Medical & Nursing Home Liability Pointers - 09/06/2024

 A Note from Liz Midgley:

It’s September! You know what that means: kids are back in school, weather starts to cool, football season starts (Go Bills!), and the Appellate Divisions are back in business!  While we wait for the Appellate Courts to ramp up again, we scoured the state for other notable cases that have come down this year. The cases we highlight in this Pointers include a mother’s claim for emotional damages from an in utero injury to a child, a blind patient’s fall from an examination table as held to be malpractice, the enforceability of a nursing home arbitration agreement, and the constitutionality of NYS minimum spending regulations. Thank you to our Summer Law Clerk Zachary Raber for his hard work in compiling these decisions.
 
September also means DRI.  My partner Steve Sorrels and I will be attending this month’s DRI Senior Living and Long-Term Care Litigation Seminar in Chicago. Hurwitz Fine is a sponsor of the event, and there is an amazing lineup of programming.  Feel free to drop me a note if you will be attending as we would love to say hi!
 
We are excited to announce that the Medical Malpractice and Nursing Home Defense Team at Hurwitz Fine has been growing!  Attorney Alexandria Awad joined our team in December.  Alex comes to us with years of experience in the field – both as a defense attorney and plaintiff attorney. She brings great energy and experience to the team, and we are lucky to have her! Attorney Tyler Eckert also joined Hurwitz Fine in July of this year. He is working with a few of our practice groups, including the Med Mal/Nursing Home Team. Tyler has experience in a number of fields including on the plaintiff-side of things, so we are so happy that he can bring his knowledge to our team. Also, Attorney Gabrielle Markle is back!  You may remember her from, oh, just last year. Gabe decided she missed us too much to stay away any longer, and is working on our Nursing Home cases.  We missed you, too, Gabe! Welcome to all of our new (and new-ish) team members!

In other news, for now the third straight year, New York’s legislature has passed a 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 who can seek recovery for a fatality.  The revised bill has not yet been sent to the Governor.  As addressed in our update, it does not appear that these modest revisions address the Governor’s prior concerns in any meaningful way as it merely limits, but does not eliminate, retroactivity, provides no cap on damages, and does not exempt claims for medical malpractice!
 
Want to see us address something in a future Pointers? Send us an email!

Analysis of Recent Court Decisions

May 23, 2024        Sanmiguel v. Grimaldi
Appellate Division, First Department
First Department questions prior precedent and permits mother’s claim for emotional damages from in utero injury to child.

A child died eight days after birth following 40 hours of labor and two unsuccessful vacuum extractions, which the patient claimed she refused. The plaintiff sued for, among other things, lack of informed consent, claiming emotional harm including PTSD, depression, and anxiety, which led to a five-day involuntary hospitalization at Bellevue Hospital. The court questioned the continued relevance of Sheppard-Mobley v King, 4 N.Y.3.d 627 (2005) which held, in an action for medical malpractice, a mother cannot recover for emotional harm if the baby is born alive and there is no independent physical injury to the mother. The court distinguished Sheppard-Mobley on the grounds the bar to the mother’s recovery for emotional harm if her baby is born alive does not apply to a lack-of-informed consent, as opposed to a medical malpractice cause of action. The court explicitly stated that these claims differ to the extent that a prenatal claim for lack of informed consent implicates the prospective mother's active role as decisionmaker for herself and on behalf of her fetus, with both capacities concerning the mother's right to the integrity of her body.  In permitting recovery in this case on the lack of informed consent cause of action, the First Department openly called for the Court of Appeals to revisit Sheppard-Mobley and permit these claims under the broader theories of medical malpractice.


May 22, 2024       Snow v. Gotham Staffing, LLC, 
Appellate Divison, Second Department
Blind patient’s fall from examination table is a claim for medical malpractice, not ordinary negligence.

The estate of a legally blind patient who fell from an examination table sued the staffing agency and its nurse, alleging negligence. The defendants requested to transfer the case from the negligence part to the medical malpractice part. Although initially denied by the Kings County Supreme Court, the Second Department reversed the decision on appeal, determining that, given the patient's visual impairment, the claims were rooted in medical malpractice rather than ordinary negligence, focusing on the level of supervision, nursing care, security required, and medication administration.

 
March 6, 2024       Lisi v. New York Center for Rehabilitation and Nursing, 
Appellate Division, Second Department
Arbitration provision in nursing home admission agreement is not enforceable if signed by family member without evidence of authority to sign on resident’s behalf.

The Second Department reversed the lower court’s decision, determining that the defendant nursing home’s motion to compel arbitration of the wrongful death action should not have been granted. The decedent’s daughter signed the nursing-home admission agreement as the “responsible party.” Because there was no indication decedent agreed to have her daughter act on her behalf, the nursing home could not claim the daughter had the “apparent authority” to bind decedent to the agreement. Therefore, the nursing home could not enforce the arbitration clause in the wrongful death action.

June 20, 2024      Grand South Point, LLC v. Bassett
Appellate Division, Third Department 
Third Department upholds the constitutionality of NYS minimum spending regulations.

The Third Department issued a detailed ruling affirming the constitutionality of 10 NYCRR 415.23, a regulation under the Public Health Law that governs how nursing homes must manage their income and profit margins. Briefly, this regulation mandates that by January 1, 2022, residential health care facilities must allocate their revenue as follows: at least 70% of revenue must be spent on direct resident care, and 40% must be spent on resident-facing staffing, 15% can be offset by costs related to contracted services provided by registered professional nurses, licensed practical nurses, or certified nurse aides. Additionally, the regulation allows the Commissioner to recoup any “excessive total operating revenue” where the “facility’s total operating revenue exceeds total operating and non-operating expenses by more than 5% of total operating revenue.”

July 26, 2024     Revere v. Burke, 229 A.D.3d 1212 
Appellate Division, Fourth Department
Fourth Department upholds defense verdict for allergist on claim of missed diagnosis of a brain tumor where patient failed to return for follow-up appointment.

The Fourth Department overturned a lower court decision and reinstated a jury verdict in a case where the plaintiff, who had symptoms including loss of taste and smell, was referred to an allergist, who prescribed nasal steroids and ordered allergen testing. The plaintiff did not return for a follow-up appointment, of which the allergist was unaware.  Years later, the plaintiff filed a lawsuit against the allergist and others, claiming a missed diagnosis of a brain tumor. Although the jury originally ruled in favor of the defendants, the lower court judge ordered a new trial, arguing that the jury's verdict was not based on a fair interpretation of the evidence. The appellate court disagreed, finding that allergist’s lack of knowledge about the missed appointment and the absence of evidence of negligence on her part or the practice's part in failing to learn of the missed appointment, to inform the allergist of the no-show, or failing to themselves contact the primary care provider, justified the original verdict.