You are here: / Medical Malpractice
, ,

Continuing Course of Treatment Doctrine Not Applicable

In a medical malpractice action, plaintiff alleged her pediatrician [Walders] was negligent in failing to properly address the condition of her foot, which turned out to be a symptom of a disorder that went undiagnosed for many years.  In upholding the trial court’s determination that the “continuing course of treatment” doctrine (which would toll the statute of limitations) did not apply, the Third Department explained:

A  “course  of treatment  speaks  to affirmative and ongoing conduct by the physician” which is recognized as such by both the patient and  physician … .Notably, a  “[r]outine examination of a seemingly healthy  patient, or  visits concerning  matters  unrelated  to  the condition  at issue giving rise to  the  claim, are  insufficient to invoke  the  benefit of the  [continuous  treatment]  doctrine” … . Here, the record is devoid of any evidence that would support a finding that Walders provided affirmative treatment to plaintiff for a condition related to her foot and Walders’ failure to diagnose or treat the condition in response to the concerns of plaintiff’s mother does not, by itself, establish an ongoing course of treatment … . Dugan v Troy Pediatrics, LLP, 515407, 3rd Dept 4-11-13

 

 

, , ,

Failure to Allege Negligent Provision of Medical Care in Notice of Claim Required Dismissal of Negligence Cause of Action; Failure to Allege Facts Demonstrating a Custom or Practice of Providing Inadequate Medical Care Required Dismissal of 1983 Causes of Action 

After a trial awarded the plaintiff over $17,000,000, the Second Department reversed determining (1) the negligent provision of medical care cause of action should have been dismissed because it was not included in the notice of claim, and (2) the 1983 causes of action should have been dismissed because they were not adequately pled in the complaint:

Here, the notice of claim failed to set forth any allegations of negligence on the part of the defendants regarding the deprivation of medical treatment to the plaintiff when he was in police custody. Therefore, the Supreme Court should have directed dismissal of so much of the complaint as alleged negligence, due to the plaintiff’s failure to file a proper notice of claim (see General Municipal Law § 50-e[2] … .  * * *

To hold a municipality liable under § 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy …. Similarly, where claims are asserted against individual municipal employees in their official capacities, there must be proof of a municipal custom or policy in order to permit recovery, since such claims are tantamount to claims against the municipality itself …. Here, the complaint failed to allege any facts from which it could be reasonably inferred that the defendants had a policy or custom of depriving medical treatment to persons in police custody ….  Vargas v City of New York, 2013 NY Slip Op 02391, 2011-02266, 2011-08980, 2011-09609, Index No 33215/07, 2nd Dept, 4-10-13

 

, ,

Out-of-Pocket Expenses Must Be Alleged in Claim Based on Alleged Failure to Detect Child’s Medical Condition In Utero

In dismissing a medical malpractice action which was based upon a physician’s alleged failure to detect a medical condition from the review of a sonogram, a condition which may have caused the parents to terminate the pregnancy, the Second Department reviewed the available damages in such an action. Ultimately the Second Department determined that the plaintiffs’ failure to raise a question of fact about future expenses they will incur for care of the child (currently paid for by Medicaid) required dismissal of the complaint:

Although a child with a disability may not maintain a wrongful life cause of action, the child’s parents may, under certain circumstances, maintain a cause of action on their own behalf to recover the extraordinary costs incurred in raising the child … . To succeed on such a cause of action, which “sound[s] essentially in negligence or medical malpractice,” the plaintiffs “must demonstrate the existence of a duty, the breach of which may be considered the proximate cause of the damages suffered by” them … . Specifically, the parents must establish that malpractice by a defendant physician deprived them of the opportunity to terminate the pregnancy within the legally permissible time period, or that the child would not have been conceived but for the defendant’s malpractice … . Further, the claimed damages cannot be based on mere speculation, conjecture, or surmise, and, when sought in the form of extraordinary expenses related to caring for a disabled child, must be necessitated by and causally connected to the child’s condition …. The “parents’ legally cognizable injury’ is the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority’” … . Since the parents’ recovery is limited to their personal pecuniary loss, expenses covered by other sources such as private insurance or public programs are not recoverable ….  Mayzel v Moretti, 2013 NY Slip Op 02379, 2011-11393, Index No 102307/09, 2nd Dept, 4-10-13

 

, ,

Question of Fact Raised by Competing Expert Affidavits Re: Proximate Cause

In reversing the trial court’s dismissal of a medical malpractice complaint, the First Department wrote:

In this medical malpractice appeal, defendants do not dispute that they departed from the accepted standard of care by incorrectly informing plaintiff that her April 9, 2007 PET scan was negative for recurrent cancer and not correcting that misinformation until November 2007. Defendants argue that the six month delay in notification did not cause plaintiff any injury. Defendants met their initial burden of establishing their entitlement to judgment as a matter of law … . However, the motion court erred in finding that plaintiff failed to raise an issue of fact requiring the denial of defendants’ motion and a trial. The issue of whether a doctor’s negligence is more “likely than not a proximate cause of [a plaintiff’s] injury” is usually for the jury to decide… . There is a substantial dissent by Justice DeGrasse.  Polanco v Reed, et al, 2013 NY Slip Op 02317, 303169/08, 8662A, 1st Dept 4-4-13

 

, ,

Opposition to Additur or Remittitur After First Trial Can Not Be Appealed After Second Trial

In a full-fledged opinion by Judge Smith, the Court of Appeals dealt with several issues in a multi-million dollar medical malpractice suit that had already gone through two trials.  One of the issues was whether opposition to additur or remittitur with respect to the verdict in an intitial trial must be raised on appeal before retrying the case.  In holding that the issue is not appealable after a second trial, the Court of Appeals wrote:

The Appellate Division regularly reviews, and sometimes accepts, arguments that an additur or remittitur granted by a trial court is either excessive or inadequate … . In no such case, as far as we are aware, has the appellant’s claim been held unpreserved for failure to specify a more reasonable increase or decrease in the damages, and imposing such a requirement would serve little purpose.

But a party that wants to challenge the amount of an additur or remittitur on appeal must do so before a new trial takes place. The chief benefit of the devices known as additur and remittitur is that, when they are accepted, they spare the parties and the court the burden and expense of a second trial. Deferring appellate review until after the second trial destroys that benefit. Such a deferral also gives the party opposing the additur or remittitur an unjustified tactical advantage: if successful on appeal, that party can choose whether to accept the new amount of the additur or remittitur, already knowing what the second jury has awarded.  *  *  *

We see no unfairness in requiring a party dissatisfied with the size of an additur or remittitur to obtain appellate review before any retrial. If there is not time for such review, and neither the trial court nor the appellate court will grant a stay, the party’s remedy is to reject the proffered stipulation and retry the case. Defendants here pursued that remedy. They are not entitled to another remedy because they are displeased with the result.  Oakes … v Patel, 51, CtApp, 4-2-13

 

,

Assisting Resident Can Not Be Sued for Malpractice

In dismissing a medical malpractice complaint against a resident who assisted another doctor during surgery, the Second Department wrote:

A resident or fellow who is supervised by a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for medical malpractice unless the resident or fellow knows that the supervising doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders, or the resident or fellow commits an independent act that constitutes a departure from accepted medical practice …. Poter v Adams, 2014 NY Slip Op 02061, 2012-03922, Index No 27069/09, 2nd Dept 3-27-13

 

,

Experts’ Failure to Address Proximate Cause Precluded Summary Judgment

The defendants in a medical malpractice action were granted summary judgment finding that any departures from the standard of care were not the proximate cause of plaintiff’s injuries.  The Court of Appeals reversed because the defendants’ experts did not address proximate cause in their affidavits in support of the summary judgment motion.  The defendants therefore did not meet their burden on the issue of proximate cause. Orsi, et al, v Haralabatos, et al, 50, CtApp 3-26-13

 

, ,

Lawsuit Prohibited by Unambiguous Release

In reversing the trial court, the Second Department determined a medical malpractice complaint should have been dismissed based on the unambiguous language of a release signed by the plaintiff:

The action should have been dismissed as against defendants-appellants based on the unambiguous language in the release, which clearly intended to put an end to the action …. Given the unambiguous terms of the release, the motion court should not have considered extrinsic evidence… . Bernard v Sayegh, 2013 NY Slip Op 02027, 8619, 111756/06, 1st Dept. 3-26-13

 

,

Falling Off X-Ray Table Raised Question of Fact

The Fourth Department determined plaintiff had raised a question of fact re: medical malpractice where decedent fell off an x-ray table when the attendant left the room to develop the x-rays:

Defendant failed to meet its “ ‘initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff[’s decedent] was not injured thereby’ ” … . With respect to decedent’s fall from the X ray table, defendant failed to present competent proof that it did not deviate from the applicable standard of care when the technician left the room to develop the X rays that had just been taken, with decedent still on the table.  Welsh, et al, v St Elizabeth Medical Center, 332, CA 12-01576, 4th Dept. 3-22-12

 

 

, ,

Individual Employees of Defendant Can Be Named In the Complaint Even Though They Were Not Named in the Notice of Claim

In this case a notice of claim was filed naming the Erie County Medical Center Corporation (ECMCC) as defendant. In the complaint, the individual doctors, employees of ECMCC, were named as defendants. Overruling precedent to the contrary, the Fourth Department determined it was not necessary to name the individual employees in the notice of claim in order to sue them. In a full-fledged opinion by Justice Scudder, the Fourth Department wrote:

 …[D]efendants contend that, although service of the notice of claim on the Employee Defendants was not required, plaintiff was nevertheless required to name those individual defendants in the notice of claim as a condition precedent to the commencement of an action against them. Despite precedent supporting that contention, we agree with Supreme Court that there is no such requirement. * * *

Although “[p]recedents involving statutory interpretation are entitled to great stability” …, we conclude that the courts have misapplied or misunderstood the law in creating, by judicial fiat, a requirement for notices of claim that goes beyond those requirements set forth in the statute.

If the legislature had intended that there be a requirement that the individual employees be named in the notices of claim, it could easily have created such a requirement. Goodwin, et al, v Pretorius, et al, 101, CA 12-01441, 4th Dept. 3-22-13

 

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy