory opinion, whether the individual is actually a recognized expert and whether that individual has been discredited in the relevant field prior to any possible resolution of the case on the motion … . Further, any expert who anticipates a future opportunity to espouse a contradictory opinion would be on notice that public record could be used to hold him or her to account for any unwarranted discrepancy between such opinions … . For these reasons, we will not consider the incompetent affidavit of defendants’ medical expert. Rivera v Albany Med Ctr Hosp, 2014 NY Slip Op 05236, 3rd Dept 7-10-14

 

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Resident Who Assisted Supervising Physician But Who Exercised No Independent Medical Judgment Entitled to Summary Judgment

The Fourth Department determined defendant should have been granted summary judgment in a medical malpractice action. Defendant was a resident who assisted the supervising physician (Dr. Hall).  The court determined defendant had demonstrated he exercised no independent medical judgment during the treatment of the plaintiff (David Green):

It is well settled that a “resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice so long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene” .. . Here, in support of his motion, defendant submitted evidence establishing that defendant Walter Hall, M.D., the supervising physician, conducted the initial meeting with plaintiff David Green, the patient. Defendant also submitted evidence establishing that Dr. Hall supervised defendant throughout all of the surgeries involved, reviewed all notes that defendant wrote, determined which surgical method would be used, decided to discontinue the first operation to obtain further information about the cyst or tumor that was to be excised, and decided to perform the subsequent operations. Furthermore, “[a]lthough the evidence demonstrated that [defendant] played an active role in [Dr. Hall’s] procedure, it did not demonstrate the exercise of independent medical judgment” by defendant … . Green v Hall, 2014 NY Slip Op 05084, 4th Dept 7-3-14

 

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Decedent’s Statements Admissible Evidence of Pain and Suffering/Damages for Loss of Household Services Explained

The Second Department, in a case where medical malpractice was conceded, determined certain statements made by the decedent were admissible as excited utterances or present sense impressions.  In addition, the damages related to economic loss where decedent was not employed outside the home and devoted 20 hours per week to the care of his disabled daughter were analyzed:

Contrary to the hospital’s contentions, admissible evidence established the decedent’s conscious pain and suffering during the days prior to his death and on the day of his death. The decedent’s statements to his wife … complaining of pain, discomfort, hunger, difficulty breathing, and feeling that he was dying, were excited utterances or present sense impressions, or both, and therefore admissible as exceptions to the hearsay rule “for the truth of the matters they assert[ed]” … . The present sense impressions were sufficiently corroborated … by the testimony of the decedent’s wife regarding the decedent’s appearance when she visited him, as well as the testimony of the plaintiffs’ medical experts based on the hospital records. * * *

We agree with the hospital that the plaintiffs failed to establish the decedent’s lost earnings, past or future. However, “[i]n the case of a decedent who was not a wage earner, pecuniary injuries’ may be calculated, in part, from the increased expenditures required to continue the services [he or she] provided, as well as the compensable losses of a personal nature, such as loss of guidance” … .

“[T]he standard by which to measure the value of past and future loss of household services is the cost of replacing the decedent’s services” … . Hyung Kee Lee v New York Hosp Queens, 2014 NY Slip Op 04171, 2nd Dept 6-11-14

 

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Question of Fact About Whether Order Given by Private Attending Physician and Carried Out by Hospital Employee Was Contraindicated—Therefore Hospital’s Motion to Dismiss Properly Denied

The Second Department noted that a hospital generally may not be held liable for the actions of a private attending physician (Simoncic) where the hospital employees merely carry out the orders of the private physician.  Here, however, there was evidence the attending physician’s order was contraindicated.  Therefore the hospital’s motion to dismiss was properly denied:

With regard to the Hospital’s potential liability, a hospital may not be held liable for injuries suffered by a patient who is under the care of a private attending physician chosen by the patient where the resident physicians and nurses employed by the hospital merely carry out the orders of the private attending physician, unless the hospital staff commits “independent acts of negligence or the attending physician’s orders are contraindicated by normal practice” (Cerny v Williams, 32 AD3d 881, 883; see Cham v St. Mary’s Hosp. of Brooklyn, 72 AD3d 1003, 1004).

Here, the Hospital established, prima facie, that Simoncic was a private attending physician, and that its employees did not commit independent acts of negligence and that Simoncic’s discharge order that [the patient] be given a prescription for Levaquin was not contraindicated by normal practice. However, in opposition, the plaintiff, through her opposing medical expert’s affirmation, raised a triable issue of fact as to whether the prescribing of Levaquin was contraindicated by normal practice … .

Accordingly, the Supreme Court correctly denied the Hospital’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Fink v DeAngelis, 2014 NY Slip Op 03648, 2nd Dept 5-21-14

 

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