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IN A VEHICULAR MANSLAUGHTER CASE, THE STANDARD OF PROOF OF IMPAIRMENT FROM MARIJUANA IS THE SAME AS THE STANDARD OF PROOF OF IMPAIRMENT FROM ALCOHOL (THIRD DEPT).

The Third Department, in a comprehensive opinion by Justice Lynch, affirmed defendant’s conviction stemming from a collision with a motorcycle at a time when defendant was impaired by marijuana (THC). The decision, which lays out the law of vehicular manslaughter, carefully goes through evidence of impairment and causation. The opinion is too detailed to be fairly summarized here. It is worth noting that, on the issue of impairment, the opinion indicates a prior decision describing a different standard of proof of impairment for marijuana, as opposed to alcohol, should no longer be followed. The same standard of proof of impairment is applied to the drugs enumerated in Public Health Law 3306, including marijuana, as is applied to alcohol:

… [T]he degree of impairment necessary to convict a motorist of vehicular manslaughter in the second degree based upon a death that was caused while such motorist was under the influence of one of the drugs enumerated in Public Health Law § 3306 (which includes marihuana) is the same degree of impairment as would be necessary to sustain a conviction of driving while intoxicated by alcohol — namely, the People must prove that such motorist was “incapable of employing the physical and mental abilities which he [or she was] expected to possess in order to operate a vehicle as a reasonable and prudent driver” … . To the extent that this Court’s decision in People v Rossi (163 AD2d 660, 662 [1990], lv denied 76 NY2d 943 [1990]) can be read as holding that a conviction of vehicular manslaughter in second degree based upon a violation of Vehicle and Traffic Law § 1192 (4) only requires proof that the motorist was impaired “to any extent,” it should no longer be followed. People v Caden N., 2020 NY Slip Op 05979, Third Dept 10-22-20

 

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CERTAIN DISCOVERY DEMANDS IN THIS NEGLIGENCE AND PUBLIC HEALTH LAW ACTION AGAINST A RESIDENTIAL CARE FACILITY ON BEHALF OF A FORMER RESIDENT SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined certain discovery demands by plaintiff should have been granted. Plaintiff’s decedent was a resident at defendant’s residential care facility and plaintiff brought an action against the facility alleging negligent care and violations of Public Health law 2801-d:

Supreme Court should have granted those branches of the plaintiff’s motion which were to compel the defendants to comply with (1) his discovery demand number 30, (2) his discovery demand number 32 to the extent that it demands “[a]ll documents relating to meals provided to” the decedent, (3) his discovery demand number 33 to the extent that it demands “[a]ll documents relating to bed changing records for” the decedent, (4) his discovery demand number 34 to the extent that it demands “[a]ll documents relating to [the] movement of” the decedent, (5) his discovery demand number 35 to the extent that it demands “[a]ll documents relating to [the] washing of” the decedent, (6) his discovery demand number 36 to the extent that it demands “[a]ll documents relating to the change of position of” the decedent, and (7) his discovery demand number 51. Those demands related to the decedent’s care, the staffing of nurses and nursing assistants who provided care to the decedent, and complaints or investigations of alleged substandard care or abuse involving the decedent … . Olmann v Willoughby Rehabilitation & Health Care Ctr., LLC, 2020 NY Slip Op 04750, Second Dept 8-26-20

 

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THE ADMINISTRATIVE LAW JUDGE AND THE HEARING COMMITTEE HAD THE DISCRETION TO ACCEPT A LATE ANSWER FROM PETITIONER-PHYSICIAN WHO WAS FACING REVOCATION OF HER MEDICAL LICENSE; THE REJECTION OF THE ANSWER ON THE GROUND THE ALJ AND HEARING COMMITTEE DID NOT HAVE THE DISCRETION TO ACCEPT IT AS A MATTER OF LAW WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

The Third Department determined the Administrative Law Judge’s (ALJ’s) and the Bureau of Professional Medical Conduct (BPMC) Hearing Committee’s rejection of the petitioner-physician’s attempt to file a late answer to the charges was arbitrary and capricious. The ALJ and the Hearing Committee determined they did not have discretion, as a matter of law, under Public Health Law section 230 to accept the late answer. The Third Department held the ALJ and the Hearing Committee could have exercised discretion and accepted the answer:

… [T]he ALJ and the Hearing Committee concluded that they were precluded, as a matter of law, from accepting petitioner’s answer. We do not read the statute as imposing such a bar. Under the circumstances presented, we conclude that the ALJ and the Hearing Committee had the discretion to decide whether to accept the answer. The statutory language mandating the timely filing of an answer was added to Public Health Law § 230 (10) (c) (2) in 1996 … . Prior to the amendment, the filing of an answer was discretionary. The legislative history indicates that the amendment’s purpose in mandating the filing of an answer was to “expedite proceedings by focusing the proceedings on matters in dispute” … . Allowing a licensee to submit an answer prior to the first hearing date does not compromise this statutory objective. Notably, in Matter of Tribeca Med., P.C. v New York State Dept. of Health (83 AD3d 1135 [2011], lv denied 17 NY3d 707 [2011]), this Court determined that the ARB [Administrative Review Board for Professional Medical Conduct] possessed the discretionary authority to relieve a licensee of a default in answering charges of professional conduct … . It follows that the ALJ and the Hearing Committee had the discretionary authority to accept an answer filed after the 10-day deadline, but before the hearing. The flaw here is that the ALJ and the Hearing Committee failed to exercise any discretion in rejecting the answer, simply concluding that they lacked the legal authority to do so. Moreover, the ARB incorrectly declined to even address the issue as a procedural matter for the ALJ to resolve. These errors of law render the ARB’s determination arbitrary and capricious. Matter of Offor v Zucker, 2020 NY Slip Op 03835, Third Dept 7-9-20

 

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MOTHER CANNOT RECOVER DAMAGES FOR EMOTIONAL DISTRESS FOR INJURY IN UTERO WHERE, AS HERE, THE CHILD WAS BORN ALIVE (SECOND DEPT).

The Second Department determined plaintiff-mother’s action for damages for emotional harm stemming from the birth of her child was properly dismissed. A mother cannot recover for emotional distress for injury in utero if the child is born alive:

A mother cannot recover damages for emotional harm where the alleged malpractice causes in utero injury to a fetus that is born alive … . New York State Public Health Law defines a “live birth” as “the complete expulsion or extraction from its mother or a product of conception, irrespective of the duration of the pregnancy, which, after such separation, breathes or shows any other evidence of life such as beating of the heart”  … . According to the defendants’ submissions, the plaintiff’s infant was born with a spontaneous heartbeat of less than 60 beats per minute and was given an Apgar score of “1” at 1 minute, 5 minutes, and 10 minutes after delivery based on a heartbeat of less than 100 beats per minute. The hospital records submitted with the defendants’ motions show that respiratory effort was absent, the infant’s muscle tone was flaccid, her color was “blue/pale,” and there were no reflex responses. The records also show that resuscitative efforts were initiated, but the infant’s heart rate remained at less than 60 beats per minute with no respiratory effort, and the infant died in the delivery room that same day, less than 20 minutes after she was born. …

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff submitted the affidavit of a medical expert in pediatric neurology who conceded that the infant was born with a heartbeat and who never opined that the infant was stillborn. Although the plaintiff’s expert attested that the infant did not show signs of brain activity, was never conscious, was not viable, and was “clinically and legally dead at the time of delivery,” the affidavit of the plaintiff’s expert was insufficient to raise an issue of fact as to whether the infant was stillborn … . Inasmuch as the plaintiff contends that she should be able to recover for emotional injuries because a wrongful death cause of action on behalf of the infant would not have a viable accompanying cause of action for conscious pain and suffering since the records show that the infant was never conscious, “we conclude that this is an inherent aspect of wrongful death actions rather than a specific problem with prenatal medical malpractice actions” … . Waring v Matalon, 2020 NY Slip Op 03686, Second Dept 7-1-20

 

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POSSESSION OF SYNTHETIC CANNABINOIDS IS PUNISHABLE BY A FINE AND JAIL TIME UNDER THE SANITARY CODE; THEREFORE A SEARCH WARRANT AUTHORIZING A SEARCH FOR SYNTHETIC CANNABINOIDS IS VALID; THE WAIVER OF APPEAL HERE WAS INVALID (THIRD DEPT).

The Third Department determined defendant’s waiver of appeal was invalid, but went on to find that the search warrant and search were valid and proper. The defendant argued that the search for synthetic cannabinoids not authorized because that substance is not encompassed by the Penal Law. However, the Sanitary Code makes possession of the substance a violation which can result in a fine and a jail sentence:

… [T]he appeal waiver was invalid because County Court failed to advise defendant that the right to appeal is separate and distinct from the rights automatically forfeited by pleading guilty … , and also because the court increased the sentence, but failed to inquire into whether defendant wished to withdraw his consent to the appeal waiver … . …

A search warrant application must include “[a] statement that there is reasonable cause to believe that property of a kind or character described in [CPL] 690.10 may be found in or upon a designated or described place” (CPL 690.35 [3] [b]). Personal property that “[c]onstitutes evidence or tends to demonstrate that an offense was committed in this state” is subject to seizure (CPL 690.10 [4]). “Offense” is defined as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state” (Penal Law § 10.00 [1]). Further, a “[v]iolation” is defined as “an offense . . . for which a sentence to a term of imprisonment in excess of [15] days cannot be imposed” (Penal Law § 10.00 [3]).

Defendant is correct in asserting that the Penal Law prohibitions against the possession of controlled substances and marihuana do not specifically include synthetic cannabinoid. However, the Sanitary Code makes it “unlawful for any individual . . . to possess, manufacture, distribute, sell or offer to sell any synthetic phenethylamine or synthetic cannabinoid,” with exceptions not applicable here (10 NYCRR 9-1.2). Significantly, “[t]he provisions of the [S]anitary [C]ode shall have the force and effect of law and the non-compliance or non-conformance with any provision thereof shall constitute a violation punishable on conviction for a first offense by a fine not exceeding [$250] or by imprisonment . . . not exceeding [15] days, or both” (Public Health Law § 229 …). It follows that, by definition, a search warrant may be issued for the alleged possession of synthetic cannabinoids … . People v Morehouse, 2020 NY Slip Op 03048, Thrid Dept 5-28-20

 

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PLAINTIFF’S COUNSEL’S REMARKS DURING SUMMATION DEPRIVED DEFENDANT RESIDENTIAL HEALTH CARE FACILITY OF A FAIR TRIAL; OVER $1 MILLION JUDGMENT IN THIS NEGLIGENCE/PUBLIC-HEALTH-LAW ACTION REVERSED (SECOND DEPT).

The Second Department, reversing the over $1 million judgment in this negligence and Public-Health-Law-2801-d violation case, determined plaintiff’s counsel’s remarks in summation required a new trial. Plaintiff’s decedent, who was at risk for falling, fell after getting up from a wheelchair at defendant residential health care facility and ultimately died:

“[L]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” … . “The interest of justice thus requires a court to order a new trial where comments by an attorney for a party’s adversary deprived that party of a fair trial or unduly influenced a jury” … .

Here, during summation, the plaintiff’s counsel improperly appealed to the passion of the jurors by characterizing the defendant as a “corporation” that has “two lawyers,” a “tech person,” “general counsel,” and “video people.” Counsel also improperly accused the defendant of willfully depriving the plaintiff of evidence that would have been harmful to the defendant’s case, accused the defendant’s witnesses of having “changed” their testimony after their depositions or pretrial affirmations, which were not in evidence, “because they saw that they couldn’t win,” and improperly argued that the defendant failed to call certain witnesses, who were not under the defendant’s control. Thus, “the comments of the plaintiff[‘s] counsel . . . were not isolated, were inflammatory, and were unduly prejudicial. These prejudicial comments so tainted the proceedings as to have deprived the defendant . . . of a fair trial” … . Nieves v Clove Lakes Health Care & Rehabilitation, Inc., 2020 NY Slip Op 00422, Second Dept 1-22-20

 

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PLAINTIFF WAS ASSAULTED BY ANOTHER PATIENT IN DEFENDANT LONG-TERM CARE FACILITY; THE MEDICAL RECORDS OF THE ASSAILANT, WHO WAS NOT A PARTY, WERE PRIVILEGED AND NOT DISCOVERABLE; THE INCIDENT REPORTS PERTAINING TO THE ASSAULT WERE NOT SHOWN BY THE DEFENDANT TO BE PRIVILEGED PURSUANT TO THE PUBLIC HEALTH LAW AND WERE THEREFORE DISCOVERABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the assailant’s medical records were privileged, but any incident reports pertaining to the assault were not. Plaintiff alleged she was attacked while a long-term resident of defendant long-term health care facility. The assailant in this third-party assault action was not made a party:

We agree with the Supreme Court’s determination denying that branch of the plaintiffs’ motion which sought disclosure of the assailant’s admission chart. The assailant is not a party to the action, his medical records were subject to the physician-patient privilege, and he has not waived that privilege … .

However, the Supreme Court should have granted that branch of the plaintiffs’ motion which sought disclosure of all incident reports related to the assault. Pursuant to Education Law § 6527(3), certain documents generated in connection with the “performance of a medical or a quality assurance review function,” or which are “required by the Department of Health pursuant to Public Health Law § 2805-l,” are generally not discoverable … . The defendant, as the party seeking to invoke the privilege, has the burden of demonstrating that the documents sought were prepared in accordance with the relevant statutes … . Here, the defendant merely asserted that a privilege applied to the requested documents without making any showing as to why the privilege attached. Accordingly, the incident reports related to the assault were subject to disclosure. DeLeon v Nassau Health Care Corp., 2019 NY Slip Op 08989, Second Dept 12-18-19

 

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PUBLIC HEALTH LAW 230 DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR MALICIOUS REPORTING OF INSURANCE FRAUD BY A PHYSICIAN TO THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined that Public Health Law 230 (11) (b) does not create a private right of action. Plaintiff surgeon provided medical care to four patients injured in an automobile accident and submitted claims for payment to the defendant insurer. The insurer fully or partially denied the claims and then filed complaints against plaintiff with the Office of Professional Medical Conduct (OPMC) alleging insurance fraud. The OPMC declined to discipline plaintiff. Plaintiff then sued defendant insurer for bad-faith and malicious reporting in violation of Public Health Law 230 (11) (b). The Court of Appeals noted a split of authority in the 1st and 2nd Departments re: whether a violation of this statute give rise to a private right of action:

Public Health Law § 230 (11) (b) does not expressly create a cause of action authorizing licensees to commence civil litigation against a complainant that files an allegedly bad-faith and/or malicious report with OPMC (compare Public Health Law § 230 [10] [j] [creating an express right to commence a CPLR article 78 proceeding in certain instances]). Consequently, “recovery may be had . . . only if a legislative intent to create such a right of action is fairly implied in the statutory provision[] and [its] legislative history” … . …

We have consistently identified three “essential factors” to be considered in determining whether a private right of action can be fairly implied from the statutory text and legislative history: “(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme”… . Critically, all three factors must be satisfied before an implied private right of action will be recognized … . Applying these factors here, we conclude that the legislature did not intend to create a right of action under Public Health Law § 230 (11) (b). Haar v Nationwide Mut. Fire Ins. Co., 2019 NY Slip Op 08445, CtApp 11-21-19

 

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THE NYC DEPARTMENT OF SOCIAL SERVICES DOES NOT HAVE THE AUTHORITY TO RECOVER MEDICAID OVERPAYMENTS FROM PERSONAL CARE SERVICE PROVIDERS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn. over a two-justice dissent, determined that The City of New York Human Resources Administration Department of Social Services (HRA) does not have the authority to audit and recover overpayments of funds provided pursuant to the Health Care Reform Act (HCRA) from personal care service providers such as petitioner People Care Incorporated d/b/a Assisted Care:

The determinative issue on this appeal is not whether the HCRA funds were denominated as “Medicaid rates of payment” or “Medicaid rate adjustments” in the statute and the MOU [memorandum of understanding]. Rather, the issue presented here is whether, under the terms of the 2001 contract, Public Health Law § 2807-v(1)(bb)(i) and the MOU superseded the provisions of that contract as to the auditing and recoupment of HCRA funds. * * *

… [N]either Public Health Law § 2807-v(1)(bb), as the governing statute, nor the MOU between DOH [NYS Department of Health] and HRA, entered into pursuant to that statute, contains any language delegating DOH’s auditing and recoupment authority to HRA or any other agency. Matter of People Care Inc. v City of New York Human Resources Admin., 2019 NY Slip Op 05756, First Dep 7-23-19

 

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STATEMENTS MADE IN CONNECTION WITH A HOSPITAL’S QUALITY ASSURANCE INVESTIGATION ARE PRIVILEGED PURSUANT TO THE EDUCATION LAW AND PUBLIC HEALTH LAW; THE STATEMENTS ARE NOT DISCOVERABLE IN THE MEDICAL MALPRACTICE ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a concurrence, and refusing to follow the 2nd Department, determined certain statements made in connection with a hospital’s (SUNY Upstate’s) quality assurance investigation were privileged pursuant to the Education Law and Public Health Law and therefore were not subject to discovery in this medical malpractice action:

“The New York State Education Law shields from disclosure the proceedings [and] the records relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program’ ” ( … see Public Health Law § 2805-m [2]). Although there is an exception to that privilege, “the exception is narrow” … and is limited to “statements made by any person in attendance at such a [quality assurance] meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting” (Education Law § 6527 [3]; see Public Health Law § 2805-m [2] …).

Here, the “statements” at issue were provided shortly after the incident and were obtained as part of SUNY Upstate’s quality assurance investigation. The statements, however, were not made at a quality assurance committee meeting; nor were they made in response to any inquiries initiated by the committee … . None of the defendants appeared at any committee meeting. Thus, we agree with SUNY Upstate and defendants that plaintiff’s proposed construction of the statutory exception would not give any practical effect to the phrase “in attendance,” but rather would render that phrase meaningless … . Further, the Court of Appeals specifically instructed that the exception is “narrow and limited to statements given at an otherwise privileged peer review meeting” … .  Following plaintiff’s proposed construction “would extend the [statutory] exception to a point where it would swallow the general rule that materials used by a hospital in quality review and malpractice prevention programs are strictly confidential” … . Nowelle B. v Hamilton Med., Inc., 2019 NY Slip Op 05464, Fourth Dept 7-5-19

 

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