Medical & Nursing Home Liability Pointers - 08/14/2023


August 14, 2023


  A Note from Liz Midgley:

The annual DRI Senior Living and Long-Term Care Litigation Seminar is fast approaching on August 16-18, 2023, in Washington, D.C.  My partner Steve Sorrels and I are excited to be in attendance.  I am honored to be moderating a panel on “Recent Trends in Aging Services Litigation: A Claims Perspective.”   Feel free to drop me a note if you will be attending as we would love to say hi!
We are fielding a lot of questions on the status of the decision by the New York Litigation Coordination Panel to coordinate nursing home COVID-19 claims.  In a nutshell, it’s a mess.  While the intent of order was to facilitate the consistent, efficient resolution of multiple lawsuits, from a variety of venues, for all pre-trial proceedings for claims against nursing homes, skilled nursing facilities, and similar health facilities alleging negligence in response to the COVID-19 pandemic, its implementation is mired in a quagmire of uncertainty and legal challenges.  There are at least a half dozen Article 78 proceedings filed by nursing home defendants challenging the LCP’s authority to order state-wide coordination of nursing home cases involving claims of COVID-19 related deaths and injuries.  Most have hearings scheduled for September.  Stay tuned for more information on those. 
Our general sense is that none of the “coordinated” COVID-19 nursing home cases are going anywhere anytime soon given these challenges.  Further, the  trial courts assigned to handle the coordinated cases seem to be waiting for an ultimate decision from the Court of Appeals on whether the revocation of the COVID-19 immunity provisions of New York’s Emergency or Disaster Treatment Protection Act is to be applied retroactively to avoid as much chaos as possible in the resolution of these cases.  Last October, we won a significant decision at New York’s Appellate Division, Fourth Department, which unanimously held that the statute repealing the EDTPA is to be given prospective, rather than retroactive, effect.  Currently this is the only appellate authority in New York on this issue, yet the local judges seem to be waiting for another case on this topic to make its way to the Court of Appeals (despite there being no pending case before the Court to our knowledge).
The other hotbed issue hanging over this industry is the revised version of 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 (“close family members”) who can seek recovery for a fatality, has passed both houses of the New York Legislature.  See, The Resurrection of the Grieving Families Act: Another Attempt to Revamp New York’s Wrongful Death Statute.  After prior legislation suffered a veto this past January, the 2023 version of the legislation more narrowly defines the pool of plaintiffs who would be able to bring a case for wrongful death, expands the statute of limitations from two to three years, and would apply retroactivity to any cause of action accruing on or after July 1, 2018, regardless of when the claim was filed.  While Governor Hochul had voiced support for a more limited reform of New York’s Wrongful Death Statute to include a cap on damages and carve out an exception for medical malpractice claims, notably she has not requested delivery of this bill from the legislature, which must occur by year-end. It would thus appear that the revised iteration of the bill does not adequately address the Governor’s concerns about the burden and increased costs on families, small businesses, and New York’s health care industry.  It is our understanding that further discussions and negotiations are underway with the Governor’s office. 
In other legal news, we have a diverse array of cases to discuss this month:

  • Fourth Department clarifies impact of allegations pled in Bill of Particulars in addressing summary judgment;
  • Plaintiff fails to establish that physician’s Alzheimer’s disease impacted surgery on plaintiff;
  • Summary judgment denied on claim of failure to perform cardiac work-up when patient presented with back pain;
  • Lack of informed consent claim does not apply to emergency C-section;
  • Hospital not liable for death of hip replacement rehab patient who suffered psychotic episode, wandered and fell from hospital construction site;
  • Late Notice of Claim permitted in case of an injury to an infant that was not apparent within the statutory 90-day period; and
  • Second Department denies attempt under “relation-back doctrine” to add physician’s assistant no longer employed at defendant’s practice to lawsuit after expiration of statute of limitations.

I am personally very proud to announce that Hurwitz Fine has achieved Midsize Mansfield Certification! Mansfield Rule Certification, a nationally recognized law firm diversity certification, which measures whether law firms have affirmatively considered at least 30 percent women, attorneys of color, LGBTQ+ and lawyers with disabilities for leadership and governance roles, partner promotions, formal client meeting opportunities, and senior lateral positions. The initiative also includes a commitment by the firm to be transparent in our internal governance, job descriptions and advancement criteria.  In fact, we received Certification “Plus” status, which indicates that we have successfully achieved 30% diverse representation and are the first Buffalo-based law firm to attain this diversity goal!

Lastly, does your firm or company have attorneys, summer associates, or claims professionals that are just learning or need a refresher on how to approach insurance coverage questions and, even prepare coverage opinions? My partner and insurance coverage guru Dan Kohane, along with John Trimble from the Indiana firm of Lewis Wagner, LLP, will be presenting for the FDCC Insurance Coverage Section a Zoom primer on Commercial General Liability coverage.  The program will focus on a practical approach to liability coverage analysis, including a repeatable process to consider the policy grant, exclusions, and policy conditions. This 75-minute interactive presentation also discusses how to craft disclaimers and reservation of rights letters. The presentation will be via Zoom from 1:30 p.m. to 2:45 p.m. Eastern Time on Wednesday, August 16, 2023. Written materials will be circulated electronically. If interested, please contact Dan Kohane at [email protected] to pre-register and obtain a link for the presentation.

Hope to see you in D.C.!


Analysis of Recent Court Decisions


June 28, 2023 Carroll v. Niagara Falls Mem. Med. Ctr. 
Appellate Division, Fourth Department
Fourth Department clarifies impact of allegations pled in Bill of Particulars in addressing summary judgment.

In this medical malpractice case, certain defendants asserted that pursuant to the Fourth Department’s decision in Bubar v Brodman, 177 AD3d 1358 (4th Dept. 2019), they were entitled to the dismissal of particularized factual allegations contained in the bill of particulars that were not expressly addressed by the plaintiff’s expert in opposing the defendants’ summary judgment motion. The Court rejected this argument by clarifying that a bill of particulars is not a pleading but simply an expansion of one and that a plaintiff must only raise a triable issue of fact with respect to each distinct theory or claim of malpractice on which the defendant made a prima facie showing of entitlement to judgment as a matter of law.  The initial burden to address the sufficiency of the claims is on the moving party, and the opposing party need only respond to the allegations moved against.   

June 30, 2023     Emerson v. Kaleida Health
Appellate Division, Fourth Department
Plaintiff fails to establish that physician’s Alzheimer’s disease impacted surgery on plaintiff.

In this medical malpractice action, plaintiff alleges injuries after her physician, who had been diagnosed with Alzheimer's disease, performed a double knee replacement surgery upon her. Here, defendants met their initial burden on their motion with respect to claims premised on the physician’s disease by submitting the affirmation of an expert who opined that, even assuming the doctor was impaired physically or mentally as a result of Alzheimer's disease, such impairment did not affect the outcome of the surgery and did not result in any injury to plaintiff. Contrary to plaintiffs’ contention, the affirmation of defendants’ expert is not wholly conclusory or speculative, or without any basis in the record.  Further, the affidavit of plaintiffs’ expert in opposition to the motion failed to establish that the doctor’s Alzheimer's condition impacted the surgery and caused plaintiff's injuries.

June 14, 2023     Kielb v. Bascara
Appellate Division, Second Department
Summary judgment denied on claim of failure to perform cardiac work-up when patient presented with back pain.

The deceased plaintiff arrived at the emergency department with a chief complaint of back pain that radiated to his right leg. The decedent was evaluated and diagnosed with degenerative disease of the spine. The next morning, having never left the hospital after being discharged, the decedent died of a heart attack in the emergency department. The plaintiff raised triable issues of fact by submitting the affirmation of an expert who opined that the decedent exhibited symptoms consistent with a myocardial infarction when he presented to the hospital emergency department, as well as a large scar from a prior cardiac surgery, and that the defendants departed from the accepted standard of medical care by failing to perform a cardiac workup on the decedent at that time.

June 9, 2023       Dunbar v. Women & Children's Hospital of Buffalo
Appellate Division, Fourth Department
Lack of informed consent claim does not apply to emergency C-section.

Plaintiffs are the parents of an infant who died shortly after birth, and they commenced this medical malpractice action seeking to recover damages for emotional injuries that they allegedly sustained as a result of defendants’ negligence in providing medical treatment during plaintiff's labor and delivery of the child.  The Fourth Department held that the trial court properly granted those parts of defendants’ motions seeking to dismiss the claim for medical malpractice based on lack of informed consent against them. The right of action to recover for medical, dental or podiatric malpractice based on a lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body (Public Health Law § 2805-d [2]). Here, plaintiffs failed to state a cause of action for lack of informed consent because, as pleaded in the operative complaint, “[t]he injuries allegedly sustained ... were not the result of an invasive procedure, but instead were alleged to have been the result of a negligent failure to undertake or negligent postponing of such procedure”—i.e., defendants’ alleged delay in ordering a cesarean section—during an ongoing emergency situation.

May 11, 2023     Schreiber v. New York City Health & Hosp. Corp
Appellate Division, First Department
Hospital not liable for death of hip replacement rehab patient who suffered psychotic episode, wandered and fell from hospital construction site.

The decedent plaintiff was admitted to Gouverneur for inpatient rehabilitative services after hip replacement surgery. Upon admission, the assessment form stated that plaintiff could not walk independently, needed extensive assistance transferring from the bed, and presented no wandering risk. She was continued on her prior prescription medications for insomnia and depression, and was referred to a psychologist after experiencing a bout of crying.  Approximately 10 days into her stay at Gouverneur, plaintiff suffered an apparent psychotic break, during which she walked down the hallway at 4:30 a.m. with her rollator and accessed the 13th floor of a freight elevator. This elevator was on the premises as part of a construction project and was off limits to patients and visitors. After getting off the elevator at the first floor, plaintiff entered and crossed the construction site inside the hospital, walked out onto an unused and debris-covered patio above a loading dock, and climbed onto a ledge. Although a hospital police officer was initially successful in talking plaintiff down from the ledge, she later climbed back onto the it when she was approached by a New York City Police Department Emergency Services Unit officer, fell approximately 20 feet, and sustained injuries that resulted in her death.

In opposition to defendants’ prima facie showing, plaintiff failed to raise an issue of fact. Plaintiff submitted a physician's expert opinion stating that the failure to use a Wanderguard device constituted a departure from the applicable standard of care. However, plaintiff's expert relied on only one page of the medical record – a comprehensive care plan prepared upon plaintiff’s admission — and did not provide a medical opinion based on his independent review of her condition. Furthermore, the expert failed to explain why the standard of care required the placement of a Wanderguard on a patient who could not walk independently due to her recent surgery. Moreover, she was not a danger to herself and was alert, oriented, responsive, and engaged in her treatment with no history of wandering or psychosis. Nor did plaintiff's expert articulate the applicable standard of care, how it was breached, or how any breach caused Walsh's alleged injuries.

Defendants also established entitlement to dismissal of the cause of action for negligence by  stablishing that plaintiff’s fall was the result of an unforeseeable series of circumstances — accessing a freight elevator on the 13th floor that no patient had previously used; entering and crossing a construction site on the first floor that was accessible only by the freight elevator; walking out with her rollator onto an unused patio reachable only through the construction site; and climbing onto a ledge — none of which defendants could have prepared for.

May 24, 2023     Santos v. Westchester Medical Center
Appellate Division, Second Department
Late Notice of Claim permitted in case of an injury to an infant that was not apparent within the statutory 90 day period.

Representative for child petitioned to deem a late notice of claim timely served nunc pro tunc, regarding claim against hospital for medical malpractice, alleging that child did not receive sufficient respiratory support after his premature birth and transfer to hospital, resulting in permanent brain injury. In determining whether to grant leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc under General Municipal Law § 50–e(5), the court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in its defense. 

Here, Westchester Medical Center acquired actual knowledge of the essential facts underlying the claim by virtue of the medical records pertaining to the sufficiency of the respiratory support given to the subject newborn child, after his premature birth and transfer to WMC.  Further, the delay in serving the notice of claim was at least in part attributable to the child's infancy, since it was not apparent that the child had suffered a permanent brain injury, nor was the extent of the injury, apparent until after the 90-day period expired.

June 21, 2023     Dixon v. Jones
Appellate Division, Second Department
Second Department denies attempt under “relation-back doctrine” to add physician’s assistant no longer employed at defendant’s practice to lawsuit after expiration of statute of limitations.

Plaintiff had originally brought a medical malpractice action against the physician and the practice, but after the statute of limitations had expired, sought to amend to name the physician’s assistant as defendant.   Plaintiffs argued that the "relation-back doctrine" applied and claimed that they mistakenly believed that the PA was covered by the practice's insurance policy by virtue of her status as an employee.

The Second Department held that the linchpin of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period.  Here the record establishes that the PA was no longer working for the practice at the time of the commencement of the action, and there is no evidence that she had actual or constructive knowledge within the limitations period of the commencement of the action.  Accordingly, under these circumstances, the plaintiffs failed to establish that the appellant knew or should have known that, but for a mistake as to the identity of the proper parties, this action would have been commenced against her as well.



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