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August 30, 2022
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 A Note from Liz Midgley
In talking with a client about Hurwitz Fine recently, I couldn’t believe that I am already approaching my 5-month anniversary of joining the firm. I could not be happier to be part of this talented and supportive team!
It’s that time again for DRI’s Senior Living and Long-Term Care Litigation Seminar, which is being held in Nashville on September 7-9, 2022. Sadly, I have another commitment during that time, and am so disappointed that I will miss this fantastic event – not to mention catching up with so many friends and colleagues from across the country! My partners, Chris Potenza and Steve Sorrels will be in attendance, so if you are going, please reach out to say hi!
We have lots of firm news to share! We have welcomed attorney Mark S. Nemeth to the firm as a Member in our Toxic Tort/Environmental Law practice group. Mark has over 20 years of experience in the areas of asbestos litigation, labor law, products liability, motor vehicle litigation, nursing home litigation, premises liability, and employment discrimination litigation. Mark concentrates the majority of his practice on the representation of manufacturers, distributors, and contractors with liability for asbestos-related claims.
I am also so proud to announce that 22 of our attorneys were recognized by Best Lawyers in America® and Best Lawyers: Ones to Watch in America™ and 35 were named to 2022 Upstate New York Super Lawyers list! Our Managing Partner, Jody Briandi, was honored as Best Lawyers® 2023 Litigation – Insurance “Lawyer of the Year” in Buffalo.
For some lighter news, Super Lawyers magazine published this fun article “Three Buffalo Lawyers Walk Into a Bar…” about my partner Chris Potenza and his twin boys. (And maybe stay away from Golden, Colorado!)
I want to thank Stephanie McCance for her contribution to our Latest News & Development section, and Jonathan Schutrum and Elizabeth Adymy for this month’s case reviews:
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Southern District finds plaintiff’s nursing home negligence complaint over Covid-19 death contains merely garden-variety state law claims, rejects federal preemption under the Public Readiness and Emergency Preparedness Act (“PREP Act”), and remands case back to state court;
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Second Department vacates $2.7 million verdict and grants new trial where defendant’s cross-examination of plaintiff’s expert was improperly limited to preclude questions about the sufficiency of care by other doctors who treated or consulted on the decedent’s case;
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Second Department holds that trial court properly denied plaintiff’s CPLR 4404(a) motion for an order setting aside jury verdict and granting a new trial premised upon defense counsel’s alleged mischaracterization of testimony during summation;
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Second Department finds that trial court properly denied plaintiff’s CPLR 5015(a)(1) motion to vacate default in responding to the defendants’ summary judgment motions;
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Second Department finds that a hospital was not liable for patient’s suicide which occurred the day after discharge following psychiatric observation for a prior reported suicide attempt;
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Second Department affirms summary judgment dismissal where plaintiff alleging negligence by occupational therapist failed to submit expert affidavit;
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Fourth Department finds trial court erred in finding plaintiff’s expert’s affidavit sufficient to raise an issue of fact as to causation as expert failed to opine that defendant’s alleged failure to timely diagnose the plaintiff’s spinal cord issue diminished his chances of a better outcome;
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Fourth Department finds that plaintiff’s failure to identify negligent hospital employees is not fatal to claim as the defendant is in a better position to identify which of its employees treated the patient.
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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New York Revises Nursing Home Minimum Staffing Penalties Months After Implementation
The State’s Department of Health is already revising its minimum staffing regulations for nursing homes just months after the policies were officially implemented in April of this year. A $300 per day minimum penalty was removed from legislation if there is an “extraordinary circumstance” – like severe staffing shortages or an ongoing union dispute. A facility must show the state agency that it has tried to hire enough workers through increased wages and benefits “to the satisfaction of the department” according to the revised regulations. Those without a mitigating factor will have to pay fines up to $2,000 per day if they don’t meet required staffing levels. Further changes to the regulations could be in the pipeline as trade associations and operators are weighing in for a 45-day comment period due to end September 26.
New York to Give Health Care Workers Bonuses up to $3K as ‘a Sign of Our Gratitude’
The State will begin paying health care workers bonuses of up to $3,000 as part of the governor’s plan to bolster the state’s health care industry after many left the profession during the COVID-19 pandemic. The state is facing a severe shortage of workers in hospitals, nursing homes, long-term care facilities, and in-home care, with 9,300 job openings currently available for health care workers in New York. To combat the shortage, Hochul has allocated $20 Billion in the state budget to support health care workers, raise their wages, and upgrade aging infrastructure and equipment. The $1.3 Billion New York State Health Care and Mental Hygiene Worker Bonus Program is part of that.
Employers can now apply for the bonuses for their eligible employees through the state’s online portal at nysworkerbonus.com. Workers who make less than $125,000 per year, not including other bonuses or overtime pay, and have been in their positions for at least six months are eligible for the bonuses. Employees will be paid based on the number of hours they work – those who work at least 35 hours a week can get up to $3000 over two payments, while those who work fewer hours are eligible for bonuses between $500 and $2,000.
The bonus program is one part of Governor Hochul’s plan to combat the worker shortage and grow the state’s health care workforce by 20% over the next five years. The state budget includes $20 Million for more programs and initiatives to bolster the industry, including:
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1,000 full-tuition scholarships for nursing students. The Nurses for Our Future Scholarship covers tuition for students studying nursing at SUNY or CUNY schools who remain in the state for two years after graduation. The state saw 63,000 applicants for the 1,000 slots and recipients were chosen by a lottery system.
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$7.7 Billion to increase wages for home health care aides by $3 per hour over the next 18 months.
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$2.4 Billion to upgrade antiquated health care infrastructure and lab capacity; and
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$4 Billion in aid to hospitals struggling as a result of the pandemic. Many hospitals took a huge financial hit during the pandemic when they canceled elective surgeries and other services to focus on caring for COVID-19 patients.
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Analysis of Recent Court Decisions
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June 21, 2022 Rivera v Eastchester Rehabilitation and Health Care Center, LLC
United States District Court, Southern District of New York
Southern District finds plaintiff’s nursing home negligence complaint over Covid-19 death contains merely garden-variety state law claims, rejects federal preemption under PREP Act, and remands case back to state court.
Plaintiff commenced this action in Bronx County Supreme Court, arising from a COVID-19 fatality, alleging statutory nursing home claims and common law causes of action for negligence, pain and suffering, wrongful death, gross negligence and nursing home malpractice. The defendants thereafter timely removed the matter to federal court. Plaintiff then moved to remand the case back to state court. Defendants opposed the motion on three bases: (i) federal preemption under the Public Readiness and Emergency Preparedness Act (“PREP Act”) (42 USC §§ 247d-6d, 247d-6e); (ii) federal court jurisdiction premised on the federal officer removal statute (28 USC § 1442(a)(1)); and (iii) federal jurisdiction based on the “Grable doctrine,” a narrow doctrine under which federal question jurisdiction exists if a state-law claim raises a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state responsibilities.
Judge McMahon, in an opinion signaling his clear disdain for the arguments being made, remarked that these arguments have “repeatedly failed” in some 80 federal court decisions, including in the Third, Fifth, Seventh and Ninth Circuits. The District Court flatly rejected the defendants’ arguments, stating that “the overwhelming consensus is that none of these [arguments] confer jurisdiction over state law claims” like those at issue in the plaintiff’s case. (Emphasis in original). Judge McMahon refers the defendants to Judge Chen’s decision in Dupervil v All. Health Operations, LCC, 516 F.Supp.3d 238 (E.D.N.Y. 2021) with respect to the absence of merit relative to PREP Act preemption and the federal officer removal statute; and to Judge Liman’s decision in Shapnik v Hebrew Home for the Aged at Riverdale, 535 F.Supp.3d 301 (S.D.N.Y. 2021) with regard to the inapplicability of the Grable doctrine.
July 6, 2022 Schuster v Sourour
Appellate Division, Second Department
Second Department vacates $2.7 million verdict and grants new trial where defendant’s cross-examination of plaintiff’s expert was improperly limited to preclude questions about the sufficiency of care by other doctors who treated or consulted on the decedent’s case.
The defendant physician contended that he was entitled to a new trial based on the trial court’s ruling which precluded him from cross-examining the plaintiff’s expert witness regarding whether several other doctors who consulted on the decedent’s case also departed from accepted medical practice by failing to perform or recommend additional diagnostic procedures. The Court noted that if, as the defendant argued, the jury were to have found that the other doctors also departed from accepted standards of practice, and their departures were a substantial factor in depriving the decedent of a chance for an improved outcome, they could also have been found at fault together with the defendant physician. The Court found, as a result, that any evidence as to the culpability of the other physicians was relevant under CPLR 1601(1). Under these circumstances, the error precluding the cross-examination deprived the defendant physician of substantial justice and entitled the defendant physician to a new trial.
July 13, 2022, Bhim v Platz
Appellate Division, Second Department
Trial court properly denied plaintiff’s CPLR 4404(a) motion for an order setting aside jury verdict and granting a new trial premised upon defense counsel’s alleged mischaracterization of testimony during summation.
During summation, defense counsel displayed to the jury a printed enlargement of what purported to be an excerpt of the verbatim trial testimony of the plaintiffs’ expert witness. Defense counsel emphasized that, on cross-examination, the expert had affirmatively responded to a particular question, which consisted of two parts, separated by intervening colloquy among the attorneys and the court. During jury deliberations, it was found that the printed enlargement had not only excised the intervening colloquy, but that it also excised the second portion of the subject question. The court suspended jury deliberations, informed the jury that the demonstrative reproduction of the testimony was incorrect, provided the jury with a readback of the correct testimony, and reminded the jury that summations do not constitute evidence.
After a defense verdict was rendered, the plaintiffs moved for an order striking the defendant’s answer and directing a verdict in favor of the plaintiffs, or, alternatively, granting a mistrial premised upon counsel’s misrepresentation of the testimony, labeled by plaintiffs’ counsel as constituting a “fraud on the court.” The Second Department affirmed the trial court’s denial of the motion, finding that the misconduct at issue did not rise to the level of fraud because it occurred in the context of a summation, which does not constitute evidence. The Second Department further found affirmance was appropriate given the actions taken by the trial court in addressing the matter with the jury.
July 13, 2022 Giotis v Besser
Appellate Division, Second Department
Trial court properly denied plaintiff’s CPLR 5015(a)(1) motion to vacate default in responding to the defendants’ summary judgment motions.
Plaintiffs failed to oppose the defendants’ summary judgment motions, which the trial court granted. Plaintiffs moved to vacate their default in opposing the motions, but their motion was denied and the order denying the motion was affirmed by the Second Department. The Court reiterated the two part test to be used in disposing of a motion to vacate a default; the movant must demonstrate: (i) a reasonable excuse for the default; and (ii) the existence of a potentially meritorious opposition to the motion. The Court observed that the determination of what constitutes a reasonable excuse is a matter of discretion for the trial court, and that law office failure may be accepted as a reasonable excuse as long as it is “supported by a detailed and credible explanation of the default at issue”. Mere neglect does not suffice. The Court concluded the plaintiffs’ application for relief from the default was unwarranted because the assertions of law office failure were conclusory and unsubstantiated and that because the first prong of the test was not met, it was not necessary to consider whether the plaintiffs demonstrated the merits of their case.
July 27, 2022 Gaston v. New York City Health & Hospitals Corp.
Appellate Division, Second Department
Hospital not liable for patient’s suicide following psychiatric observation.
Plaintiff’s decedent presented to Kings County Hospital with scratches on his forearm and stated that he had attempted to commit suicide. After approximately 20 hours of treatment and observation, the decedent was discharged from the hospital. The decedent committed suicide the following morning.
Affirming an award of summary judgment in favor of the defendant hospital, the Second Department found that the discharging physician made a reasonable decision in accordance with the appropriate standard of care.
As stated by the Court, to hold a physician or his or her employer responsible for damages resulting from the actions of a psychiatric patient who has been released when the patient’s release is a matter of professional judgment… it must be shown that the decision to release the patient was something less than a professional medical determination founded upon a careful examination of the patient. In this case, the discharging physician determined that the decedent was no longer at an immediate risk to himself and referred him to an outpatient clinic for follow-up. Accordingly, judgment as a matter of law was properly granted to the defendant hospital.
August 3, 2022 Jean Paul v. Jamaica Hospital Medical Center, et al.
Appellate Division, Second Department
Summary Judgment affirmed where plaintiff alleging negligence by occupational therapist failed to submit expert affidavit.
Plaintiff received occupational therapy for hand injuries at the defendant hospital. During an initial treatment session, the therapist placed the plaintiff’s hand on a hot pack for an extended period, allegedly causing burns to the plaintiff’s right pinky finger. In opposition to the defendant’s motion for summary judgment, the plaintiff argued that his claim was one for ordinary negligence. Accordingly, he did not submit an expert affidavit in support of his opposition to the defendant’s motion. The Second Department rejected plaintiff’s argument, finding that the alleged failure to properly supervise the therapy session or provide the plaintiff with instructions for burn care sound in medical malpractice, not ordinary negligence. An expert affirmation was, therefore, required to defeat defendant’s prima facie showing of entitlement to summary judgment.
July 8, 2022 Ziemendorff v Chi
Appellate Division, Fourth Department
Trial court erred in finding plaintiff’s expert’s affidavit sufficient to raise an issue of fact as to causation as expert failed to opine that defendant’s alleged failure to timely diagnose the plaintiff’s spinal cord issue diminished his chances of a better outcome.
Plaintiffs commenced this medical malpractice action after plaintiff suffered an epidural abscess that left him partially paralyzed. Plaintiffs alleged that the defendant physician failed to timely diagnose and treat that condition. The physician moved for summary judgment. The motion was denied and the physician appealed. The Fourth Department reversed the order denying the motion for summary judgment and dismissed the action as against that physician. There was no dispute that the physician met his initial burden with respect to both the standard of care being met and the absence of proximate cause. The Fourth Department held that even accepting that the plaintiffs’ expert established an issue of fact as to a deviation from the standard of care, the expert’s affidavit was insufficient to meet the plaintiffs’ burden with respect to proximate cause. The Fourth Department rejected the plaintiffs’ expert’s opinions as to causation, as the expert offered nothing more than a conclusory assertion that the defendant’s deviation from the standard of care caused the plaintiff’s injuries. In reaching its conclusion, it further noted that although it appeared that the plaintiffs’ theory of causation was that the defendant’s alleged failure to timely diagnose the plaintiff’s spinal cord issue diminished his chances of a better outcome, the plaintiffs’ expert never actually rendered that opinion. The plaintiffs thus failed to meet their burden and the Court reversed the trial court’s order denying the defendant’s motion.
August 4, 2022 Braxton v Erie County Medical Ctr. et al.
Appellate Division, Fourth Department
Plaintiff is not required to identify alleged negligent employees – defendant in better position to identify its own employees.
In reversing the trial court’s decision granting summary judgment to ECMC, the Fourth Department held that plaintiff was not required to provide the name of every allegedly negligent actor engaging in conduct within the scope of employment for ECMC inasmuch as ECMC was on notice of the claims against it based on the allegations in the amended complaint, as amplified by plaintiff's bill of particulars to ECMC, noting failures and omissions by ECMC's employees. The Court further noted that ECMC is in the best position to identify its own employees and contractors and, as the creator of decedent's medical records, ECMC had notice of who treated decedent and of any allegations of negligence by its nursing staff.
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Hurwitz Fine's Medical Malpractice & Nursing Home Defense Team
is here to answer your questions:
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