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June 30, 2022
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 A Note from Steve Sorrels
After a 20-year hiatus, I am thrilled not only to be back at Hurwitz Fine, but part of our growing and expanding Medical & Nursing Home Defense Team. It’s an exciting time as we are celebrating our Firm's 45th anniversary with a new logo, and streamlined name, Hurwitz Fine. Please check out our brand video to learn more about the history of Hurwitz Fine and our plans to further grow and evolve to serve the needs of our clients.
There is important but unfortunate legislative news to share that will greatly impact the defense of medical and long-term care claims. The New York Senate and Assembly has passed the Grieving Families Act, legislation that will completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery in a death claim. The bill will now go to the Governor for final consideration and is expected to be signed into law. Details on these changes are below.
For some historical perspective on this legislation, our recent article from my colleagues Chris Potenza and Alice Trueman, Redefining ‘Family’: Emotional Damages and the Grieving Families Act, was published in the New York State Bar Association Journal, May/June 2022 edition.
I want to thank Stephanie McCance for her contribution to our Latest News & Developments section, and Jonathan Schutrum and Elizabeth Adymy for this month’s case reviews:
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First Department addresses sufficiency of claim alleging failure to diagnose breast cancer where plaintiff cancelled appointments and discontinued treatment after losing health insurance coverage;
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Second Department denies motion for leave to file a late notice of claim where plaintiff failed to submit medical evidence showing actual notice of alleged malpractice;
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Second Department finds expert affidavits opposing summary judgment motion raised triable issues of fact despite experts’ lack of board certification in the defendant physician’s area of practice;
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Second Department holds that the opinion of defendant’s expert that surgical oncologist’s duty of care did not extend to chemotherapy treatment was insufficient to establish prima facie entitlement to summary judgment;
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Second Department dismisses claims by physician for abuse of process and malicious prosecution where occasional prescription writing created arguable doctor-patient relationship and certificate of merit was filed in prior medical malpractice case;
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The Third Department finds a duty of care is owed by mental health facility to the plaintiff, a member of the general public, who was the victim of kidnap and rape by facility patient;
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The Fourth Department finds that defendant’s expert’s rebuttal was insufficient in addressing plaintiff’s expert’s specific conclusions.
As a reminder, we are pleased to be offering 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:
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Latest News & Developments
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"Grieving Families Act" Secures Final Legislative Approval: Wrongful Death Act Amendments Will Be Heading to Governor
In the final night of the 2022 New York legislative session, both the Senate and Assembly passed the Grieving Families Act, monumental amendments to New York State’s wrongful death statute. The legislation now will go to the Governor for final consideration.
Currently, under the NYS Estate, Powers & Trust Law (§ 5-4), the recovery for wrongful death in New York is limited to the pecuniary loss to the survivors of the deceased. It is primarily economic loss driven to compensate only those who were financially dependent on the decedent. If the plaintiff dies without financial dependents, the value of the claim is often limited to conscious pain and suffering (if any) and modest funeral and burial expenses. This bill dramatically expands the damages recoverable in a wrongful death claim to include emotional damages such “grief” and “loss of love.” It also permits recovery not just by financial dependents, but “close family members” as decided by a finder-of-fact. The statute of limitations is also increased from two years to three and a half years. Notably, this act, if signed into law, “shall take effect immediately and shall apply to all pending actions and actions commenced on or after such date."
The language of the legislation as well as the sponsors' memorandum, can be found by clicking on the bill numbers: S74A (Hoylman)/A6770 (Weinstein):
The bolded language below adds to the category of damages that would be recoverable:
(I) REASONABLE FUNERAL EXPENSES OF THE DECEDENT PAID BY THE PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT, OR FOR THE PAYMENT OF WHICH ANY PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT IS RESPONSIBLE.
(II) REASONABLE EXPENSES FOR MEDICAL CARE INCIDENT TO THE INJURY CAUSING DEATH, INCLUDING BUT NOT LIMITED TO DOCTORS, NURSING, ATTENDANT CARE, TREATMENT, HOSPITALIZATION OF THE DECEDENT, AND MEDICINES.
(III) GRIEF OR ANGUISH CAUSED BY THE DECEDENT'S DEATH, AND FOR ANY DISORDER CAUSED BY SUCH GRIEF OR ANGUISH.
(IV) LOSS OF LOVE, SOCIETY, PROTECTION, COMFORT, COMPANIONSHIP, AND CONSORTIUM RESULTING FROM THE DECEDENT’S DEATH.
(V) PECUNIARY INJURIES, INCLUDING LOSS OF SERVICES, SUPPORT, ASSISTANCE, LOSS OR DIMINISHMENT OF INHERITANCE, RESULTING FROM THE DECEDENT’S DEATH; AND LOSS OF NURTURE, GUIDANCE, COUNSEL, ADVICE, TRAINING, AND EDUCATION RESULTING FROM THE DECEDENT'S DEATH.
It would also lengthen the wrongful death statute of limitation from two years to three years and six months.
While the current law permits recovery only by the decedent’s distributees, this bill increases the category of individuals who may recover:
SURVIVING CLOSE FAMILY MEMBERS, WHICH MAY INCLUDE, BUT ARE NOT LIMITED TO, SPOUSE OR DOMESTIC PARTNER, ISSUE, PARENTS, GRANDPARENTS, STEP-PARENTS AND SIBLINGS. THE FINDER OF FACT SHALL DETERMINE WHICH PERSONS ARE CLOSE FAMILY MEMBERS OF THE DECEDENT UNDER THIS SECTION BASED UPON THE SPECIFIC CIRCUMSTANCES RELATING TO THE PERSON’S RELATIONSHIP WITH THE DECEDENT.
New York Nursing Homes Could Get More Oversight
State lawmakers have produced legislation for stronger oversight protections of nursing homes that will head to Gov. Hochul’s desk for consideration. The bill aims to strengthen the state’s long-term care ombudsman program by requiring it to publicize in its annual reports the types and patterns of complaints that were received by its regional offices. It would also have to publicize the visits by ombudsmen to long-term care facilities. This bill approval comes after a $2.5 million increase in state funding for the program, more than doubling its state-funded budget. Advocates for the bill are hopeful that it could provide needed information for residents in nursing homes that may lead to changes in policy as a result.
Medicaid Weighs Attaching Strings to Nursing Home Payments to Improve Patient Care
CMS is considering a requirement that the nation’s 15,500 nursing homes spend most of their payments from Medicaid on direct care for residents and limit the amount that is used for operations, maintenance, and capital improvements or diverted to profits.
CMS has requested public comments on a possible direct care spending mandate in its proposed update of nursing home payment policies and rates for next year. They have asked ‘is there evidence that resources that could be spent on staffing are instead being used on expenses that are not necessary to quality patient care?’ National nursing home industry groups oppose the requirements – which come at a time of significant staffing shortages across the country despite staffing being the ‘No. 1 expense’ for nursing homes according to the New York State Health Facilities Organization.
Department of Justice Files False Claims Act Charges Against Nursing Home Chain
The DOJ has filed another False Claims Act case against a long-term care provider premised on the quality of care provided to its residents. The DOJ is increasingly utilizing substandard quality of care as the basis for False Claims Act cases as part of the National Nursing Home Initiative launched in March 2020. Last year alone, the federal government collected over $5.6 billion in recoveries under the Act. Per this complaint, the DOJ alleges American Health Foundation (AHF) and affiliated companies provided grossly substandard skilled nursing services between 2016 and 2018.
The complaint is the latest example of the DOJ’s use of alleged substandard quality of care issues as the basis for a False Claims Act lawsuit. Under this theory of liability, a health care provider violates the Act when it submits claims for the substandard care because its claims submission certifies the services were provided in compliance with all applicable statutes, regulations, and rules. The government argues that providers who provide substandard care have not complied and therefore, the claim certification submitted is false in violation of the Act. Under the Act, providers can be liable for three times the amount of reimbursement plus a civil penalty ranging from $12,537 to $25,076 per claim as well as face potential criminal penalties and exclusion from participation in government health care programs.
Nursing home facilities should be cognizant that quality of care issues can create not just licensure and Medicare certification issues, but also significant liability risks under this Act. As such, owners and managers should be vigilant in tracking and monitoring survey results, complaints, and litigation as well as designing programs and mitigation measures to address, correct, and reassess identified issues. Owners should ensure appropriate resources are dedicated to turning around facilities with chronic issues as they are at especially high risk.
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Analysis of Recent Court Decisions
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May 26, 2022 Grenyion v. Mid-Hudson Comprehensive
Appellate Division, First Department
Claim alleging failure to diagnose breast cancer properly dismissed where plaintiff cancelled appointments and discontinued treatment after losing health insurance coverage.
After MRI testing revealed an abnormal mass on the Plaintiff’s left breast, she was referred to Defendant Dr. Shapiro for additional treatment. During her initial consultation, Dr. Shapiro reviewed the plaintiff’s MRI report and provided her with referrals to obtain physical therapy, genetic testing, and a mammogram. She also ordered a PET scan to rule out cancer.
Plaintiff did not schedule a follow-up visit with Dr. Shapiro, yet made all the appointments that Dr. Shapiro recommended. However, plaintiff then cancelled all her appointments because she no longer had health insurance. She did not reschedule the appointments and did not inform Dr. Shapiro of the loss of her health insurance. Although testifying that she was cognizant of the urgency of the situation and that she discovered a quarter sized lump six months after seeing Dr. Shapiro, plaintiff did not see another physician until a year later. At that time, plaintiff was diagnosed with a recurrence of breast cancer, which was by then Stage IV.
In affirming the Supreme Court's grant of summary judgment in favor of Dr. Shapiro, the First Department found that Dr. Shapiro's conduct was not a proximate cause of the delayed cancer diagnosis. Plaintiff never scheduled a follow-up visit with Dr. Shapiro or saw her again after the initial visit and waited a year after her discovery to see another doctor. Although conflicting expert opinions were sufficient to create issues of fact as to whether Dr. Shapiro departed from applicable standards of care, the alleged negligence did not contribute to the delay in diagnosing plaintiff's breast cancer and thus did not proximately cause her injuries.
May 24, 2022 Umeh v. New York City Health & Hospitals Corp.
Appellate Division, Second Department
Motion for leave to file a late notice of claim properly denied where plaintiff failed to submit medical evidence showing actual notice of alleged malpractice.
Plaintiff applied for leave to file a late notice of claim for medical malpractice against defendant New York City Health and Hospital Corporation (HHC) based on a diverticulectomy performed at an HHC facility. Plaintiff’s motion papers did not include medical records from the facility. Plaintiff also failed to submit medical evidence showing that he was incapacitated to such an extent that he could not comply with the statutory requirement to serve a timely notice of claim, as he asserted.
As held by the Second Department, plaintiff’s motion was properly denied by the Supreme Court. Plaintiff failed to show that HHC had actual notice of his medical malpractice claim within 90 days of accrual of the claim, or a reasonable time thereafter, because he failed to annex his medical records from the subject facility. Having failed to establish that HHC was on notice of his malpractice claim, the burden never shifted to HHC to make a particularized evidentiary showing of prejudice.
Even if the plaintiff had submitted medical evidence, the Court held that records alone would not be sufficient to establish actual knowledge of the claim. According to the Second Department, “mere possession or creation of medical records does not ipso facto establish” that a defendant hospital had actual knowledge of a plaintiff's potential malpractice claim. Records would also need to demonstrate that HHC inflicted injury by their acts or omissions.
June 1, 2022 Hiltz v. DiLorenzo
Appellate Division, Second Department
Expert affidavits opposing summary judgment motion raised triable issues of fact as to whether defendants departed from applicable standards despite experts’ lack of board certification in the defendant physician’s area of practice.
In an action alleging medical malpractice against a defendant radiologist for failing to diagnose the plaintiff’s cardiac condition, plaintiff opposed defendant’s motion for summary judgment by submitting the affidavits of both a pulmonary and cardiac expert. The two experts were board certified only in their respective specialties, but not in radiology.
Although they did not specialize in radiology, the Second Department found that the experts’ affidavits were sufficient to raise triable issues of fact and defeat defendant’s motion for summary judgment. The Court held that a physician need not be a specialist in a particular field to qualify as a medical expert and any alleged lack of knowledge or expertise goes to the weight and not the admissibility of the testimony. The trial court’s award of summary judgment to the defendant was therefore reversed.
June 8, 2022 McCarthy v. Ashikari
Appellate Division, Second Department
Opinion of defendant’s expert that surgical oncologist’s duty of care did not extend to chemotherapy treatment found insufficient to establish prima facie entitlement to summary judgment.
Plaintiff commenced an action for medical malpractice alleging that the defendant oncologist’s failure to recommend chemotherapy caused a reoccurrence of breast cancer. The defendant specialized in surgical oncology and performed plaintiff’s double mastectomy. After the procedure, defendant advised that it was his opinion that no chemotherapy, radiation, or hormonal therapy treatment was necessary. Defendant then referred the injured plaintiff to a non-party medical oncologist who also advised the injured plaintiff that chemotherapy was not necessary.
In moving for summary judgment, defendant argued that the scope of his duty of care did not extend to post-operative chemotherapy management. Defendant’s expert opined that as a surgical oncologist engaged to perform a mastectomy, the defendant was not responsible for management of plaintiff's condition post-operatively. Moreover, Plaintiff was referred to a medical oncologist who advised against chemotherapy as well.
The Second Department rejected defendant's argument, finding that he failed to establish that his duty of care did not extend to the departures alleged. The opinion of the defendant's expert that defendant’s duty of care to the plaintiff did not extend to chemotherapy treatment is insufficient to establish a prima facie entitlement to judgment as a matter of law. According to the Court, whether defendant owed plaintiff a duty is a question for the court and “not an appropriate subject for expert opinion.” Accordingly, the Supreme Court’s denial of summary judgment for the defendant was affirmed.
June 15, 2022 Kaufman v. Kaufman
Appellate Division, Second Department
Physician’s claim for abuse of process and malicious prosecution dismissed where occasional prescription writing created arguable doctor-patient relationship and certificate of merit was filed in prior medical malpractice case.
Plaintiff, a physician and brother of the defendant, commenced an action for abuse of process and malicious prosecution. Defendant had previously sued the plaintiff for medical malpractice, alleging that he provided improper treatment to their father while the father was admitted to a hospital where the plaintiff was employed as a physician. That action was ultimately dismissed, as the court found that there was no doctor-patient relationship between the plaintiff and his father.
The Second Department determined that the plaintiff’s claims for abuse of process and malicious prosecution were properly dismissed by the Supreme Court. Although the prior medical malpractice action was ultimately dismissed, its’ commencement was not entirely lacking in probable cause at its inception. The plaintiff, postured as a defendant in the prior action, wrote multiple prescriptions for his father over the course of years, by which there was an arguable doctor-patient relationship. Critically, a Certificate of Merit stating that there was a reasonable basis for the medical malpractice cause of action was also filed in the prior case.
June 16, 2022 Doe v Langer
Appellate Division, Third Department, 2022 WL 2162749
Mental health provider had duty of care to plaintiff, a member of the general public, who was the victim of kidnap and rape by facility patient.
Plaintiff was kidnapped at knifepoint, raped, and sexually assaulted by Jose L. Marlett at his apartment. At the time of the rape and sexual assault, Marlett was an outpatient client of defendant Rehabilitation Support Services, Inc. (hereinafter RSS), a nonprofit corporation providing rehabilitation and recovery-oriented services to individuals who have mental illness and substance abuse issues. In determining whether defendants owed plaintiff, a member of the general public, a duty of care in such a circumstance, the courts look to whether or not defendants have sufficient authority and ability to control the perpetrator’s conduct so as to exhibit a special relationship such that a duty exists. Here, the court noted that the defendants in this case were the only providers of services to the individual who attacked the plaintiff and that they had knowledge of his previous criminal record, his mental health diagnosis and that he posed a violent threat to himself and others. In addition, the defendants were “fully aware of [the individual’s] rapid decompensation and unstable behavior and were in the best position to control and attempt to stop him from harming himself and others.” The court concluded that under such facts the defendants failed to prove a lack of duty to take reasonable steps to prevent the individual from harming members of the general public and denied their motion for summary judgment and the dismissal of the complaint as against them.
June 3, 2022 Cyrus v Rochester Regional Health
Appellate Division, Fourth Department
Plaintiff’s motion for summary judgment granted on liability where defendants’ expert failed to address plaintiff’s expert’s specific conclusions
Plaintiff, as administratrix of her husband’s estate, moved for partial summary judgment on the issue of the defendants’ employee’s negligence in providing care and treatment to the decedent including their failure to diagnose and treat his aortic dissection. The Fourth Department found that the plaintiff met her initial burden with the submission of an expert affirmation in which her expert established his qualifications and who stated that after reviewing the hospital and medical records, he concluded that the “defendants were negligent and that their negligence affected [decedent’s] condition” and the specific factors appearing in the hospital and medical records which led him to his conclusions. The Fourth Department further held that the defendants had failed to meet their burden in opposing the plaintiff’s motion because the defendants’ expert failed to address the specific conclusions of the plaintiff’s expert.
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Hurwitz Fine's Medical Malpractice & Nursing Home Defense Team
is here to answer your questions:
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