Medical & Nursing Home Liability Pointers - 01/27/2023

January 27, 2023
A Note from Pat Curran Forty years is a long time – the better part of a lifetime.  Over the past 40 years, I have been fortunate to do what I have always wanted to do. I have been a trial lawyer, usually defending people accused of negligence and malpractice.  There have been thousands of cases including hundreds that were ready for trial and more than 75 that went to a jury verdict.  In all those cases, I firmly believed the allegations against my clients were unfounded or exaggerated.  Those who are accused deserve to be heard.  For every lawyer who is eager to sue people, there is a lawyer who is equally or more dedicated to presenting a defense – an explanation, as I like to think of it.  I have been very fortunate to work with amazing trial lawyers, paralegals and support staff over 40 years, particularly at Hurwitz Fine P.C. for the past six years.  It has been a privilege to work with, and get to know, many of you.  Thank you for allowing me to handle your legal disputes.  I am moving on to hopefully an even better part of my lifetime as my wife and I enjoy more time together, visit our children and granddaughter, and dabble in those hobbies I always wanted to try.  As Special Counsel to Hurwitz Fine, I am scaling back, but will still be available to assist when needed.  I am very proud of the work we do, and very excited to see the continued growth of this practice group with the strong leadership team of Liz Midgley, Steve Sorrels, and Chris Potenza.  Moving on to the important legal news, we have been closely monitoring the proposed Grieving Families Act, legislation that would completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for a fatality.  While the bill passed both the New York Senate and Assembly in June, and was delivered to the Governor at the very end of 2022, the rumor is that it will not pass in its current from.  It would appear that the many voices in opposition were heard, although we believe there is an appetite from the Governor to see some version of the bill pass which does not include retroactivity to pending claims, and addresses some of the procedural questions and clarity on the definition of family members who can assert a claim for damages.  In other court news, Med Mal attorney Beth Adymy discusses the decision by the New York Litigation Coordination Panel to coordinate nursing home COVID-19 claims. In the article, Beth discuss how the order leaves many questions unanswered, and litigants confused over its scope. While the intent of the order is to facilitate the consistent and efficient resolution of multiple lawsuits, from a variety of venues, for all pre-trial proceedings for claims against nursing homes, skilled nursing facilities, and similar health facilities alleging negligence in response to the COVID-19 pandemic, critical questions remain regarding the parameters of the cases coming under the statewide coordination order, including such fundamental questions as how to define the timeframe of the “COVID-19 pandemic” and whether the order encompasses all cases that arose during the pandemic, or only those injury/death claims that are specifically COVID related. Lastly, on November 24, 2022, New York’s Adult Survivors Act’s lookback window opened, which provides a one-year opportunity for adult survivors of sexual abuse to bring civil actions previously barred by the statute of limitations. We do have some interesting case recaps this month:
  • First Department affirms summary judgment to defendant in dental practice claim;
  • First Department holds that treating surgeon can be held responsible for performance of surgery and injury caused by assisting surgeon;
  • First Department affirms protective order precluding disclosure of documents responsive to plaintiff’s demands regarding postoperative infections and gas gangrene infections at hospital;
  • Second Department holds that objection to unsworn expert affidavit on a dispositive motion is waived if not raised in responding papers. 
  • Second Department holds that the administration of an injection (allergy shot) to the wrong patient is a claim for medical malpractice, not ordinary negligence.
  • Second Department affirms judgment in favor of Ob/Gyn where radiologist’s follow-up recommendation was followed.
  • Second Department vacates judgment and orders a new trial, finding the verdict to be against the weight of the evidence.
Analysis of Recent Court Decisions
November 22, 2022         Hedvat v Klein   Appellate Division, First Department Summary Judgment affirmed in dental malpractice case. The First Department affirmed the order granting defendant’s motion for summary judgment in this dental malpractice action. Defendant met his prima facie burden by demonstrating that he “did not depart from good and accepted dental practices” in treating the plaintiff, or, if there was such a departure, that it was not a proximate cause of the plaintiff’s injuries. Once the defendant met this burden, plaintiff was obligated to rebut defendant’s prima facie showing with competent evidence demonstrating that the defendant departed from accepted dental practice. The First Department found that in this case the plaintiff’s general allegations of dental malpractice, which were conclusory and unsupported by competent medical evidence, were insufficient to defeat defendant’s motion. November 29, 2022         Bhuiyan v Germain Appellate Division, First Department Treating surgeon can be held responsible for performance of surgery and injury caused by assisting surgeon. In this medical malpractice action, plaintiffs alleged that the defendant treating physician negligently performed hysterectomy surgery resulting in a severed left ureter. The defendant treating physician and her practice group moved for summary judgment on the ground that another surgeon who assisted in the surgery was responsible for the left side of the surgery. The Supreme Court granted summary judgment in favor of the treating physician. The Second Department reversed, citing the plaintiffs’ expert assertion that, as the injured plaintiff’s treating physician and the primary surgeon, she was ultimately responsible for the outcome of the surgery. Moreover, the nonparty physician who was on the left side had scrubbed out before the end of the surgery, and the treating physician was responsible for assessing injuries prior to closing the injured plaintiff. November 29, 2022         Langual v Sarwahi Appellate Division, First Department Protective order granted precluding disclosure of hospital infection history records. The First Department held that the trial court properly granted the branch of defendants’ underlying motion for a protective order precluding disclosure responsive to plaintiff’s demands for documents regarding postoperative infections and gas gangrene infections at Montefiore during the year of, and five years prior to, plaintiff’s treatment there, as well as incident reports concerning plaintiff’s care. The information is privileged pursuant to Education Law § 6527(3) and the corresponding sections of the Public Health Law which shield 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.” November 23, 2022         Hall v Bolognese Appellate Division, Second Department Objection to unsworn expert affidavit waived. Defendants met their prima facie burden of establishing their entitlement to summary judgment dismissing the plaintiffs’ complaint.  In opposition, the plaintiffs offered  the unsworn affidavit of a board-certified neuro-surgeon. By failing to object to the affidavit as being unsworn in responding to the plaintiffs’ papers before Supreme Court, the defendants waived that objection and the Second Department concluded the affidavit was otherwise sufficient to raise triable issues of fact and reversed the order granting summary judgment in the defendants’ favor. December 7, 2022            Rivera v Advanced Allergy & Asthma Assessment & Diagnostics Appellate Division, Second Department Plaintiff given allergy shot intended for a different patient – negligence or medical malpractice? The plaintiff allegedly was injured when she was given an allergy shot intended for another patient by an employee of the defendants Advanced Allergy & Asthma Assessment & Diagnostics, P.C., and Charles A. Shapiro (hereinafter together the defendants). The defendants moved for summary judgment dismissing the complaint insofar as asserted against them as time-barred. The Second Department agreed that the administration of the injection involved a matter of medical science or art requiring special skills not ordinarily possessed by lay persons. The gravamen of the entire complaint was the defendants’ alleged negligence in furnishing medical treatment, not their failure in fulfilling a different duty. Therefore, the complaint, sounding in medical malpractice and not ordinary negligence, was barred by the shorter statute of limitations for malpractice. December 7, 2022            Paglinawan v Jeng   Appellate Division, Second Department Summary Judgment affirmed in favor of plaintiff’s Ob/Gyn where radiologist’s follow-up recommendation was followed. Screening mammogram ordered by the defendant, plaintiff’s ob/gyn, was reported as incomplete and radiologist recommended a diagnostic mammogram be performed in follow up in 6 – 12 months. Thirteen months later the plaintiff went for the diagnostic mammogram and some incidental findings were reported as “probably benign,” but it was recommended that a focused ultrasound be obtained in 6-12 months in follow up. Prior to getting the ultrasound done, the plaintiff returned to the defendant’s office with complaints including breast swelling and pain. Defendant advised plaintiff to see a breast surgeon immediately and gave her three referrals. She was found to have Stage 2 breast cancer and sued the defendant. Defendant moved for summary judgment. In support of his motion, the defendant submitted an affirmation of an expert board-certified obstetrician-gynecologist. The expert opined that the defendant did not depart from the applicable standard of care in his treatment of the plaintiff.  Specifically, the expert opined that the defendant did not depart from the standard of care in adhering to the recommendation of the radiologist who interpreted the May 2015 radiological studies and who recommended follow-up studies within 6 to 12 months. The expert further opined that the defendant did not depart from the applicable standard of care with respect to his communications with the plaintiff as to those test results. Based on this expert affirmation, the defendant established his prima facie entitlement to summary judgment dismissing the cause of action alleging medical malpractice insofar as asserted against him. In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs’ expert opined that the defendant should have recommended certain follow-up testing within “no more than” six months of the diagnostic radiological tests. The expert based that opinion, in part, on plaintiff’s family history of colon cancer. However, the expert failed to set forth the basis for his opinion that a patient with a family history of colon cancer should be monitored for breast cancer more closely, and the expert did not specifically state that the relevant standard of care required such monitoring. Accordingly, the order granting summary judgment dismissing the cause of action alleging medical malpractice insofar as asserted against defendant ob/gyn was affirmed.   December 14, 2022          Osorio v New York City Health & Hosps. Corp Appellate Division, Second Department Second Department vacates judgment and orders a new trial, finding the verdict to be against the weight of the evidence. A good primer on a CPLR 4404 motion for an order setting aside a verdict and entering judgment in favor of the movant versus a CPLR 4404 motion for an order setting aside a verdict as against the weight of the evidence and granting a new trial in a case in which the jury found in favor of the plaintiff and awarded damages. In this case the trial court granted the motion to set aside the verdict and entered judgment in favor of the defendants. The plaintiff appealed and the Second Department vacated the judgment entered in favor of the defendants, reinstated the plaintiff’s complaint and ordered a new trial, finding the verdict to be against the weight of the evidence. The Second Department observed that in reviewing a judgment of the Supreme Court, the Appellate Division has the power to determine whether a particular factual question was correctly resolved by the trier of facts. If the original fact determination was made by a jury, as in this case, and the Appellate Division concludes that the jury has made erroneous factual findings, the court is required to order a new trial, since it does not have the power to make new findings of fact in a jury case.  The court concluded that the mere fact that some testimony created a factual issue does not deprive the Appellate Division of the power to intervene in an appropriate case.
Hurwitz Fine's Medical Malpractice & Nursing Home Defense Team is here to answer your questions:

Elizabeth M. Midgley, Esq. ([email protected]) V. Christopher Potenza, Esq. ( Stephen M. Sorrels, Esq. ([email protected]

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