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Wife’s Derivative Claim Added to Complaint After Expiration of Statute of Limitations

The First Department held that a wife’s derivative claim in a medical malpractice action brought by her husband could be added to the complaint after the statute of limitations had expired (disagreeing with the 2nd and 3rd Departments):

The motion court properly exercised its discretion in granting leave to amend. The original complaint placed Kings Harbor on notice of the underlying transaction (see CPLR 203 [f] …. We are in accord with the 3rd Department’s view that “[i]n the absence of any prejudice and under these circumstances, Supreme Court should be permitted to exercise that same discretion which would allow the addition of a plaintiff’s derivative cause of action” … . We disagree with the cases holding that a spouse’s derivative claim cannot be added to a complaint through the relation back provision of CPLR 203 (f) (see e.g. Dowdall v General Motors Corp., 34 AD3d 1221, 1222 [4th Dept 2006]; Lucido v Vitolo, 251 AD2d 383, 384 [2d Dept 1998]).  Giambrone v Kings Harbor Multicare Ctr., 2013 NY Slip Op 01898, 9235N 307139/09, 1st Dept. 3-21-13

 

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Expert Affidavit Did Not Raise a Question of Fact 

In affirming the grant of summary judgment to the defendant hospital, the Second Department explained the flaws in the plaintiffs’ expert’s affidavit, finding the expert did not lay a foundation for an opinion outside the expert’s area of specialization and made “speculative” and “conclusory” assertions:

In opposition, the affidavit of the plaintiffs’ expert did not raise a triable issue of fact. When, as here, “a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . Here, the plaintiffs’ expert failed to lay the requisite foundation. Moreover, even assuming the requisite foundation had been laid, the expert’s assertions that a diagnosis of the fracture at the hospital would have led to adequate immobilization, without specifying what adequate immobilization would have entailed, and may have resulted in “normal healing,” are conclusory and speculative, and thus, insufficient to raise a triable issue of fact as to causation … . Shashi v Nassau Communities Hosp., 2013 NY Sip Op 01818, 2011-04552, Index No 15636/08, 2nd Dept. 3-20-13

 

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“Emergency Exception” to Rule Hospital Is Not Vicariously Liable for Negligence of Non-Employee Physicians Did Not Apply

he Second Department determined the hospital’s (Winthrop-University Hospital’s) motion for summary judgment dismissing the cause of action alleging it was vicariously liable for the actions of a non-employee physician (Raio) should have been granted.  The hospital demonstrated that the “emergency room exception” to vicarious liability for the negligence of a non-employee physician did not apply:

“In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee” … . “However, an exception to the general rule exists when a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing” … .

Here, Winthrop-University Hospital made a prima facie showing of its entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it was vicariously liable for the alleged malpractice of Raio by submitting evidence that Raio was not an employee of Winthrop-University Hospital, but rather, an attending physician at the hospital …. Furthermore, Winthrop-University Hospital made a prima facie showing that the emergency room exception was inapplicable, by demonstrating that the decedent was referred to Raio’s care by his own internist … .  Giambona v Hines, et al, 2013, NY Slip Op 01803, 2011-05943, Ind No 7819/07, 2nd Dept. 3-20-13

 

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Relation Back Doctrine Allowed Adding Doctor as Defendant in Medical Malpractice Action after Expiration of Statute of Limitations.

The relation back doctrine was applied in a medical malpractice action to allow the addition of a doctor as a defendant after the statute of limitations expired. The doctrine applies where “(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, 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 additional party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well.”  The fact that the omission of the party may have been “negligent,” as opposed to a “mistake,” did not prevent the application of the doctrine. Kirk, et al, v University Ob-Gyn Associates, Inc., et al, 159, CA 12-01405, Fourth Dept. 3-15-13

 

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Failure to Instruct Jury that Medical Practice Guidelines Did Not Set Forth the Applicable Standard of Care Required Reversal

The case turned on whether the defendant failed to recommend and perform a timely colonoscopy (the plaintiff, who had a history of colon polyps, contracted colon cancer).  At trial the defendant doctor was allowed to introduce in evidence guidelines published by the American Gastroenterological Association which included the recommended frequency of colonoscopies.  The plaintiff objected and requested a limiting instruction informing the jury that the guidelines “did not set forth the standards of care with regard to the diagnosis and treatment of plaintiff’s colon cancer.” The trial court gave a cursory limiting instruction at the time the guidelines were admitted, and told the jury another instruction would be forthcoming.  The trial court subsequently declined to give any further instructions on the issue.  In reversing the judgment for the defendant and ordering a new trial, the First Department wrote:

The court erred in failing to give the instruction that plaintiff requested. Although the trial court’s instruction informed the jury that it was to make its determination based on “all the evidence,” this instruction was not sufficient to guide the jury on how to apply the Guidelines to the facts before it. The court’s instruction as rendered failed to make clear to the jury that the Guidelines were simply recommendations regarding treatment, and thus, that compliance with the Guidelines did not, in and of itself, constitute good and accepted medical practice … . The trial court should have given the jury an instruction specifically stating that the Guidelines were not the same as standards of care and that the jury was to make its determination based on the particular circumstances of the case, not on the Guidelines alone. Introducing the Guidelines into evidence without the appropriate limiting instruction allowed the jury to infer that a physician need not exercise professional judgment with regard to individual patients, but could simply abide by the recommendations promulgated in the Guidelines.  Hall v Kiyici, 2013 NY Slip Op 01616, 9067, 23531/05, 1st Dept. 3-14-13

 

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Medical Malpractice—Expert Opinion Can Be Based Entirely on Experience.

In affirming the denial of defendants’ motion for summary judgment, the First Department noted that an expert’s affidavit can be sufficient to raise a triable issue of fact even where the opinion is based entirely on the expert’s professional experience: “While an expert affidavit cannot be speculative, there is no threshold requirement in an ordinary case, not involving a novel scientific theory, that a medical opinion regarding deviation be based upon medical literature, studies, or professional group rules in order for it to be considered. It can be based upon personal knowledge acquired through professional experience …”.  Mitrovic v Silverman, 9282, 304369/09, First Dept. 3-7-13

 

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Hospital Generally Not Liable for Negligence of Private Attending Physician.

“ ‘[I]n general, a hospital cannot be held vicariously liable for the negligence of a private attending physician’ … . Further, a hospital cannot be held concurrently liable with such a physician unless its employees commit independent acts of negligence or the attending physician’s orders are contraindicated by normal practice…’ “.  Aronov v Soukkary, 2012-00155, Index No 2061/09, Second Dept. 3-6-13

 

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Expert Opinion Must Be Based On Facts in Record or Personally Known.

“A written report prepared by a nontestifying doctor interpreting the results of a medical test is not admissible into evidence.  …[O]pinion evidence must be based on facts in the record or personally known to the witness …”  D’Andria vs Pesce, 2011-03506, Index No. 16320/02 Second Dept. 2-20-13

 

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Damages for Worry About Baby’s Health Not Recognized in New York.

The Second Department held that plaintiff could not recover for purely emotional damages.  The complaint alleged plaintiff’s doctor knew plaintiff was pregnant, but allowed her to undergo a CT-scan without informing her of the pregnancy. Plaintiff sought damages for “the emotional distress arising from her fear that the CT-scan might have harmed her unborn child.”  The Second Department determined defendant’s motion to dismiss the complaint should have been granted because “[n]o such claim is recognized under New York law…”. Nadal v Jaramillo, 2012-04006, Index No. 30748/08 Second Dept.1-23-13

 

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Medical Malpractice Against Hospital, No Need to Name Individual Doctors.

In a medical malpractice action, where the plaintiff has a respondeat superior claim against a hospital based on the actions of nonparty physicians, the failure to name the individual doctors upon whom the claim is based within the applicable statute of limitations period does not compel dismissal of the vicarious liability claim against the hospital.  Parilla v Buccellato, et al, 2011-09045, Index No. 500001/08 Second Dept. 1-9-13

 

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