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IN A MEDICAL MALPRACTICE CASE, CONFLICTING EXPERT OPINIONS WHICH ARE EVIDENCE-BASED (I.E., NOT MERELY “CONCLUSORY”) REQUIRE DENIAL OF SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court in this medical malpractice case, determined plaintiff’s expert raised questions of fact about whether defendant surgeon failed to diagnose and treat a post-operative infection of plaintiff’s knee. Therefore, defendant’s motion for summary judgment should not have been granted. The decision is fact-specific and cannot be fairly summarized here. But the simple issue is: if experts on both sides of a med mal case come to conflicting conclusions which are evidence-based, summary judgment is inappropriate:

Based on the conflicting expert proof, plaintiff raised triable issues of fact … . Accordingly, defendants were not entitled to summary judgment. Kelly v Herzog, 2024 NY Slip Op 01137, Third Dept 2-29-24

Practice Point: In a med mal case, conflicting expert affidavits which are not “conclusory,” but rather are supported by evidence, preclude summary judgment.

 

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UNDER THE UNIQUE FACTS OF THIS MED MAL TRIAL, DEFENDANTS DID NOT ATTEMPT TO SHIFT LIABILITY TO PHYSICIANS WHO HAD BEEN AWARDED SUMMARY JUDGMENT PRIOR TO TRIAL (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Warhit, determined defendant doctor and hospital in this med mal case did not attempt at trial to shift liability to the physician-defendants who had been awarded summary judgment before trial. The opinion is fact-specific and therefore will not be summarized here. The issue is discussed in detail and relevant authority is analyzed in some depth:

The principal question presented on this appeal is whether the defendants improperly attempted at trial to shift liability to certain physician-defendants who had been awarded summary judgment prior to trial. We answer this question in the negative, and find that the Supreme Court providently exercised its discretion in denying the application of the plaintiff … , in effect, for a new trial on this ground. We further conclude that the verdict was not contrary to the weight of the evidence. Angieri v Musso, 2024 NY Slip Op 00887, Second Dept 2-21-24

Practice Point: Under the specific facts brought out at trial in this med mal case, the plaintiff did not attempt to shift liability to doctors who had been awarded summary judgment prior to trial. The issue and the relevant authority are discussed in some detail.

 

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IN A MED MAL ACTION PLAINTIFF’S EXPERT NEED NOT HAVE PRACTICED IN THE SAME SPECIALTY AS DEFENDANT DOCTOR TO BE QUALIFIED TO OFFER EXPERT OPINION EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert laid an adequate foundation for their qualifications in orthopedic medicine. The court noted that plaintiff’s expert need not have practiced in the same specialty as the defendant:

“[A] plaintiff’s expert need not have practiced in the same specialty as the defendant[]” … , and “any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony” … . Here, plaintiffs’ expert is board certified as a medical examiner, an orthopedic surgeon and an arthroscopic laser surgeon. The expert completed a residency in general and orthopedic surgery. The expert is now a clinical instructor of orthopedic surgery and a clinical assistant professor of orthopedic surgery. The expert is affiliated with four hospitals and previously served as the chair of the department of orthopedic surgery at one hospital. Thus, we conclude that plaintiffs’ expert “had the requisite skill, training, education, knowledge or experience from which it can be assumed that [the expert’s] opinion[ ] . . . [is] reliable” … . McMahon-DeCarlo v Wickline, 2024 NY Slip Op 00730, Fourth Dept 2-9-24

Practice Point: Although plaintiff’s expert had not practiced in the same specialty as defendant doctor in this med mal action, plaintiff’s expert was qualified to offer reliable expert opinion evidence.

 

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DEFENDANTS WERE ENTITLED TO IMMUNITY FROM THIS MEDICAL MALPRACTICE, WRONGFUL DEATH ACTION; PLAINITFF’S DECEDENT WAS ADMITTED TO THE HOSPITAL WITH COVID AND DIED FROM COVID; IMMUNITY IS PROVIDED BY THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice complaint should have been dismissed. Plaintiff’s decedent was admitted to defendants’ hospital with COVID-19 and died from COVID-19. Defendants are entitled to immunity from suit by the Emergency or Disaster Treatment Protection Act (EDTPA):

… [P]laintiff alleges that the decedent was diagnosed with COVID-19 after arriving at Elmhurst Hospital on March 30, 2020, and that he died from COVID-19 on April 9, 2020. The defendants’ submissions, including the complaint and the transcript of the plaintiff’s hearing pursuant to General Municipal Law § 50-h, conclusively established that the defendants were entitled to immunity under the EDTPA (see Public Health Law former § 3082 …). As the complaint makes no allegations that the defendants’ acts or omissions constituted willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm, none of the exceptions to the immunity provisions of EDTPA apply (see Public Health Law former § 3082[2]). Martinez v NYC Health & Hosps. Corp., 2024 NY Slip Op 00186, Second Dept 1-17-24

Practice Point: The defendants in the medical malpractice, wrongful death action are immune from suit pursuant to the Emergency or Disaster Treatment Protection Act (EDTPA). Plaintiff’s decedent was admitted to the hospital with COVID and died from COVID.

 

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PLAINTIFF’S “INADEQUATE FALL-PROTECTION” CAUSES OF ACTION SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE; THEREFORE PLAINTIFF’S AFFIDAVIT FROM A NURSE WAS NOT SUFFICIENT TO OVERCOME DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT WHICH WAS SUPPORTED BY AN AFFIDAVIT FROM A PHYSICIAN (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the two “inadequate fall-prevention” causes of action in the complaint sounded in medical malpractice, not negligence. Therefore the affidavit from a nurse was not sufficient to support the malpractice causes of action:

Defendants established their prima facie entitlement to summary judgment with respect to the specific allegations sounding in medical malpractice, by and through an expert’s affidavit from a physician opining that decedent was provided with fall prevention interventions throughout her admission that met or exceeded the standard of care, and that, following each fall, decedent was rendered the appropriate medical care and treatment. Moreover, this physician opined that the treatment plan developed for decedent and the care rendered to her were within the standard of care and were not a substantial factor in causing the alleged injuries … . In opposition, plaintiff tendered an expert affidavit from a nurse. However, inasmuch as certain allegations sound in medical malpractice and pertain to medical determinations and what a physician should or should not have done, plaintiff’s nurse rendered opinions that “went beyond her professional and educational experience and cannot be considered competent medical opinion” … . Currie v Oneida Health Sys., Inc., 2023 NY Slip Op 06780, Second Dept 12-28-23

Practice Point: Re: the medical malpractice causes of action, the affidavit from a physician in support of defendants’ motion for summary judgment prevailed over plaintiff’s affidavit from a nurse who, based on her experience and education, could not offer a competent medical opinion.

 

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PETITIONER PATHOLOGIST IS BEING SUED BY AN INMATE WHO ALLEGES MISDIAGNOSIS OF A BIOPSY; BECAUSE THE REQUEST FOR THE BIOPSY CAME FROM A DOCTOR WHO WAS UNDER CONTRACT WITH THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS), AND NOT DIRECTLY FROM DOCCS, THE STATE IS NOT OBLIGATED TO DEFEND OR INDEMNIFY THE PATHOLOGIST (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming the Appellate Division, determined the state did not have an obligation to defend or indemnify the petitioner, a pathologist, who concluded the lump under an inmate’s arm was benign. Dr. Cotie, a physician who provided services to inmates under a contract with the Department of Corrections and Community Supervision (DOCCS), had taken a biopsy and had sent it to petitioner for analysis. One year after the “benign” finding, the inmate was diagnosed with Hodgkin’s lymphoma. Because the request for the biopsy analysis did not come directly from DOCCS, pursuant to the language in the Correction Law, the state was not required to defend or indemnify the petitioner pathologist:

Under Correction Law § 24-a, the provisions of Public Officers Law § 17 are made applicable to “any person holding a license to practice a profession. . . who is rendering or has rendered professional services authorized under such license while acting at the request of the department or a facility of the department in providing health care and treatment or professional consultation to incarcerated individuals of state correctional facilities” … . The Attorney General has interpreted this language to mean that the State’s obligation to defend and indemnify applies only where there has been an express request by DOCCS for the services of a particular provider—i.e., a formal arrangement or understanding made in advance between DOCCS and the healthcare professional. * * *

Petitioner performed pathology services on the biopsy sample as a result of his contract with the hospital, not because he was acting at DOCCS’ request or executing any public responsibility associated with the care or treatment of incarcerated individuals. Matter of Jun Wang v James, 2023 NY Slip Op 06405, CtApp 12-14-23

Practice Point: Unless DOCCS directly and expressly requests that a doctor provide a service for an inmate, the state will not indemnify or defend the doctor in a lawsuit by an  inmate. A request from a doctor under contract with DOCCS will not trigger indemnification or defense.

 

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PLAINTIFF’S MOTION TO AMEND THE NOTICE OF CLAIM TO ADD A VERIFICATION IN THIS WRONGFUL DEATH ACTION AGAINST THE CITY SHOULD NOT HAVE BEEN DENIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, held that the plaintiff’s motion to amend the notice of claim in this wrongful death action against the defendant city should not have been denied:

“Where there is no showing of prejudice to a municipality, the fact that a notice of claim was not verified by a claimant may be disregarded” … . Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s cross-motion pursuant to General Municipal Law § 50-e(6) for leave to amend the notice of claim to add a verification from the plaintiff’s attorney that the plaintiff lives in a different county than the attorney, as the City defendants failed to demonstrate that they would be prejudiced by the amendment … . Watts v Jamaica Hosp. Med. Ctr., 2023 NY Slip Op 06276, Second Dept 12-6-23

Practice Point: Where there is no prejudice to the municipality, the fact that a notice of claim was not verified can be disregarded.

 

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THE COMPLAINT ALLEGED DECEDENT, WHO WAS SUFFERING SHORTNESS OF BREATH, SHOULD HAVE BEEN PROVIDED AN ADVANCE LIFE SUPPORT AMBULANCE; THE COMPLAINT SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the complaint alleging decedent, who was suffering shortness of breath, should have been provided an advance life support (ALS) ambulance sounded in medical malpractice, not negligence. Therefore the 2 1/2 year statute of limitations applied and the action was time-barred:

… [T]he allegations in the complaint sound in medical malpractice rather than ordinary negligence. Plaintiffs seek to hold defendant liable for its failure to provide decedent with an advance life support (ALS) ambulance after being advised that decedent was suffering from shortness of breath. The type of ambulance provided by defendant “bears a substantial relationship to the rendition of medical treatment,” and thus plaintiffs’ claims must be viewed within a medical malpractice framework … . The dispatcher would need to understand the significance of “shortness of breath,” have specialized knowledge of the equipment or devices that could treat or care for the possible conditions arising from this symptom and be familiar with accepted practice in providing an ALS ambulance … . Trofimova v Seniorcare Emergency Med. Servs., Inc., 2023 NY Slip Op 05997, First Dept 11-21-23

Practice Point: Where the complaint alleges the need for and failure to provide an ambulance with advance life support, it sounds in medical malpractice, not negligence.

 

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PLAINTIFF’S ATTORNEY HAD REPRESENTED THE DEFENDANT IN THIS CASE IN A MATTER INVOLVING SUBSTANTIALLY SIMILAR ALLEGATIONS OF MEDICAL MALPRACTICE; THE MOTION TO DISQUALIFY PLAINTIFF’S ATTORNEY AND THE ATTORNEY’S SMALL LAW FIRM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s attorney, Laraby, and Laraby’s law firm, must be disqualified in this medical malpractice action. Laraby had represented the defendant in this case in a matter involving substantially similar allegations of malpractice:

The plaintiff in the prior representation, whose baby had suffered from essentially the same injuries as plaintiff’s son here, made many of the same allegations of negligence and malpractice against defendant as plaintiff does in this case. Both cases involved whether defendant properly monitored the patients and the babies and made proper decisions regarding oxytocin administration, and whether defendant made the proper decision to continue with vaginal delivery instead of proceeding with a cesarean section. Alternatively, defendant established that Laraby received specific, confidential information in the prior litigation that is substantially related to the present litigation … . In particular, Laraby had access to the litigation strategy to defend defendant against the allegations of malpractice, including speaking with and receiving reports of expert witnesses. Brandice M.C. v Wilder, 2023 NY Slip Op 05871, Fourth Dept 11-17-23

Practice Point: Here plaintiff’s attorney had represented the defendant in this medical malpractice action in a case where the issues were substantially the same. The motion to disqualify the attorney and the attorney’s small law firm should have been granted.

 

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PLAINTIFF’S EXPERTS WERE NOT QUALIFIED TO OFFER AN OPINION ON THE TREATMENT PROVIDED BY DEFENDANT MEDICAL ONCOLOGIST; THEREFORE THE EXPERTS DID NOT DEMONSTRATE DEFENDANT OWED PLAINITFF A DUTY OF CARE, A QUESTION OF LAW FOR THE COURT (SECOND DEPT).

The Second Department, in a comprehensive decision, over a comprehensive dissent, determined that the summary judgment motion by one of plaintiff’s treating physicians was properly granted in this medical malpractice case. Neither of plaintiff’s experts was qualified to assess the defendant medical oncologist’s (Hindenberg’s) care of plaintiff. Therefore the expert affidavits did not demonstrate defendant owed a duty of care to the plaintiff (Petillo), which is a question of law for the court:

… [I]n order to reach any discussion[s] about deviation from accepted medical practice, it is necessary first to establish the existence of a duty”… . “‘Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient'” … . “The existence and scope of a physician’s duty of care is a question of law to be determined by the court” … . * * *

Petillo’s internal medicine and infectious disease expert failed to lay the requisite foundation to render an opinion on Hindenburg’s actions as a medical oncologist … . The expert did not claim to have any skill, training, education, knowledge, or experience in the field of medical oncology. While the expert gave an opinion that Hindenburg departed from the standards of care applicable to internal medicine, Petillo was not referred to Hindenburg as an internist and Hindenburg did not treat Petillo as an internist, rendering the standard of care for an internist inapplicable.

Petillo’s surgical oncologist expert also failed to lay the requisite foundation to render an opinion on Hindenburg’s actions as a medical oncologist. This expert, a board-certified surgeon who practices in the field of surgical oncology, a specialty distinct from medical oncology, failed to establish that he had the skill, training, education, knowledge, or experience in the field of medical oncology sufficient to provide a foundation to opine on the clinical standard of care and departures of a medical oncologist. Abruzzi v Maller, 2023 NY Slip Op 05704, Second Dept 11-15-23

Practice Point: Before an expert can offer an admissible opinion on the care provided by a doctor in a medical malpractice case, the expert must demonstrate he or she is qualified to assess the care provided by the defendant doctor, here a medical oncologist. The failure to demonstrate the necessary qualifications to assess the care provided by the defendant specialist, constituted the failure to demonstrate the defendant doctor owed a duty to the plaintiff, a question of law for the court.

 

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