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Supreme Court’s Grant of Defendants’ Motion to Set Aside Verdict Reversed

The First Department, over a substantial dissent, reversed Supreme Court’s grant of defendants’ motion to set aside the verdict in a medical malpractice action:

“The question of whether a verdict is against the weight of the evidence is discretion-laden, and the critical inquiry is whether the verdict rested on a fair interpretation of the evidence”…. On this record, we conclude that the Supreme Court erred in setting aside the verdict as against the weight of the evidence, because it cannot be said that the jury could not have reached its verdict upon any fair interpretation of the evidence…. The jury was entitled to resolve in plaintiff’s favor the conflict between the decedent’s and Dr. Conte’s testimony as to the nature and timing of her complaints and whether he later made referrals for CT scans that she declined.  Rose v Conte, 2013 NY Slip Op 04297, 1st Dept, 6-11-13

 

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“Substantial Factor in Producing the Injury” Jury Instruction (Re: Causation) Did Not Reduce Plaintiff’s Burden of Proof

In attempting to intubate an 83-year-old woman who was unresponsive, a doctor perforated her esophagus making it necessary that she be fed through a tube for the remaining three years of her life.  In affirming the plaintiffs’ verdict, the Court of Appeals determined that the trial court’s jury charge did not improperly reduce plaintiffs’ burden of proof on the issue of causation in this medical malpractice action. The jury was told defendant’s negligence caused the injury if it was a substantial factor in producing the injury:

It is well settled that a “plaintiff must generally show that the defendant’s negligence was a substantial factor in producing the injury” to satisfy “the burden of proving a prima facie case” in a medical malpractice action…. Here, the trial court recited the proximate cause charge directly from the PJI and explicitly instructed the jury as to plaintiffs’ burden of proof in the case. The court charged the jury using the language from PJI 2:70, as follows: “An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury. That is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.” Further, at the outset of the charge, the court instructed the jury that “the burden of the proof in this case rests with the plaintiffs,” and made clear that the plaintiffs had to establish by a preponderance of the evidence defendants’ negligence. Taking this jury charge as a whole, we do not find support for defendants’ contention of an improper alteration of the causation standard or plaintiffs’ burden of proof ….  Wild v Catholic Health System…, No 97, CtApp, 6-6-13

 

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Submission of Affidavit of Merit in Reply Improper​

In reversing the vacation of the dismissal of a medical malpractice action, the Second Department noted that it was improper to submit an affidavit of merit from a medical expert in reply papers:

The assertion of the plaintiff’s counsel that he incorrectly calendared the date on which the note of issue was due amounted to a reasonable excuse of law office failure…. However, the plaintiff failed to provide in her initial moving papers an affidavit of merit from a medical expert competent to attest to the meritorious nature of the cause of action alleging medical malpractice…. It was improper for the plaintiff to submit an affidavit of merit from a medical expert for the first time in her reply papers….  King v Dobriner, 2013 NY Slip Op 03817, 2nd Dept., 5-29-13

 

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Conflicting Expert Opinions, One of Which Was “Conclusory” with Respect to Proximate Cause, Raised Question of Fact

The Second Department reversed the dismissal of medical malpractice and wrongful death causes of action because a question of fact about whether there was a deviation from the standard of care by a hospital employee was raised by conflicting expert opinions, one of which was “conclusory” on the issue of proximate cause:

Although, generally, a hospital cannot be held vicariously liable for the negligence of a private attending physician, concurrent liability will be imposed where, inter alia, a hospital’s employees commit independent acts of negligence …. Here, Winthrop [the hospital] satisfied its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that Noble, its employee, did not commit any independent acts that deviated from the standard of care while attending to the decedent in the post-operative recovery area …. However, Winthrop failed to satisfy its prima facie burden with respect to the issue of proximate cause, as the opinion rendered by its expert on that issue was conclusory … Therefore, the burden shifted to the plaintiff to raise a triable issue of fact only as to whether there was a deviation from the standard of care …. The plaintiff did so through the affidavit of her expert, who opined that Noble deviated from the standard of care by, inter alia, failing to recognize the signs of a complication and timely report those signs to Wong [the decedent’s private attending physician]. In light of the conflicting opinions of the parties’ experts, summary judgment dismissing the medical malpractice and wrongful death causes of action insofar as asserted against Winthrop should have been denied …. Rosenstack v Wong, 2013 NY Slip Op 03316, 2nd Dept, 5-8-13

 

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“Law of the Case” Does Not Bind Appellate Courts

In a medical malpractice action, plaintiff had moved to amend her complaint to add a cause of action for wrongful death and the motion was denied.  There was a mistrial.  Before the second trial, plaintiff again moved to amend her complaint.  The motion was denied because the first denial was deemed the law of the case.  In determining the motion to amend should have been allowed, the Second Department noted that the law of the case doctrine does not apply to appellate courts:

The doctrine of the law of the case does not bind appellate courts, and thus, this Court is not bound by the law of the case established by the prior determination …. Accordingly, this Court is free to consider that branch of the plaintiff’s motion which was for leave to amend the complaint on the merits …. Under the circumstances presented here, we conclude that leave to amend the pleading should be permitted.

Generally, leave to amend a pleading should be freely given when there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the proposed amendment may have merit (see CPLR 3025[b]…). Here, in the aftermath of the court’s granting of a mistrial, Mercy [defendant] failed to allege, much less show, surprise or prejudice resulting from the plaintiff’s delay in asserting the wrongful death cause of action against it … . Moreover, the proposed amended complaint, which sufficiently alleged that Mercy’s negligence caused the decedent to suffer injuries and ultimately death, was neither “palpably insufficient nor patently devoid of merit” … .   Hothan v Mercy Med Ctr, 2013 NY Slip Op 02541, 2011-10562, Index No 14345/06, 2nd Dept, 4-17-13

 

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Expert Affidavit in Support of Hospital’s Motion for Summary Judgment Not Sufficient

In this medical malpractice case, the plaintiff alleged a delay in performing an emergency cesarean section resulted in oxygen-deprivation-injury to her baby.  In affirming the denial of summary judgment to the hospital, the Third Department noted that the affidavits submitted on behalf of the hospital did not directly address with substantive facts the evidence of a delay in assembling the surgical team:

To establish a party’s entitlement to summary judgment, a physician’s affidavit “must be detailed, specific and factual in nature” and may not simply assert in conclusory fashion that a defendant complied with the standard of care without relating the contention to the particular facts at issue …. In the absence of any factual discussion of the delay, [the] general assertion that NDH “acted at all times in a prompt, timely, and reasonable manner” lacks specificity. Accordingly, NDH failed to establish its prima facie entitlement to summary judgment, and it is unnecessary to address the sufficiency of plaintiffs’ opposing papers … . Olinsky-Paul v Jaffe, et al, 514904, 3rd Dept 4-11-13

 

 

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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

 

 

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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

 

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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

 

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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

 

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