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Plaintiff Injured Falling Off Operating Table—Record Insufficient to Determine Whether Action Sounded in Medical Malpractice (Rendering It Untimely) or Negligence (Rendering It Timely)

The Third Department determined there was insufficient information in the record to determine whether plaintiff’s action sounded in negligence or medical malpractice.  Plaintiff was injured when she fell off the operating table.  The case hinged on whether the 2 1/2 year medical malpractice of the 3 year negligence statute of limitations applied. Supreme Court determined the medical malpractice statute applied and dismissed the complaint. The Third Department sent the matter back for the service of an amended complaint:

The sole issue here is whether the complaint sounds in medical malpractice such that it is subject to a 2½-year statute of limitations, which would make it untimely, or whether it alleges personal injury claims based on ordinary negligence that are subject to a three-year statute of limitations (compare CPLR 214-a, with CPLR 214 [5]). “Conduct may be deemed malpractice, rather than negligence, when it ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician'” … .

The record here does not contain enough factual information to make such a determination. The complaint contains some language that generally refers to malpractice, such as that the “action arose from a surgery,” that plaintiff was “owed a duty by [d]efendants to use the due care of medical specialists in performing” the surgery, and that plaintiff fell after she “was extubated by the [a]nesthesiologist” or “while extubated by” him. While some of the medical records also indicate that plaintiff’s fall from the operating table may have been substantially related to the rendition of medical treatment, one medical note indicates that plaintiff rolled off the table due to the failure to remove an obstruction that prevented a stretcher from being placed next to the operating table. Plaintiff’s causes of action would sound in medical malpractice if she fell off the table due to improper pressure or movement in the removal of the breathing tube, or the failure to properly evaluate her safety and restraint needs while she was under anesthesia … .

On the other hand, her causes of action would sound in ordinary negligence if she never received any safety assessment, if the hospital staff failed to remove an obstruction between the operating table and stretcher and allowed her to fall between them, or if she was simply dropped by the staff members when they were transferring her from the operating table to the stretcher … . Newell v Ellis Hosp, 2014 NY Slip Op 02992, 3rd Dept 5-1-14

 

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Res Ipsa Loquitur Doctrine Raised Question of Fact About Whether Anesthesiologist, Who Was Alone With the Unconscious Decedent at the Time of Death, Was Negligent

The Third Department noted that the doctrine of res ipsa loquitur raised a question of fact about whether an anesthesiologist (Waid) was negligent:

…[P]laintiff submitted a detailed expert affidavit … . The expert opined that Waid, through overinflation or improper insertion of the endotracheal tube, caused the hemorrhage that immediately led to decedent’s death. Although the exact source of bleeding was never identified, the expert explained possible ways that Waid may have caused the hemorrhage and stated that such bleeding does not ordinarily occur in the absence of negligence, Waid had exclusive control over decedent’s body and the medical instrumentalities at the time, and decedent was unconscious so he could not have contributed to the situation. Therefore, questions of fact exist and plaintiff may rely on the doctrine of res ipsa loquitur to attempt to establish Waid’s negligence… .  Cole v Champlain Val Physicians’ Hosp Med Ctr, 2014 NY Slip Op 02654, 3rd Dept 4-17-14

 

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Conclusory and Unsupported Affidavit from Plaintiff’s Expert Did Not Raise a Question of Fact/Standard of Care for Doctors and Mental Health Professionals In the Context of a Patient’s Post-Treatment Suicide Described

The First Department, in a full-fledged opinion by Justice Sweeny, reversed Supreme Court and granted the defendants’ motion for summary judgment dismissing the action.  The complaint alleged that plaintiff’s husband’s suicide was the result of negligence on the part of the treating doctors, psychiatrists and other health professionals.  The court noted that in most instances the affidavit from an expert asserting a deviation from the appropriate standard of care will be sufficient to defeat summary judgment.  But here the affidavit from plaintiff’s expert was conclusory and unsupported:

It is well settled that “a doctor is not liable in negligence merely because a treatment, which the doctor as a matter of professional judgment elected to pursue, proves ineffective. . .” … . Liability is imposed “only if the doctor’s treatment decisions do not reflect his or her own best judgment, or fall short of the generally accepted standard of care” … . Although a plaintiff’s expert may have chosen a different course of treatment, “this, without more, represents, at most, a difference of opinion among [medical providers], which is not sufficient to sustain a prima facie case of malpractice'” … . In the context of mental health providers, we have held that “[w]hen a psychiatrist chooses a course of treatment, within a range of medically accepted choices for a patient after a proper examination and evaluation, the doctrine of professional medical judgment will insulate such psychiatrist from liability” … . Where a psychiatrist fails to predict that a …patient will harm his or herself if released, liability will likewise not attach for a mere error in professional judgment … . While it is true that “the line between medical judgment and deviation from good medical practice is not easy to draw” … , the “prediction of the future course of a mental illness is a professional judgment of high responsibility and in some instance it involves a measure of calculated risk. If liability were imposed on the physician or the State each time the prediction of future course of mental disease was wrong, few releases would ever be made and the hope of recovery and rehabilitations of a vast number of patients would be impeded and frustrated” … . However, if a decision to release a patient was less than a professional medical determination, liability may attach … . A decision will not be insulated by the medical judgment rule if it is not based upon a careful examination … .

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 suffice, the expert’s opinion “must demonstrate the requisite nexus between the malpractice allegedly committed’ and the harm suffered” … . However, where “the expert’s ultimate assertions are speculative or unsupported by any evidentiary foundation . . . the opinion should be given no probative force and is insufficient to withstand summary judgment” … . Park v Kovachevich, 2014 NY Slip Op 01679, 1st Dept 5-13-14

 

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Medical Malpractice Stemming from “Lack of Informed Consent” Explained/Signing a Generic Consent Form Does Not Preclude Suit

The Second Department determined that a question of fact had been raised about medical malpractice stemming from a lack of informed consent.  The plaintiff’s signing of a generic consent form did not entitle the doctor to summary judgment:

…”[L]ack of informed consent is a distinct cause of action which requires proof of facts not contemplated by an action based merely on allegations of negligence” … . A cause of action premised on a lack of informed consent “is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation'” … . Thus, “[t]o 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 lack of informed consent is a proximate cause of the injury” … . Walker v Saint Vincent Catholic Med Ctrs, 2014 NY Slip Op 00653, 2nd Dept 2-5-14

 

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Defendant-Doctor in a Medical Malpractice Action May Be Questioned (by the Plaintiff) As an Expert About His Own Treatment of Plaintiff

The Third Department determined (1) the defendant doctor in a medical malpractice action can be deposed as an expert (by the plaintiff)  with respect to his treatment (the doctor was asked whether the treatment as described in the records deviated from the standard of care); (2) the defendant doctor must answer the question whether he has given any statements to a quality assurance committee, even though the statements themselves would be privileged; (3) substantial changes to deposition testimony in an errata sheet would be allowed, but, based on the substantive nature of the changes, further deposition of the witness was appropriate as well.  With respect to questioning the defendant doctor as an expert about his own treatment, the court wrote:

In the context of a medical malpractice action, the Court of Appeals has held that “a plaintiff . . . is entitled to call the defendant doctor to the stand and question him [or her] both as to his [or her] factual knowledge of the case (that is, as to his [or her] examination, diagnosis, treatment and the like) and, if he [or she] be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community” … .  Thus, although “one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness[,] [w]here . . . the opinion sought refers to the treatment rendered by the witness, the fact that it may also refer to the services of a codefendant does not excuse the defendant witness from [being deposed] as an expert” … . Lieblich … v Saint Peter’s Hospital of the City of Albany…, 516736, 3rd Dept 12-19-13

 

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“Patient/Visitor Occurrence Report” Not Statutorily Privileged in Malpractice Action Against Hospital

The Fourth Department determined Supreme Court properly allowed plaintiffs, in a medical malpractice action, to see a “patient/visitor occurrence report” generated by defendant hospital.  The court noted that the report is subject to the privilege set forth in Education Law 6527 (3), but the hospital did not establish the report was generated in connection with a quality assurance review or a malpractice prevention program:

…[T]he hospital failed to meet its burden of establishing that the report was “generated in connection with a quality assurance review function pursuant to Education Law § 6527 (3) or a malpractice prevention program pursuant to Public Health Law § 2805-j” … .  Moreover, with respect to the privilege set forth in Public Health Law § 2805-j, we deem the conclusory statement in the affidavit submitted by the hospital’s director of risk management that “[t]he report was prepared solely and exclusively in connection with the hospital’s malpractice prevention program, as required by statute” to be insufficient to meet the hospital’s burden of demonstrating that the form was actually generated at the behest of the hospital’s malpractice prevention program.  Slayton … v Kolli…, 1083, 4th Dept 11-8-13

 

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False Imprisonment Claims Against Hospital for Involuntary Confinement Turn on Finding of Medical Malpractice

In affirming the dismissal of a complaint against a hospital for false imprisonment based on involuntary confinement pursuant to the Mental Hygiene Law, the Third Department explained the relevant analysis. Plaintiff had made death threats against family members:

Pursuant to the Mental Hygiene Law, an individual may be temporarily confined on an involuntary basis where he or she has “a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself[, herself] or others” (Mental Hygiene Law § 9.39 [a]).  We agree with Supreme Court that all of plaintiff’s claims against the hospital are, in effect, claims for false imprisonment, inasmuch as they are all based upon allegations of unlawful seizure and involuntary confinement… .  These claims all turn upon a finding of medical malpractice because “[c]ommitment pursuant to Mental Hygiene Law article 9 is deemed privileged in the absence of medical malpractice”… .  Accordingly, the hospital was required to make a prima facie showing that its medical treatment did not depart from accepted standards of care… . Tienken v Benedictine Hospital, 514164, 3rd Dept 10-31-13

 

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Failure to File Retainer Agreement In Medical Malpractice Action Remedied Nunc Pro Tunc

The Second Department determined Supreme Court correctly granted leave to file a retainer agreement in a medical malpractice action, nunc pro tunc.  The attorney (Siegel) was the second attorney retained in the matter (to handle the trial).  After the case settled, the second attorney sued the first (Glassman) over the amount of the fee.  The second attorney (Siegel) , however, had not filed a retainer agreement and made a motion to file late:

Every attorney practicing law in the Second Judicial Department who is retained with respect to, inter alia, a medical malpractice action must file a retainer statement with the OCA within 30 days after being retained … . Additionally, every “attorney retained by another attorney, on a contingent fee basis, as trial or appeal counsel or to assist in the preparation, investigation, adjustment or settlement of any such action, claim or proceeding shall, within 15 days from the date of such retainer, sign personally and file with the [OCA] a written statement of such retainer” (22 NYCRR 691.20[a][3]). Filing a retainer statement with the OCA is a condition precedent to the receipt of a fee for any case to which 22 NYCRR 691.20 applies … . Attorneys failing to correctly file a retainer statement with the OCA pursuant to 22 NYCRR 691.20 are precluded from asserting breach of contract causes of action for outstanding fees, and are limited to suit in quantum meruit … . However, a late filing of a retainer statement is sufficient to preserve an attorney’s right to recover fees where that attorney first obtains leave of court to file the statement nunc pro tunc … .

In exercising its discretion to extend the time to file the subject retainer statement pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the person opposing the motion … . Here, the reason for the delay, in effect, Siegel’s law office failure, was an isolated, inadvertent mistake … and there is no prejudice to Glassman… . Siracusa v Fitterman, 2013 NY slip Op 07025, 2nd Dept 10-30-13

 

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Malpractice Action for Depression-Treatment Prior to Suicide Is Actionable

The Second Department determined a cause of action for malpractice in treating plaintiff’s decedent for depression prior to her committing suicide should not have been dismissed:

Here, the complaint sought damages for conscious pain and suffering arising from Family Services’ alleged negligence in treating the decedent’s depression during the period between October 19, 2005, and the time of her death about 10 days later. That cause of action states a cognizable legal theory sounding in professional malpractice … .

Further, EPTL 11-3.2(b), referred to as the “survival statute” …, provides that “[n]o cause of action for injury to person . . . is lost because of the death of the person in whose favor the cause of action existed.” A cause of action based on personal injuries which survives the death of the decedent is distinct from a cause of action to recover damages for wrongful death … . Accordingly, the cause of action to recover damages for conscious pain and suffering predicated on alleged acts of professional malpractice committed between October 19, 2005, and October 28, 2005, survived the decedent’s death, and damages for such pain and suffering may be recoverable by her estate … .  Stolarski v Family Servs of Westchester Inc, 2013 NY Slip Op 06850, 2nd Dept 10-23-13

 

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Question of Fact about Implied Physician-Patient Relationship In Malpractice Action

In a medical malpractice action, the Second Department determined there was a question of fact about whether an implied physician-patient relationship existed:

Liability for medical malpractice may not be imposed in the absence of a physician-patient relationship … . A physician-patient relationship is created when professional services are rendered and accepted for purposes of medical or surgical treatment … . An implied physician-patient relationship can arise when a physician gives advice to a patient, even if the advice is communicated through another health care professional … . Whether a physician’s proffer of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship has arisen is ordinarily a question of fact for a jury … .  Thomas v Hermoso, 2013 NY Slip Op 06852, 2nd Dept 10-23-13

 

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