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

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.