Medical & Nursing Home Liability Pointers - 06/05/2025

Medical Malpractice and Nursing Home Negligence Case Updates

First Department

05/27/2025        Rios v. St. Barnabas Hospital
Appellate Division, First Department
First Department rejects a plaintiff’s attempt to overturn a jury verdict, finding that there was ample evidence to support the verdict and that the trial court properly exercised its discretion in evidentiary issues.

Plaintiff appealed a jury verdict that found the defendant hospital and midwife were not liable for failing to timely diagnose and treat her ectopic pregnancy. The First Department held that there was ample evidence that the defendants complied with the standard of care. The decision highlights that the defendant midwife told the plaintiff that she urgently needed to get repeat bloodwork for a b-hCG test within 48 hours, and that the plaintiff did not seek a repeat test until a week later.

Also in plaintiff’s appeal, plaintiff argued that the trial court should have issued a missing document charge, as the defendant hospital failed to produce documents regarding the hours their clinic lab was open. The First Department held that because the plaintiff failed to object to the jury charges, the argument was not preserved for review. Additionally, the Court noted that the plaintiff did not make any showing the documentation existed or was under the defendants’ control.
 
Second Department

04/16/2025          Robles v. Brooklyn Queens Nursing Home, Inc.
Appellate Division, Second Department
Second Department affirms trial court’s denial of Plaintiff’s motion to vacate note of issue and re-open discovery.

Plaintiff, in an action for medical malpractice damages against Defendant, filed a note of issue at the close of discovery. Shortly thereafter, plaintiff reversed course and moved to vacate the note of issue and re-open discovery. The trial court denied plaintiff’s motion. On appeal, the Second Department held that there are no appeals as of right from orders that do not decide a motion made on notice. Accordingly, plaintiff had no right to appeal.
 
Third Department

There were not a lot of pertinent decisions the last quarter, so here is a good reminder that the trial court deadlines do, indeed, matter.

Schultz v Albany Med. Ctr. Hosp.
Appellate Division, Third Department
Third Department upholds Trial Court’s discretion to preclude expert testimony for failure to comply with discovery deadlines.

Plaintiff filed opposition to Defendant’s Motion for Summary Judgment dismissing the complaint and at the same time cross-moved to supplement his expert witness disclosure by proffering the opinion of a second expert witness. The trial court denied plaintiff’s cross motion and granted summary judgment for the Defendant. On appeal, the Third Department found that the trial court has discretion to supervise disclosure deadlines and impose appropriate sanctions if a party fails to comply with that deadline. Here, plaintiff attempted to disclose a second expert in a wholly different field whose opinions did not pertain to the matters addressed by their initial expert, thus not being a supplemental opinion at all. Additionally, their expert affidavit was dated seven months after plaintiff filed his note of issue and had only disclosed this second expert’s identity and opinion in response to Defendant’s summary judgment motion. Plaintiff did not provide any excuse, much less good cause for this nondisclosure throughout the lengthy time permitted for discovery. The court concluded that the Supreme Court did not abuse its discretion in denying plaintiff’s motion to supplement his expert disclosure.
 
Fourth Department

The Fourth Department had some busy sessions in March addressing Medical Malpractice and Nursing home topics!

03/14/2025        Kingston v. Tennyson Court
Appellate Division, Fourth Department
Fourth Department dismisses Public Health Law causes of action against assisted living facility but declines to overturn precedent allowing such claims under certain circumstances.

Plaintiff’s executor sued the Defendant assisted living facility under a negligence cause of action, as well as two Public Health Law causes of action, for injuries arising out of Decedent’s residency. The trial court denied Defendant’s motion to dismiss each claim. On appeal, the Fourth Department noted that under the precedent it established in Cunningham v. Mary Agnes Manor Mgt., L.L.C., assisted living facilities could be held liable as if they were residential health care facilities under the Public Health Law if they provide health-related services. Here, the Court dismissed the two Public Health Law claims on the theory that plaintiff’s allegations, unlike those in Cunningham, failed to allege sufficient facts overcoming Defendant’s argument that it is an assisted living facility not subject to the Public Health Law claims. Nevertheless, the Fourth Department declined to overturn Cunningham, noting that the instant case could be resolved without disrupting precedent. Two judges concurred in the result reached but argued that Cunningham should be overturned as inconsistent with the governing statutory framework, and that assisted living facilities should never be subject to Public Health Law claims as de facto residential health care facilities.
 
03/21/2025        Martin v. Kaleida Health
Appellate Division, Fourth Department
Fourth Department reverses grant of a protective order on hospital records regarding COVID-19 patient placement.

Plaintiffs sued Defendant after contracting COVID-19 while admitted to Defendant’s hospital. Plaintiffs alleged that the hospital negligently placed a COVID-positive patient in plaintiff Leon Martin’s room. To support their theory, plaintiffs sought production of Defendant’s hospital records pertaining to the non-party patient, with name and other identifying information redacted. After Defendant refused, plaintiffs moved to compel and Defendant cross-moved for a protective order. The trial court sided with Defendant. On appeal, the Fourth Department observed that although discovery determinations are generally within the discretion of the trial court, the Appellate Division may substitute its own discretion even in absence of abuse. Exercising that discretion, the Appellate Division held that the records, which would allow plaintiffs to determine when Defendant became aware that the non-party patient tested positive for COVID-19, were sufficiently important to plaintiffs’ claim to justify overcoming physician-patient privilege.
 
03/21/2025       Hurley v. Rochester Regional Health ACO, Inc.
Appellate Division, Fourth Department
Fourth Department holds allegations against hospital for unauthorized access to confidential records as sufficient to maintain a negligence action, but not a breach of contract claim.

Plaintiffs, after receiving care from Defendant hospital, alleged that a co-Defendant nurse impermissibly accessed plaintiffs’ confidential records due to improper record keeping by Defendant. In the lower court, plaintiffs presented claims for both negligence and for breach of implied contract. The trial court granted Defendant’s motion to dismiss under the theory that plaintiffs lacked evidence and failed to state a cause of action. On appeal, the Fourth Department held that plaintiffs’ allegations and affidavits were sufficient to survive dismissal of the negligence claim, since hospitals may be liable in tort for failure to safeguard confidential records, and Defendant’s affidavits would not merit dismissal unless they could conclusively establish that plaintiffs had no cause of action, which they failed to do. Accordingly, the Fourth Department reversed the grant of dismissal with regard to the negligence claims. However, the Court also determined that the tort cause of action was sufficient to protect plaintiffs’ interests here, and upheld the dismissal of the breach of implied contract claims.

Hurwitz Fine's Medical Malpractice & Nursing Home Defense Team
is here to answer your questions:

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Noah C. Neale, Esq. (ncn@hurwitzfine.com)
Michael L. Lieberman, Esq. ([email protected])

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