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DOCTOR INTENTIONALLY LEFT A GUIDE WIRE USED DURING SURGERY INSIDE PLAINTIFF’S BODY WHEN HE WAS UNABLE TO FIND IT, RES IPSA LOQUITUR DID NOT APPLY, COMPLAINT PROPERLY DISMISSED (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the medical malpractice action was properly dismissed after plaintiff’s proof was put in. Defendant doctor intentionally left a guide wire (used during a surgical procedure) inside plaintiff’s body after he was unable to locate it. The guide wire was later removed with the aid of a special x-ray machine. The “foreign object” was not left plaintiff’s body unintentionally, which is a requirement of the res ipsa loquitur doctrine. And plaintiff was unable to show that it was the defendant doctor, and not someone else involved in the surgery, who exercised control over the guide wire:

Plaintiff Marguerite James commenced this medical malpractice action against defendants Dr. David Wormuth and his practice … after he failed to remove a localization guide wire during a biopsy of an area on plaintiff’s lung. On this appeal from the Appellate Division order affirming the dismissal of her amended complaint, we affirm.

In October 2004, a guide wire inserted into the plaintiff to assist with a biopsy of an area in her lung dislodged. Defendant Dr. Wormuth proceeded with the biopsy, but was unable to locate the dislodged wire. After an unsuccessful 20-minute manual search for the wire, defendant determined that it was better for the plaintiff to leave the wire and end the surgical procedure, rather than to extend the amount of time she was in surgery for him to continue searching for the wire. Defendant informed plaintiff after the surgery that he could not find the wire, and that he had determined that it was better to leave it rather than continue the search procedure.

Plaintiff subsequently returned to defendant complaining of pain she attributed to the lodged wire, and which she said was so significant that it disrupted her ability to work. Approximately two months after the first procedure, defendant performed a second operation. In that procedure, he successfully … located and removed the wire with the use of a special X-ray machine known as a C-arm. * * *

To the extent counsel argued that res ipsa loquitur applies because the wire could only have dislodged due to the doctor’s negligence, plaintiff failed to establish the elements of res ipsa, specifically that Dr. Wormuth had exclusive control … . Dr. Wormuth testified that there were other medical personnel involved in the process of inserting the wire and transporting the plaintiff prior to the doctor’s discovery that the wire had dislodged. Plaintiff did not produce any evidence to the contrary. Instead, plaintiff’s counsel appears to have … believed that the control element was satisfied because the doctor had control over the operation. Whether the doctor was in control of the operation does not address the question of whether he was in exclusive control of the instrumentality, because several other individuals participated to an extent in the medical procedure. Given that plaintiff failed to produce any evidence that the doctor had exclusive control of the wire, or sufficient proof that “eliminate[s] within reason all explanations for the injury other than the defendant’s negligence,” the control element clearly has not been satisfied … . James v Wormuth, 2013 NY Slip Op 04839 [21 NY3d 540] CtApp 6-27-13

 

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Theories Not Included in Notice of Claim Precluded

In a slip and fall case, the First Department precluded plaintiff from asserting theories of liability not in the notice of claim:

The notice of claim limited plaintiffs’ theory of liability to negligent maintenance, upkeep and repair of the subject staircase, asserting that the infant plaintiff was caused to slip and fall due to a liquid substance on the floor and inadequate lighting. The infant plaintiff testified that he was caused to fall by “slippery juice” that was “all over the stairs.” He testified that he wasn’t able to see all of the juice due to insufficient lighting. Plaintiffs’ new theory, in opposition to the motion for summary judgment, that the infant plaintiff was caused to slip and fall due to various design defects including, inter alia, treads and risers of insufficient length, an improperly placed handrail and stairs not coated with nonskid materials, is precluded… Rodriguez v Board of Educ of the City of NY, 2013 NY Slip Op 04912, 1st Dept 6-27-13

 

Voluntary Participation in Fight Precludes Suit Alleging Inadequate Building Security

The First Department determined that plaintiff’s voluntary participation in a fight severed any causal connection between his injuries and the defendant building owner’s and defendant building manager’s alleged failure to keep the premises safe:

Courts in all four judicial departments have found that one who voluntarily participates in a physical fight cannot recover from a party generally charged with ensuring a safe environment. Thus, in Williams v Board of Educ. of City School Dist. of City of Mount Vernon (277 AD2d 373 [2d Dept 2000]), the duty of supervision normally imposed on a school was found to have been displaced by the plaintiff student’s voluntary participation in a fight. Similar results obtained in Borelli v Board of Educ. of Highland School Dist. (156 AD2d 903 [3d Dept 1989) and in Ruggerio v Board of Educ. of City of Jamestown (31 AD2d 884, 884 [4th Dept 1969] [holding that “(p)laintiff’s conduct, demonstrating a lack of reasonable regard for his own safety, was a direct cause of the incident resulting in his injury and, as such, defeats his right of recovery against the defendant Board of Education”], affd 26 NY2d 849 [1970]).  This Court in Vega v Ramirez (57 AD3d 299 [1st Dept 2008]) also held that a plaintiff’s willing participation in a fight negates any negligence committed by a defendant with a duty to provide security.  Carreras v Morrisania Towers Hous Co Ltd Partnership, 2013 NY Slip Op 04893, 1st Dept 6-27-13

THIRD PARTY ASSAULT

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Hospital Can Be Vicariously Liable for Actions of Non-employee Physician Under Apparent or Ostensible Agency Theory

The Second Department explained when a hospital can be held vicariously responsible, under a theory of apparent or ostensible agency, for the actions of non-employee physicians who provide medical services at the hospital:

“A hospital [is] responsible to a patient who sought medical care at the hospital, . . . rather than from any particular physician although the physician whose malpractice caused injury to the patient was not an employee of the hospital”… . To create an apparent or ostensible agency, the plaintiff must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the plaintiff must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not on reliance on the agent’s skill…. In the context of a medical malpractice action, the patient must have reasonably believed that the physicians treating her were provided by the hospital or acted on the hospital’s… . In evaluating whether a doctor is the apparent agent of a hospital, a court should consider all attendant circumstances to determine whether the patient could properly have believed that the physician was provided by the hospital… .  Loaiza v Lam, 2013 NY Slip Op 04780, 2nd Dept 6-26-13

 

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Late Notice of Claim Properly Allowed in Absence of Reasonable Excuse

The Second Department affirmed Supreme Court’s grant of leave to serve a late notice of claim against a school district, in the absence of a reasonable excuse:

Here …[t]he District…acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. The District’s employee witnessed the infant petitioner’s accident, which occurred during supervised cheerleading practice, and a designated school authority prepared a medical claim form within a week after the accident…. Furthermore, the infant petitioner was transported from the school to the hospital to be treated for a broken arm…. Since the District acquired timely knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice…. The District’s conclusory assertions of prejudice, based solely on the petitioners’ two-month delay in serving the notice of claim, were insufficient to rebut the petitioners’ showing….  While the petitioners’ excuses for their failure to serve a timely notice of claim were not reasonable…, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and an absence of prejudice … .  Matter of Viola v Ronkonkoma Middle Sch, 2013 NY Slip Op 04819, 2nd Dept 6-26-13

 

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Hospital Did Not Owe Intoxicated Patient a Duty to Prevent Him from Leaving Hospital

Over a dissent, the Court of Appeals, in a full-fledged opinion by Judge Smith, determined (under the facts of the case) a hospital and an emergency room doctor did not owe an intoxicated patient a duty to prevent him from leaving a hospital.  The patient was struck by a car an hour or two after leaving.

…Mental Hygiene Law § 22.09 specifically addresses the question of when a hospital may retain “a person whose mental or physical functioning is substantially impaired as a result of the presence of alcohol . . . in his or her body” (Mental Hygiene Law § 22.09 [a] [1]). The statute deals separately with the case of an intoxicated person “who comes voluntarily or is brought without his or her objection” to a hospital or other treatment facility (§ 22.09 [d]) and one “who is brought with his or her objection” (§ 22.09 [e]). In the latter case, the person “may be retained for emergency treatment” if he or she is examined by a doctor and found to be incapacitated to such a degree that “there is a likelihood to result in harm to the person or others” (§ 22.09 [e]); a “likelihood to result in harm” to oneself must be “manifested by threats of or attempts at suicide or serious bodily harm or other conduct” that demonstrates a danger of self-injury (Mental Hygiene Law § 22.09 [a] [3]). For the former category — people who, like plaintiff, come to the hospital voluntarily — the Mental Hygiene Law makes no provision for involuntary retention.

Plaintiff concedes that he could not have been retained under Mental Hygiene Law § 22.09. He argues that the Mental Hygiene Law is not the only possible source of a right to confine an intoxicated person. We need not decide that question: Plaintiff cites no other statute, and there is no principle of common law, that would permit the restraint of a patient on the facts of this case.  Kowalski v St Francis Hospital and Health Centers, et al, No 128, CtApp 6-26-13

 

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Company Hired on On-Call Basis for Elevator Repair Not Liable for Allegedly Faulty Elevator Door Interlock Where Last Repair Made 13 Months Before Accident

Plaintiff’s decedent fell down an elevator shaft, allegedly due to the condition of a door interlock.  The First Department determined the wrongful death complaint against New York Elevator and Electrical Corporation (NYE) should have been dismissed because the company was retained only on an on-call basis for repairs and there was no evidence NYE was negligent when it inspected the elevator 13 months before the accident:

The amended complaint should have been dismissed as against defendant/third-party plaintiff NYE in its entirety. NYE did not have an exclusive agreement with Broadway to maintain or service the freight elevator…. It was merely retained on an on-call basis to make specific repairs and inspections and, therefore, did not have a duty to inspect or repair unrelated defects…. Indeed, NYE may only be held liable if it failed to exercise reasonable care in making any requested repairs or inspections….  Casey v New York El & Elec Corp, 2013 NY Slip Op 04745, 1st Dept 6-25-13

 

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Ambulance Services Provided by Municipality Constitute a Governmental, Not Proprietary, Function

In a full-fledged opinion by Judge Graffeo, with two concurrences, the majority determined ambulance assistance rendered by first responders is a governmental, not proprietary, function.  The majority also concluded a question of fact had been raised about whether the city owed a “special duty” to the plaintiff, who suffered serious brain damage after going into anaphylactic shock.  Judges Smith and Abdus-Salaam disagreed with the majority and would have found that the ambulance service was a proprietary function.  The Court explained:

When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose. If the municipality’s actions fall in the proprietary realm, it is subject to suit under the ordinary rules of negligence applicable to non-governmental parties…. A government entity performs a purely proprietary role when its “activities essentially substitute for or supplement traditionally private enterprises”…. In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are “undertaken for the protection and safety of the public pursuant to the general police powers” …. * * *

If it is determined that a municipality was exercising a governmental function, the next inquiry focuses on the extent to which the municipality owed a “special duty” to the injured party. The core principle is that to “‘sustain liability against a municipality, the duty breached must be more than that owed the public generally'”… .  Applewhite, et al, v Accuhealth, Inc, et al, No 86, CtApp 6-25-13

 

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Allegation Release Procured by Fraud Precluded Dismissal of Complaint

In reversing Supreme Court’s dismissal of a slip and fall complaint which was founded on plaintiff’s signing a release, the First Department determined plaintiff had sufficiently alleged the release was procured by fraud:

Under the particular facts of this case, dismissal of the causes of action against the owners at the pleading stage was premature because plaintiff has alleged facts showing that her release may have been fraudulently obtained. To make out the basic elements of a fraudulent inducement claim, a plaintiff must establish that the reliance on the false representation was justified…. Whether the plaintiff could justifiably rely on the false representation is an issue of fact…. “The question of what constitutes reasonable reliance is always nettlesome because it is so fact-intensive”…. Moreover, “[w]here fraud . . . in the procurement of a release is alleged, a motion to dismiss should be denied”….  A plaintiff’s reliance on a misrepresentation may be justified even if the plaintiff is represented by counsel … .  Gonzalez v 40 W Burnside Ave, LLC, 2013 NY Slip Op 04685, 1st Dept, 6-20-13

 

Driver Stalled in Moving Lane of Traffic Not Negligent Re: Rear-End Collision

In finding Supreme Court should have dismissed the complaint against a driver (Mabella) who was struck from behind when stopped, due to mechanical trouble, in a moving lane of traffic, the Second Department explained:

Mabella established his prima facie entitlement to judgment as a matter of law through his submission of the deposition testimony of the parties, which demonstrates that his vehicle was fully stopped when it was struck in the rear by the Maldonado vehicle…. Although his vehicle was stopped in a moving lane of traffic, Mabella established that this was due to mechanical failure and not the result of any fault on his part…. The plaintiff and the defendants who opposed Mabella’s motion failed to raise a triable issue of fact regarding Mabella’s alleged fault in the happening of the accident. Prosen v Mabella, 2013 NY Slip Op 04589, 2nd Dept, 6-19-13

TRAFFIC ACCIDENTS

 

 

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