Medical & Nursing Home Liability Pointers - 05/27/2022

May 27, 2022
A Note from Chris Potenza

As we approach the Memorial Day weekend, we would like to take a moment to remember those who sacrificed their lives in service of our country. We also offer our deepest sympathies to all the families who lost loved ones in the recent tragedies in our own hometown of Buffalo, as well as Ulvade, Texas. If you are looking for a way to help the victims, their families, and the community impacted, please consider contributing to the Buffalo 5/14 Survivors Fund. One hundred percent (100%) of the contributions donated to this fund will go directly to victims and survivors of this atrocity. 

Our firm has more pleasant news to share as we announce more additions to our Medical & Nursing Home Defense Team. Last month, we announced that Steve Sorrels was returning to Hurwitz & Fine, bringing over two decades of experience in the areas of medical malpractice, nursing home litigation, products liability, municipal law, transportation negligence and premises liability. This month, we are thrilled to announce that another immensely talented litigator, Elizabeth Midgley, has joined our team as well. Liz is a trial attorney with an impressive resume and works primarily in the areas of medical malpractice and the defense of skilled nursing, long term care, and assisted living facilities, as well premises liability, products liability and transportation negligence. She has hit the ground running with a special column this month offering her insight on recent developments in litigation over COVID-19 Immunity and the Emergency Disaster Treatment Protection Act (“EDTPA”). 

We also warmly welcome Jonathan Schutrum an Associate Attorney. Jon is a 2014 Syracuse University College of Law and brings over half a decade of medical malpractice and nursing home litigation experience. Jon also jumped right into the mix writing this month’s case reviews. 

I am also extremely happy and proud to announce that we have promoted three attorneys to Members: Anastasia McCarthy (litigation), Brian Barnas (insurance coverage), and Brian Webb (litigation). While each of them has proven to be hard-working, dedicated, and skilled at their craft, they are all truly a pleasure to work with and make the future of our firm that much brighter. 

There was an important piece of litigation legislation that passed this week as Governor Kathy Hochul signed into law the Adult Survivors Act, which renews access to judicial relief for adult survivors of sexual assault. The new law implements a one-year lookback window for individuals who were sexually assaulted as adults to file claims against their abusers, even if the statute of limitations has already expired. Our own experts in the field, Anastasia M. McCarthy, Esq. and Michael J. Williams, Esq., offer their insights. Hurwitz & Fine’s Child Victims Act and Sexual Misconduct Coverage and Defense Team represents local, national and international organizations—and individuals—in the defense of Child Victims Act cases and anticipates that there will be a number of Adult Survivors Act cases brought in the near future. We also help guide insurers and institutional clients, alike, through the complex array of issues involving insurance coverage for abuse cases, including issues concerning lost or historical policies, late notice, policy towers, and other related coverage matters. 

Thanks again to Jonathan Schutrum for this month’s array of case reviews, mostly from the Second Department, including:  

  • First Department addresses whether an internist unfamiliar with abdominal surgery is qualified to opine on an appendectomy;
  • Second Department finds that conflicting expert opinions create a question of fact in medical malpractice claim alleging that medication was improperly administered during her hospitalization at the defendant hospital;
  • Second Department finds that the statute of limitations is tolled while a motion to serve a late notice of claim pending;
  • Second Department sets aside a defense jury verdict and ordered a new trial where defendant’s own testimony established departures from good and accepted medical practice;
  • Second Department finds that home health care aide was under no duty to continuously monitor elderly plaintiff injured in overnight fall;
  • Second Department finds that change of venue motion based on a forum selection clause contained in an admission agreement was improper because it was filed outside the county in which the action was commenced;

As a reminder, we are pleased to be offering in-house (webinar) training on all the new legislative and regulatory changes impacting the nursing home and long-term care communities, as well as the impact of Covid-19 immunity statutes on personal injury claims. Please contact us directly to schedule a one-hour interactive training session. Click on the links below for printable and downloadable resource guides on these topics as well: 

COVID-19 Immunity and EDTPA Update By: Elizabeth M. Midgley [email protected]

I am very excited to join Hurwitz & Fine and our outstanding Medical & Nursing Home Defense Team.  I am very eager to work with our very talented and diverse group of lawyers in defending our clients statewide. I am also pleased to give an update on a recent favorable defense decision on the applicability of the EDTPA in a nursing home COVID-19 death claim.   

In Saltanovich v. Sea View Hospital Rehabilitation Center et al., Index No. 151312-2021 (May 17, 2022), the Richmond County Supreme Court ruled that the EDTPA repeal was not retroactive and plaintiff’s allegations of gross negligence were insufficient to sustain the claim. 

The defendant nursing home moved for an order pursuant to CPLR Section 3211(a)(7) and New York Public Health Law Sections 3080-3082 to dismiss the case, claiming immunity from liability.  The care and treatment at issue occurred while the decedent was a resident in a long-term care facility.  The complaint alleges negligence surrounding infection prevention and control policies and procedures, training, and enforcement; various claims of negligence surrounding COVID-19; and other claims surrounding the care and treatment of the long-term care resident.  Defendants moved to dismiss claiming immunity under Executive Orders 202 and 202.10 and the Emergency or Disaster Treatment Protection Act, Article 30-D.  In analyzing the statute and its legislative intent, the Court found that the repeal of the EDTPA was not retroactive.  In other pertinent part, the Court found that “a finding of gross negligence requires an almost complete lack of any diligence or care”, and that the facts as alleged by the plaintiff did not rise to the level of gross negligence, willful, or intentional conduct.  Accordingly, the Court granted defendants’ motion to dismiss with prejudice. 

I have been following this case closely as the facts and arguments are very similar to a Motion to Dismiss that was decided in favor of one of our clients in May 2021 in Erie County. In our case, the court granted our Motion to Dismiss where we were able to prove that our clients had immunity under Executive Orders 202 and 202.10 and the EDTPA, that  the repeal of the EDTPA was not retroactive.  Plaintiff has appealed the decision and it will be heard by the 4th Department in September. Stay tuned! 

Latest News & Developments

Dozens of Nursing Homes Challenge State’s Minimum Staffing Rules 

LeadingAge New York, an organization representing dozens of not-for-profit nursing homes filed a lawsuit this week seeking to block the state from enforcing minimum staffing requirements, including rules requiring that each client receive at least 3.5 hours of direct care per day. A spokesperson for LeadingAge said staffing in nursing facilities was problematic before the pandemic and hiring has become even more difficult during the past two years. Moreover, since 90% of the care in nursing homes is funded by the government through Medicaid and Medicare, there’s no ability to charge more for resident care to meet the increased costs of staffing where the government sets the rates.  

The lawsuit contends that the mandates are an illegal and unconstitutional scheme that imposes upon non-profit and public nursing homes an unfunded arbitrary and infeasible mandate, which could cost approximately $1.8 Billion statewide. It is at least the second lawsuit challenging staffing requirements in the state after a federal lawsuit was filed in Albany challenging that law that will also require facilities to spend at least 70% of their revenue on direct resident care. That lawsuit claims the requirements violate the Constitution as an improper “taking” of private property for a public purpose and run counter to the Supremacy Clause by confiscating federal dollars flowing to nursing homes through Medicare. We will monitor both lawsuits and provide readers with updates as they occur.  

Concerns Raised Over Waiving Training Requirements for NY Nurse Aides 

When the pandemic began, the federal government waived certain certification requirements for nurse aides to help with healthcare shortages experienced nationwide. As those waivers are set to end, New York and other states are being permitted to “grandfather” in those nurse aides without them having met the pre-pandemic requirements. As part of the grandfathering process, New York is granting credit for nearly half of nurse aides' required training hours if they’ve worked for either 30 days or 150 hours.  

Opponents say a return to mandated training hours would help both staff and residents experiencing underlying burnout issues and will help nurse aides build a range of skills to better care for residents. Backers of the measure say relaxing training standards would help get more people into the healthcare industry. The bill, now in Congress, is yet to be voted on by either the House or Senate. DOH Updates Hospital and Nursing Home PPE Stockpile Requirements 

Last month, the New York State Department of Health added new provision to the hospital and nursing home personal protective equipment (PPE) stockpile requirements included in the State’s Surge and Flex emergency rule. The provisions explicitly disqualify expired PPE from being counted toward fulfillment of a health care facility’s PPE stockpile obligations. The requirements further provides that facilities should follow appropriate storage conditions outlined by the manufacturers, and inventory should be rotated through regular usage and replaced to maintain a consistent readiness level. New York’s healthcare facilities should review and adjust their existing stockpile inventory to remain in compliance with the regulations’ requirements. 

Governor Hochul Signs Legislation Strengthening Women’s Health Equity 

Earlier this month, Governor Kathy Hochul signed legislation S.7628/A.8536 that adds an additional appointed member to the Public Health and Health Planning Council as a representative of women’s health service providers. This ensures that public health decisions involving women’s health or facilities specializing in the care of women will be advised by those with appropriate expertise.  

The bill signing is one of a series of measures the Governor has taken to protect and strengthen access to reproductive healthcare in New York. The Enacted Budget codified a requirement that all insurance plans cover abortion services and expanded the Family Planning Grant program, which supports community reproductive health providers across the state. The budget also included measures to reduce racial disparities in maternal mortality and morbidity, including an expansion of postpartum Medicaid coverage from 60 days to one-year postpartum for all individuals, regardless of immigration status, and improved access to prenatal and postpartum services, including expanded nutrition services, services by Licensed Clinical Social Workers, peer counseling, and patient navigation services.   

Analysis of Recent Court Decisions
April 26, 2022 Newell v. New York City Health & Hospitals Corp.                Appellate Division, First Department           Affidavit of internist unfamiliar with abdominal surgery insufficient to defeat defendant’s showing of entitlement to summary judgment.

Plaintiff commenced an action for medical malpractice and lack of informed consent alleging that the defendant surgeon departed from accepted standards in performing plaintiff's appendectomy procedure. In opposition to a motion for summary judgment brought by the defendant, plaintiff submitted the affidavit of a physician practicing internal medicine.  

As held by the First Department, Plaintiff’s expert failed to establish familiarity with surgery in general or abdominal surgery in particular. The affidavit failed to raise a triable issue of fact, as the expert was not qualified to render an opinion regarding defendant’s performance of the appendectomy. Similarly and with respect to plaintiff’s lack of informed consent claim, the expert was not qualified to render an opinion on whether defendants' disclosures of the risks inherent in the procedure were adequate. Summary judgment in favor of the defendant was therefore upheld.  

April 20, 2022  Ahmed v.  New York City Health & Hospitals Corp.         Appellate Division, Second Department       Statute of limitations tolled while motion to serve a late notice of claim pending.

Plaintiff commenced a medical malpractice action relating to her treatment at the defendant Elmhurst Hospital Center, which was operated by the defendant New York City Health and Hospital Corporation.  

On June 17, 2019, the plaintiff filed an order to show cause for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5). On June 20, 2019, the court declined to sign the order to show cause because a signature page was not appended to the notice of claim. The plaintiff then re-submitted her papers on June 28, 2019, this time including a signature page. The court signed the order to show cause but ultimately denied the motion, determining that it lacked discretion to grant leave to serve a late notice of claim because the statute of limitations had expired on June 26, 2019, two days before the filing of the June 28, 2019 motion.  

Reversing the trial court’s decision, the Second Department applied CPLR 204(a), which provides that the statute of limitations is tolled while a motion to serve a late notice of claim is pending. There were three days between the filing of the plaintiff's initial order to show cause and the Supreme Court's determination not to sign it, and that three-day period did not count towards the statute of limitations. As the June 28, 2019 motion was filed only two days after the statute of limitations expired, the motion was timely upon application of the three-day toll. 

May 4, 2022  Yac v. County of Suffolk           Appellate Division, Second Department      Verdict set aside and new trial ordered where defendant’s own testimony established departures from good and accepted medical practice. 

Following trial in a medical malpractice and wrongful death action, the jury returned a verdict in favor of the defendant, finding that the defendant did not depart from good and accepted medical practice in the treatment of the decedent. Thereafter, the plaintiff moved to set aside the verdict pursuant to CPLR 4404(a) and for judgment as a matter of law. Supreme Court granted plaintiff's motion, setting aside the verdict as contrary to the evidence and ordering a new trial.  

On appeal, the Second Department ruled that the Supreme Court properly set aside the verdict as contrary to the weight of the evidence. Specifically, the court found that the defendant’s own testimony established that treatment of the plaintiff departed from good and accepted medical practice. The defendant failed to ascertain relevant information as to the history and nature of the plaintiff’s condition and failed to consider differential diagnoses. Further, plaintiff's expert witnesses opined that the decedent's vital signs required further testing to rule out potentially life-threatening conditions.  

May 10, 2022 Kuhfeldt v. New York Presbyterian/Weill Cornell Med. Center  Appellate Division, First Department Expert affirmation sufficient to defeat motion for summary judgment on medical malpractice claim while failing to raise triable issues of fact on claim for negligent hiring and supervision.

Plaintiff commenced an action for medical malpractice alleging that medication was improperly administered during her hospitalization at the defendant hospital. In addition to malpractice, the plaintiff alleged negligent hiring and supervision of hospital staff. 

Considering defendant’s motion for summary judgment, the First Department found that the defendant met its prima facie burden of demonstrating the absence of medical malpractice. Defendant's expert opined that the prescription, dosage, administration, and monitoring of the medications at issue were all appropriate and the benefits of the medication outweighed the potential risks.  

However, the affidavit of plaintiff’s expert offered conflicting opinions with respect to the standard of care and was sufficient to raise issues of fact. Although not an infectious disease specialist, as a licensed pharmacist, pharmacologist, and toxicologist, as well as a physician, plaintiff’s expert was qualified to opine on issues related to drug administration, risks, and monitoring. Thus, defendant’s motion was denied with respect to the medical malpractice cause of action.  

In contrast, the court granted summary judgment dismissing plaintiff’s negligent hiring and supervision claims. In doing so, the court concluded there was insufficient evidence that defendant "knew or should have known" of the treating physician's "propensity for the sort of conduct which caused the injury.”

May 11, 2022 Tanzman v. Ghislaine Appellate Division, Second Department Home health care aide under no duty to continuously monitor elderly plaintiff injured in overnight fall. 

Plaintiff’s decedent, who was 87 years old at the time, claimed to have sustained injuries after falling in her bedroom at approximately 2:30 a.m. At the time of the incident, a home health aide was assigned to care for the decedent and was in a separate bedroom provided by the decedent's family during the overnight hours. Plaintiff brought an action against the defendant home health care agency alleging negligence, wrongful death, medical malpractice and lack of informed consent. Plaintiff claimed that the aide had a duty to monitor the decedent throughout the night, and that the decedent’s injuries were proximately caused by her failure to do so.  

In affirming an award of summary judgment in favor of the defendant, the Second Department rejected the plaintiff’s contention, finding that the aide did not have a duty to continuously monitor the decedent overnight. In addition, the court found no evidence that there was a physician-patient relationship between the home health care aid and the decedent and, accordingly, summary dismissal of the plaintiff’s medical malpractice and lack of informed consent claims was proper. 

May 18, 2022 Allen v. Morningside Acquisition I, LLC Appellate Division, Second Department Change of venue found improper when motion filed outside the county in which the action was commenced.

In an action alleging personal injuries and violation of Public Health Law § 2801, defendant moved to change the venue of the action from Bronx County to Nassau County. The trial court granted the motion based on a forum selection clause contained in an admission agreement signed by the plaintiff's great-grandson.  

Reversing the trial court, the Second Department found a change in venue to be improper, as the defendant did not comply with the procedures set forth in CPLR 511(a) and (b). Those provision required the defendant to serve a written demand prior to moving for a change of venue and then file a motion in the county in which the objectionable venue was laid. The defendant’s motion was improper as it was brought in Nassau County, as opposed to Bronx County where the action was originally filed.  

Your Medical Malpractice & Nursing Home Defense Team is here to answer your questions: Patrick B. Curran, Esq. ([email protected]) V. Christopher Potenza, Esq. ([email protected]) Elizabeth M. Midgley, Esq. ([email protected]) Stephen M. Sorrels, Esq. ([email protected] Kara M. Eyre, Esq. ([email protected] Jonathan J. Schutrum ([email protected])
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