Medical & Nursing Home Liability Pointers - 03/07/2025

 

 

March 7, 2025

 A Note from Liz Midgley:

I don’t know about all of you, but 2025 is moving at lightning speed for us in (still) snowy Buffalo! Our Medical Malpractice and Nursing Home Liability team has had some very busy months since our last newsletter. I had the honor of speaking to the Pre-Law students at my alma mater, SUNY Geneseo (I can’t believe how much the campus has changed!), and the team has presented at so many seminars and webinars for various clients, The Harmonie Group, RISE Professionals, the Bar Association of Erie County, and more. We really appreciate the opportunities we get to share insight and connect with others!

We are excited to officially welcome new associate attorney Noah C. Neale, Esq., to the Medical Malpractice and Nursing Home Liability team! Noah was a summer associate at Hurwitz Fine during law school and joined us full time after taking – and passing! – the Bar Exam. He has now been admitted to practice as an attorney in New York State, and we could not be more excited!  Noah hit the ground running, already handling appearances, motions, and depositions, and he has authored this month’s case updates, below. Prior to law school, Noah was a licensed EMT and performed pediatric research in association with the PLAN study at the University of Rochester Medical Center, which makes him a perfect addition to our team. Welcome, Noah!

In firmwide news, we have officially opened a brick & mortar Rochester office! We are fortunate to announce our two new litigation attorneys, Elizabeth K. Ognenovski and Bradon S. Carlson. While we have had a Rochester presence for the past five years with NYS Labor Law Attorney Tim Welch, we are excited about our expansion to further serve our clients.  

Trusts & Estates Attorney Melissa A. Pezzino recently discussed the role of Irrevocable Trusts in estate planning, and how they can be used to safeguard your wealth. This is the #1 question that Melissa receives from clients, so she took a deeper dive into the benefits, legal considerations and potential drawbacks in “Are you protecting your wealth from rising nursing home costs?

We are also excited to announce that Andrea Schillaci, Chair of the Business & Commercial Litigation Department, has been elected President of The Harmonie Group, an international network of elite and vetted law firms that holds events for attorneys and industry members across the country. In addition, Chris Potenza has been elected Co-Chair of the Harmonie Group's Litigation Practices Committee. Congratulations to both Andrea and Chris!

NY Governor Vetoes Grieving Families Act for Third Time

In December, New York Governor Kathy Hochul, for the third straight year, vetoed the 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.

Notably, the proposed legislation continued to omit a cap on damages, nor did it carve out an exception for medical malpractice claims. The expansion of damages was the same as passed in the prior legislation, and while the legislature limited retroactivity, it did not eliminate it. As predicted, these modest revisions did not address the Governor’s prior concerns in any meaningful way. For more analysis of this issue, click here.
 

Want to see us address something in a future Pointers? Send us an email!

 

Medical Malpractice and Nursing Home Negligence Case Updates

 

October 15, 2024       Gomez v. Mt. Sinai Hospital
Appellate Division, First Department
First Department confirms that statutory savings period deadline prevails over informal judicial deadline.

A plaintiff, following the death of her parent, sought to sue the defendant hospital for medical malpractice and wrongful death. In an effort to commence the action before the expiration of the statute of limitations, plaintiff filed her summons and complaint prior to being appointed as the administrator of decedent’s estate. When the trial court granted defendant’s motion to dismiss for lack of standing on grounds that plaintiff did not yet have her administration papers, it “permitted plaintiffs to ‘restore the action at any time within one year’” after plaintiff was properly appointed. Exactly one year after the dismissal, having been named administrator, plaintiff moved to restore the action. The trial court denied the motion, citing CPLR 205(a), which establishes a savings period of 6 months for a plaintiff to restore an action that was dismissed for lack of administration papers. On appeal, the First Department affirmed, opining that the trial court’s comment that plaintiff could refile within a year did not constitute law of the case and did not trump the savings period established in CPLR 205(a).
 

December 11, 2024       Butler v. Wyckoff Heights Medical Center
Appellate Division, Second Department
Second Department finds plaintiff’s allegations that he should have been assessed as a higher fall risk sound in medical malpractice rather than ordinary negligence.

A 71-year-old patient suffered a fall while unattended in a bathroom at the defendant medical center and subsequently commenced a suit. Although plaintiff initially characterized his complaints as negligence claims, defendant argued that the claims sounded in medical malpractice, and were consequentially subject to a shorter period of limitations, which had expired. The trial court determined that plaintiff’s allegations consisted of some negligence claims and some medical malpractice claims, dismissing the malpractice claims as untimely. On appeal, the Second Department reiterated that a claim sounds in negligence when jurors can use their everyday experience to assess whether the standard of care was breached, as opposed to those for medical malpractice, which require a consideration of professional skill and judgment. As a result, plaintiff’s claims that he should have been assessed as a higher fall risk constituted medical malpractice claims, because analyzing them required the application of medical judgment, while plaintiff’s other injury claims were ordinary negligence.
 

January 2, 2025           DeRusso v. Home of the Good Shepard at Highpointe
Appellate Division, Third Department
Third Department finds that Public Health Law § 2801-d, which provides a private right of action by residents of “residential health care facilities,” does not extend to claims against assisted living facilities.

Plaintiff, a resident of defendant’s assisted living facility, commenced a suit alleging issues with his care. Plaintiff asserted, among other things, a cause of action alleging violations of Public Health Law § 2801-d. Defendant moved to dismiss the Public Health Law claim, arguing that § 2801-d granted a cause of action for patients at a “residential health care facility”, and that defendant’s assisted living facility did not qualify. Plaintiff conceded that defendant is an assisted living facility but argued that § 2801-d nevertheless applied because the facility provided health-related services within the meaning of Public Health Law article 28. The trial court sided with defendant, and on appeal, the Third Department did so as well. In so doing, it noted that Public Health Law article 46-B deals with assisted living facilities and specifically delineates that assisted living facilities “shall not include . . . residential health care facilities or general hospitals licensed under [Public Health Law article 28].” The Third Department observed that this issue has also been reviewed by the Second and Fourth Departments; the Third Department’s view is consistent with that of the Second, and can be distinguished from the Fourth Department, which has a line of cases suggesting that § 2801-d might be applied to assisted living facilities.
 

January 16, 2025        Guthier v. DiPreta
Appellate Division, Third Department
Third Department evaluates battling experts and finds no issue of fact when one expert’s opinion is conclusory and ignores causation.

After two years of conservative treatment for foot and ankle pain, plaintiff saw defendant surgeon for placement of hardware. Plaintiff later suffered an infection, alleging that defendant caused plaintiff’s injuries by failing to diagnose and properly treat the infection. On motion for summary judgment, both parties provided an expert affidavit, and the trial court, finding that the affidavits raised an issue of fact, denied the motion. On appeal, the Third Department reversed. The court concluded that there was no issue of fact because plaintiff’s expert’s assertions that defendant breached the standard of care were either conclusory or failed to respond to the opinion of defendant’s expert that any alleged deviations did not cause plaintiff’s injury.


January 31, 2025        Mylar v. Niagara Falls Memorial Medical Center
Appellate Division, Fourth Department
Fourth Department splits over whether expert who denies any negligence may properly opine as to whether there was causation.

Defendant doctor diagnosed plaintiff’s daughter with pink eye and recommended a next-day follow up with an ophthalmologist. The doctor did not set up the appointment herself, advising plaintiff to do so. Weeks later, plaintiff’s daughter was seen by an ophthalmologist and diagnosed with a very rare eye disease that left her almost entirely blind. Plaintiff claimed defendant breached the standard of care by diagnosing pink eye and by not personally making an appointment with an ophthalmologist. 

The lower court denied summary judgment on the grounds that defendants did not meet their burden with respect to either the deviation from the standard of care or causation. On appeal, the Fourth Department affirmed. The court determined that defendants’ expert affirmation did not satisfy the burden on causation because the expert said that “at all times, defendant was not negligent”; in the court’s view, the expert could not have properly testified that there was no causation, because if you do not acknowledge, or at least assume for sake of argument, that some act or omission breaching the standard occurred, then you cannot render an opinion as to causation.

Two judges dissented, opining that defendants did satisfy their burden with respect to causation, since the expert said that even if defendant had tried to make an appointment with an ophthalmologist immediately, the appointment wouldn’t have happened until at least the next day. In the dissent’s view, the expert established that there was no causation because regardless of defendant’s conduct, the fastest that an ophthalmologist’s appointment could have been made would have been the next day, whether it was the defendant who made it or plaintiff.

 

 

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. ([email protected])
Stephen M. Sorrels, Esq. ([email protected]
Patrick B. Curran, Esq. ([email protected])
Ashley M. Cuneo, Esq. ([email protected])
Noah C. Neale, Esq. (ncn@hurwitzfine.com)
Gabrielle D. Markle, Esq. ([email protected])

 

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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Read Our Additional Newsletters

 

Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Contact Dan Kohane at [email protected]  to subscribe.

Labor Law Pointers:  Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law and construction accident case decided during the month by the Appellate Courts. Contact Dave Adams at [email protected] to subscribe.

Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected]  to subscribe.

Products Liability Pointers:   This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 

 

       

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