Medical & Nursing Home Liability Pointers - 01/28/22

January 28, 2022
 A Note from Chris Potenza
The new year started off with a bang as New York Governor Kathy Hochul signed into law many important pieces of legislation that directly impact New York litigation, with many others still on the horizon. 

As a reminder, we are pleased to offer 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:
The piece of recently enacted legislation that could have the most disparate impact on malpractice, nursing, and long-term care claims is S7093, which amends the rules of evidence with the addition of a new CPLR 4549 to permit the admission of an opposing party's statement if made by an agent or employee within the scope of and during the existence of that relationship. As addressed by litigation attorney Nick Heintzman, this is a significant amendment to New York's hearsay exception which will now more closely follow the approach of Federal Rule of Evidence 801(d)(2)(D). Under the prior common law, such a hearsay statement was admissible only upon a showing that the declarant had express authority to speak on behalf of the company (typically management level). Now, apparently the statement of any employee (nurse’s aide, clerk, janitor, etc.) can be admissible as a party admission without being subject to cross-examination.

Another piece of proposed litigation that is gaining traction again this year is the “Grieving Families Act” (S.74-A/A.6770),  which would amend the Wrongful Death Statue codified in the Estates, Powers, and Trust Law, to permit the families of wrongful death victims to recover compensation for their emotional anguish, not just pecuniary loss.  The bill has been sent to Judiciary Committee with an important new amendment to extend the statute of limitation for wrongful death from two years to three and a half years from the date of fatality.  This proposed legislation is representative of the shift in opinion to expand damages available for death claims in New York.  In February 2021, the Court of Appeals in Greene v. Esplanade, expanded the recovery for emotional damages to grandparents who are in the zone of danger and witnessed the death of a grandchild.  There has now been another case expanding damages in a death claim.  Please read our case review below of Hauser v. Fort Hudson Nursing Center, in which the Third Department held that a death claim against a nursing home arising from a deprivation of rights pursuant to Public Health Law §2801-d is not limited to pecuniary loss as codified in New York’s Wrongful Death Statute.  We are closely monitoring the status of the “Grieving Families Act,” as well as all other efforts to increase the recoverable damages in wrongful death claims, as they will also have a hugely disparate impact on malpractice, nursing, and long-term care claims by fundamentally altering and expanding the recoverable damages available to a decedent's family.

There is quite a bit more legislative news impacting litigation, the most talked about being the “Comprehensive Insurance Disclosure Act” (“CIDA”), which includes substantial amendments to CPLR §3101(f) and the addition of a new CPLR §3122-b.  Dan Kohane and Ryan Maxwell from our coverage department have put together a concise summary of the requirements for carriers and attorneys.  The most troubling requirements included the disclosure of not only the policy documents, but the insurance application as well, the names of parties who may have previously collected under these policies, and the full contact information for the insurance adjuster responsible for the claim. In response to considerable backlash, substantial modifications in the form of Chapter Amendments were introduced and, from what we are hearing, likely to pass.  The notable revisions include the following:
  • The disclosure requirement would only apply to lawsuits files after 12/31/21 effective date, and not retroactively to pending cases;
  • Disclosures of policies or declarations pages would be required within 90 days after answer is filed, rather than 60 days. Declarations pages may suffice if agreed to by plaintiff, but plaintiff would have option to later request the policies;
  • Disclosure would no longer require the application to be included;
  • Disclosure of contact information for person adjusting the claim would still be required, but only name and email address;
  • TPAs would no longer be required to disclose the name of the person to whom they are reporting;
  • Disclosure would require provision of the total limits available under the policy after accounting for erosion/offsets;
  • The amendments eliminate disclosure of lawsuits that may erode the policy and attorney contact information from such lawsuits;
  • The amendments would eliminate attorney fee disclosure that may have eroded the policy limits;
  • Instead of a broad “ongoing obligation” to ensure disclosures remain accurate and complete, defendants must make reasonable efforts at the time of the filing of the note of issue, entering into negotiations, or mediation to ensure that information is accurate and complete;
  • PIP lawsuits would be expressly excluded.
While these proposed Chapter Amendments are welcome news, unchanged is the need to provide certifications, sworn to by both counsel and the insured, that the coverage information being provided is accurate and complete, and that reasonable efforts have been undertaken, and will be undertaken, to ensure that this information remains accurate and complete. We are closely monitoring the progress of these chapter amendments and will keep everyone apprised of new developments.  We have, in fact, just learned that the Senate passed the amendment bill by a 60-1 margin, and it is now moving to the Assembly.

Remote notarization, which was temporarily adopted during the pandemic, is now a permanent option in New York, with a few new twists as addressed by our corporate real estate attorney Joseph Reynolds. The new law now provides for a fully electronic option, with electronic notarization by the notary to coincide with electronic execution by the signatories to the document.  Also, now only the electronic notary public must be physically located within the State of New York at the time of the execution regardless of the location of the document signer. Under the prior Order, the signatory was required to affirmatively represent to the notary that he/she was physically located in New York State.  There are still kinks to be worked out, including the registration process for electronic notarization with the New York State Secretary of State, so again stay tuned for further updates and developments.

Another problematic and unnecessary piece of proposed legislation, S473, which would have provided for retroactive interest to accrue from the date when summary judgment was initially denied to a plaintiff if that denial was thereafter reversed on appeal and granted in favor of the plaintiff, was rightly vetoed by the Governor.

Our Long Island litigation attorney Cara Pascarella previously reported on a significant decision from the Court of Appeals that debunked a hundred-year-old myth that foreign corporations, by registering to do business in New York, consent to general jurisdiction in New York for adjudication of lawsuits.  While the Aybar case was making its way to the Court of Appeals, the state legislature introduced S7253, which sought to codify that a foreign corporation’s application for authority to do business in the state would constitute consent to jurisdiction, while surrendering of an application would constitute withdrawal of such consent. However, following the Court of Appeals decision in October 2021, holding that a foreign corporation’s registration to do business in the state does not constitute consent to general jurisdiction, the proposed legislation and statutory amendments were vetoed by New York Governor Kathy Hochul on December 31, 2021 and have been tabled.

Our resident “Child Victims Act” expert Anastasia McCarthy advises that the “Adult Survivors Act” S66, which would implement a one-year lookback window for individuals who were sexually assaulted as adults to file claims against their abusers even if the statute of limitation has already expired, has passed the NYS Senate Judiciary Committee.  The bill must still be approved by both the Senate and Assembly, but we are hearing that the new governor may have more of an appetite to see this implemented than the prior administration.

Lastly, the oft-proposed lead-paint exclusion bill, S3079, which seeks to amend the insurance law to prohibit the exclusion of coverage for losses or damages caused by exposure to lead-based paint, is once again percolating and has been referred to Senate Insurance Committee.

Hopefully not lost in all this legislative news are some important decisions throughout the state this past month, most notably the Third Department decision in Hauser v. Fort Hudson Nursing Center, holding that a death claim against a nursing home arising from a deprivation of rights pursuant to Public Health Law §2801-d is not limited to pecuniary loss as codified in New York’s Wrongful Death Statute.  The Second Department addresses the doctrine of ostensible agency under vicariously liability for independent contractor physicians providing emergency room care.  The First Department issued an interesting statute of limitation decision holding that although plaintiff’s motion to extend the time to serve the defendant pursuant to CPLR 306-b was granted, the defendant’s motion to dismiss the complaint as time-barred under CPLR 3211(a)(5) was properly granted as plaintiff could not revive the action by moving to extend the time to serve once the statute of limitations had expired.

As always, please contact us with any comments or questions, and stay tuned for further developments.
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Analysis of Recent Court Decisions
December 23, 2021     Hauser v. Fort Hudson Nursing Center
Appellate Division, Third Department
Third Department holds that a death claim against a nursing home arising from a deprivation of rights pursuant to Public Health Law §2801-d is not limited to pecuniary loss as codified in New York’s Wrongful Death Statute.

Plaintiff, the Executor of the Estate of a former resident at Fort Hudson Nursing Center, Inc., alleged four causes of action against Defendant - for violations of Public Health Law §§2810-d and 2803-c, negligence and gross negligence, conscious pain and suffering, and wrongful death.  Before trial, Defendant objected to the inclusion of questions on the verdict sheet allowing the decedent to directly recover for “physical harm, emotional harm, and death” and for “conscious pain and suffering” pursuant to Public Health Law §§2810-d and 2803-c. 
Defendant asserted that this was improper because recovery for violations of Public Health Law §§2810-d and 2803-c, should be limited in the same way that the common law and wrongful death statutes limit claims of the decedent to those that accrued before death (pursuant to EPTL 11-3.3 [a]) and limit surviving family members claims to “fair and just compensation for pecuniary injuries resulting from the decedent’s death [to those family members]” (EPTL 5-4.3[a]). 
The Third Department disagreed and held that “[t]he express language of Public Health Law §2801-d (1) provides that a nursing home facility is liable to a ‘patient’ for ‘injuries suffered as a result of’ the deprivation of a right or benefit conferred by any contract, statute or regulation, expressly defining ‘injury’ to include ‘death of a patient.’”  Thus, the Court concluded, the decedent has a cause of action against Defendant for his death.  The Court explained that this interpretation met the legislative purpose of both fairly compensating patients for injuries and deterring nursing home abuse.
Defendant’s appeal also asserted that allowing recovery under Public Health Law §2801-d and a pain and suffering claim pursuant to the survivorship statute (EPTL 11-3.2) [b]) impermissibly allowed for double recovery, because such injuries are essentially the same.  The Third Department disagreed, finding that the remedies provided by the Public Health Law are “in addition to and cumulative with any other remedies available to a patient.”  The Court noted that although double recovery is not permitted for a single injury, even if a patient can prove separate causes of action from the same injury, a plaintiff may be able to prove different injuries under separate theories.
December 29, 2021     Sessa v. Peconic Bay Medical Center et al.
Appellate Division, Second Department

Second Department holds that defendant hospital failed to meet its prima facie burden on summary judgment for vicarious liability claims under the doctrine of ostensible agency for actions of independent contractor emergency room physicians.
Plaintiff asserted claims for medical malpractice against Peconic Bay Medical Center, and several physicians who treated her while she was a patient admitted through the Emergency Department, for failure to adequately assess her neurovascular condition, resulting in necrosis and ultimately the amputation of her left arm below the elbow.  Each defendant physician and the hospital moved for summary judgment.  With respect to the defendant physicians, the Second Department held that they met their prima facie burden with the submission of expert proof that their treatment was within the standard of care and was not a proximate cause of the alleged injuries, but plaintiff, with the submission of her own competent expert successfully raised triable issues of fact. 
Plaintiff also sought to hold the hospital responsible for the physicians’ conduct under a vicarious liability theory.  Under the doctrine of respondeat superior, a hospital may be held vicariously liable for the negligence or malpractice of its employees acting within the scope of employment, but not for the negligence or malpractice of an independent physician who is not its employee.  However, courts also recognize the theory of apparent or ostensible agency, in which a hospital or clinic can be responsible to a patient who sought medical care at the hospital or clinic rather than from any particular physician although the physician whose malpractice caused injury to the patient was not an employee of the hospital or clinic.  These claims often turn on whether the patient presented to the facility to generally treat for the injury or presented to treat with the specified physician privately. 
Regarding the vicarious liability claims against defendant Peconic Bay Medical Center, the Court held that for the defendant physician against whom plaintiff failed to allege any facts in the complaint or bill of particulars that supported a vicarious liability claim, the hospital was not obligated to establish the absence of apparent or ostensible agency in order to make a prima facie showing of its entitlement to summary judgment.  However, regarding the defendant physicians against whom plaintiff specifically alleged she obtained treatment from after being admitted to the defendant hospital through the Emergency Department, Peconic Bay Medical Center was obligated, but failed, to eliminate any triable issues of fact that those physicians did not have any apparent or ostensible agency.
As such, the Second Department affirmed the Supreme Court’s denial of each defendant physician’s motion for summary judgment, affirmed the Supreme Court’s granting of the defendant hospital’s motion for summary judgment relative to those claims of vicarious liability for the physician whom plaintiff failed to identify as treating her while she was admitted to the defendant hospital, and reversed the Supreme Court’s granting of the defendant hospital’s motion for summary judgment relative to those claims of vicarious liability for the physicians who allegedly treated plaintiff while admitted to defendant hospital. 
December 14, 2021     Chen v. New York Hospital Medical Center of Queens et al.
Appellate Division, First Department

Plaintiff could not revive malpractice action once the statute of limitations had expired by moving to extend the time to serve under CPLR 306-b.
In an action founding in medical malpractice and lack of informed consent, plaintiff appealed from a decision dismissing her claims against Dr. Deepali Mude who had allegedly performed an improper procedure on Plaintiff’s father in March 2013.
Plaintiff initially commenced the action against several defendants in February 2018, including a “John Doe” later identified as Dr. Mude. While plaintiff asserted that she did not learn of Dr. Mude’s identity until she received records from the defendants in August 2018, plaintiff did not file a supplemental summons and amended complaint substituting Dr. Mude for “John Doe” until September 2018, more than 120 days after the filing of the initial summons and complaint had passed and the time to serve the “John Doe” defendant had expired, and well passed the two-year statute of limitations for the wrongful death claim had already expired..
In March 2019, plaintiff moved for a 60-day extension of time to serve Dr. Mude in the interest of justice and for good cause, which was granted by the Supreme Court. Plaintiff then served Dr. Mude in June 2019, which was within the 60-day extension but four months after the statute of limitations for the medical malpractice claim had expired. Defendant then moved to dismiss the complaint as time-barred under CPLR 3211(a)(5), which was granted.
The Appellate Court affirmed the Supreme Court’s Decision, highlighting that plaintiff failed to demonstrate good cause for the delay in service even though he attempted to serve defendant at her last known home address in October 2018, since he did not thereafter take diligent steps to determine why “John Doe” had not answered. Rather, plaintiff waited to contact Dr. Mude’s insurance carrier after the applicable statute of limitations had expired. As plaintiff failed to timely serve Dr. Mude, he could not revive the action by moving to extend the time to serve once the statute of limitations had expired. Plaintiff’s lack of diligence and the long delay in notifying Dr. Mude of this action caused substantial prejudice to the defendant, and dismissal of the amended complaint was appropriate.
Hurwitz & Fine's Medical & Nursing Home Defense Team
With over 50 years of combined experience in defending doctors, nurses, and medical professionals, as well as hospitals, institutions, and nursing homes, the Hurwitz & Fine Medical & Nursing Home Defense Team is here for you.  

Our defense team has the trial results and experience to vigorously defend our caregivers facing blame in the most trying of circumstances.  Patrick B. Curran has dedicated his 40-year legal career to defending medical professionals and nursing homes from claims of negligence and malpractice.  He has also served as an adjunct faculty member at the University at Buffalo School of Law, and lecturer for the University at Buffalo School of Medicine and School of Nursing, as well as for other health care professional and community groups.  V. Christopher Potenza is a seasoned and trial-tested litigator, having obtained defense verdicts across New York State on complex matters. He has substantial experience defending claims at the federal, state, and appellate levels. 
As a public service, we are pleased to present this newsletter providing the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities.  In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.
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Your Medical Malpractice & Nursing Home Defense Team
is here to answer your questions:

V. Christopher Potenza, Esq. ([email protected])
Patrick B. Curran, Esq. ([email protected])
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