Medical & Nursing Home Liability Pointers - 11/24/21

Hurwitz & Fine's
Medical & Nursing Home Liability Pointers

November 24, 2021
  A Note from Stephanie L. McCance
From our team here at Hurwitz & Fine, we would like to wish all our friends a Happy Thanksgiving, and a special thank you to all the caregivers and front-line workers continuing to battle this seemingly never-ending pandemic.
To show our gratitude, we are offering in-house (webinar) training on New York Nursing Home Regulatory Changes and the Impact of Covid-19 Immunity Statutes on Nursing Home Liability in Personal Injury Actions.  Please contact us directly to schedule a one-hour interactive training session for your team.
There is big news from the Second Circuit as it has just vacated a prior injunction blocking New York from enforcing its COVID-19 vaccine mandate for healthcare workers against those with religious objections, effectively ending any religious exemption to the vaccine mandate for healthcare workers.
Like all other aspects of American life, Covid-19 and infrastructure spending top the November news in healthcare.  With COVID-19 rates and hospitalization numbers peaking again, Western New York has re-instituted a mask mandate for indoor public places. Hospitals continue to grapple with staffing shortages and shifting directives relative to vaccine mandates for healthcare workers, while the bipartisan infrastructure bill is poised to improve healthcare access to underserved communities through better access to high-quality broadband internet.

On November 4, 2021, the U.S. Occupational Safety and Health Administration (“OSHA”) issued a new Emergency Temporary Standard (“ETS”) “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace.” Employment and Business litigator Joseph S. Brown provides an overview of the basics of the ETS, an update on legal challenges to the rule and what employers can do now to prepare.
Our case reviews this month offer some reassurance that our courts are taking the time to review and assess expert proof submitted in malpractice and nursing home negligence cases, and not simply finding a question of fact based on superficial competing expert opinions.  The Fourth Department dug deep into a plaintiff’s expert opinion to find it was inherently contradictory.  The First Department rejected a defendant’s expert opinion as it merely denied, in conclusory terms, plaintiff's allegations regarding defendant’s negligent care, without any specificity or explanation. Lastly, the Second Department dismisses plaintiff’s case for not submitting an expert opinion to rebut defendant's expert's opinion that failure to provide plaintiff with a bed alarm was not malpractice or a proximate cause of the decedent's injuries.

In other news of interest, Hurwitz and Fine Managing Partner, Jody E. Briandi was recently featured in the 2022 publication of U.S. News - Best Lawyers "Best Law Firms" for her article, "Navigating the New Normal," in which she discusses how the pandemic has affected law firm culture and work environment.

While on the topic of Best Lawyers, Hurwitz & Fine, P.C. has been ranked as a Tier One Law Firm in eight practice areas in 2022 U.S. News & World Report and Best Lawyers, including personal injury litigation – defendants, insurance law, and litigation – insurance.
Your COVID-19 Resource Center: Legal Updates Regarding the Coronavirus
Our teams are hard at work keeping you updated on the latest New York State and Federal updates concerning the coronavirus. Our Resource Center compiles all of the information that could affect you and your business during this pandemic.
Latest News & Developments
As we previously reported, a U.S. District Court Judge had issued a temporary restraining order in September blocking New York from enforcing its COVID-19 vaccine mandate for healthcare workers against those with religious objections.  However, a three-judge panel in the Second Circuit recently vacated the injunction, effectively ending any religious exemption to the vaccine mandate for healthcare workers.  Prior to this ruling, nearly 16,000 healthcare employees in New York State had been granted religious exemptions by their employers.  Last week, New York State sent a letter to health systems notifying them that previously exempted healthcare employees would have until Monday, November 22, to receive the first dose of a COVID-19 vaccine.  It is expected that the Second Circuit’s decision will be appealed to the U.S. Supreme Court.  Some healthcare workers have reported resigning rather than complying with the vaccine mandate, but Gov. Hochul maintains that the State is prepared to handle any staff shortages as a result of the requirement. 

This month, President Joe Biden, signed into law the Infrastructure Investment and Jobs Act, better-known as the $1 trillion bipartisan infrastructure bill.  Although the bill is mainly focused on so-called traditional infrastructure, the bill contains several provisions that will have a lasting impact on the healthcare industry, mainly by increased investment in expanding reliable broadband internet.  High-speed internet is essential to expanding access to healthcare, particularly in rural areas that have been plagued by hospital facility closures over the last decade.  The measure also creates a $100 million cyber response and recovery fund, which will assist public and private entities, including hospitals, in responding to cyber security breaches.
Relatedly, the House of Representatives just passed Biden’s Build Back Better package, which, if it can survive scrutiny in the Senate, will have wide-reaching implications for healthcare.  For one, the Bill includes provisions allowing Medicare to negotiate lower prices for certain prescription drugs, creates a $2,000 annual cap on out-of-pocket costs for seniors in Medicare Part D, and prevents drug-makers from raising prices above the rate of inflation.  The legislation also gives enhanced subsidies to those in states that opted out of Medicaid expansion.

As staffing shortages have plagued the healthcare industry, many medical institutions are attempting to respond to the crisis through a variety of measures.  Many hospitals are offering large cash referral bonuses for nurses, some institutions are offering staff housing, and nursing schools around the country are launching accelerated programs.  Here in Western New York, medial institutions are experimenting with similar approaches.  Local hospitals are hiring increasing numbers of travelling nurses, for example, and many are offering signing bonuses to new hires.  In the meantime, many hospitals are covering some of the gaps in staffing by offering overtime.  Despite significant challenges in a very competitive labor market for skilled healthcare workers, some local institutions have reported a measure of success in increasing staff.  Whether this can be maintained long-term, particularly in an industry that even before the Covid-19 pandemic suffered with high rates of burnout and turnover, remains to be seen.
Analysis of Recent Court Decisions
November 19, 2021   Simko v. Rochester Gen. Hosp.  
Appellate Division, Fourth Department
Court rejects plaintiff’s expert opinion that immunoglobulin therapy should have been administered sooner as the expert also opined that the therapy was administered within an appropriate timeframe. 

Plaintiffs commenced this medical malpractice action after plaintiff was afflicted with Guillain-Barré Syndrome (GBS), claiming that defendants failed to timely diagnose and treat the condition. The Fourth Department affirmed the order that granted the motion of defendants University of Rochester, Rochester General Hospital and Rochester Regional Health for summary judgment dismissing the complaint against them.
The Fourth Department concluded that the opinion of plaintiffs' expert neurologist with respect to the issue of proximate cause was insufficient to defeat defendants' motions for summary judgment. Plaintiffs' expert acknowledged that, to be effective, intravenous immunoglobulin therapy must be commenced within a certain time of the onset of GBS symptoms, and it is undisputed that, in this case, the therapy was commenced within that time.  While plaintiffs' theory of causation is predicated on the allegation that defendants' failure or delay in diagnosing plaintiff's GBS diminished her chance of a better outcome, the opinion of plaintiffs' expert that treatment should have been started sooner was contrary to what the expert agreed was appropriate. We therefore conclude that plaintiffs' expert offered only conclusory and speculative assertions that earlier detection and treatment would have produced a different outcome.  
November 9, 2021     Cortez v. Terrence Cardinal Cooke Health Center  
Appellate Division, First Department
Defendant's expert's bare denial of the allegations of nursing home negligence failed to meet prima facie burden on summary judgment.
The First Department reversed the decision of the Supreme Court, Bronx County, which granted in part defendant's motion for summary judgment to the extent it dismissed all causes of action other than those claims related to the formation, care, and treatment of decedent's bedsores while in defendant's care. The First Department held that defendant failed to sustain its initial burden in demonstrating entitlement to judgment as a matter of law as defendant’s expert merely denied, in conclusory terms, plaintiff's allegations regarding defendant’s negligent care of decedent during her admission period, particularly with respect to her nutrition and hydration. He failed to sufficiently explain the rapid decline of decedent's nutritional levels, which were within normal limits upon her admission, as well as troubling inconsistencies in her medical record regarding the monitoring of her weight. He did not specify what affirmative steps defendant took to address decedent's continued weight loss and dehydration, or how the resulting kidney damage and related health issues were not a contributing factor to her death three months later.
Defendant's expert's bare denial of the allegations also failed to establish, prima facie, that defendant did not violate any contract, statute, regulation, code or rule, and that the decedent was not injured by such violation, to warrant dismissal of plaintiff's claims under Public Health Law § 2801-d.
November 3, 2021     Losak v. St. James Rehab. & Healthcare Ctr.  
Appellate Division, Second Department
Plaintiff fails to provide expert opinion to rebut defendant's expert's opinion that failure to provide plaintiff with a bed alarm was not a departure from good and accepted medical practice or that any departure was not a proximate cause of the decedent's injuries.

Second Department reverses and grants summary judgment to defendant dismissing so much of the complaint as alleged a failure to provide the plaintiff's decedent with a bed alarm.    Decedent fell while walking back to his bed from the bathroom, unattended. He was hospitalized for the injuries he sustained in the fall, and ultimately died in the hospital. The essence of the allegation that St. James improperly failed to provide the decedent with a bed alarm which would have prevented his fall is that it improperly assessed his condition and the degree of supervision necessary to prevent him from falling, which sounds in medical malpractice. Thus, with respect to this allegation, St. James bore the initial burden of establishing either that there was no departure from good and accepted medical practice or that any departure was not a proximate cause of the decedent's injuries.
In response to St. James' prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact by submitting an expert opinion that specifically addressed the defense expert's assertions. Accordingly, the Supreme Court should have granted that branch of St. James' motion which was for summary judgment dismissing so much of the complaint as alleged a failure to provide the decedent with a bed alarm.
Hurwitz & Fine's Medical & Nursing Home Defense Team
With over 50 years of combined experience in defending doctors, nurses, and medical professionals, as well as hospitals, institutions, and nursing homes, the Hurwitz & Fine Medical & Nursing Home Defense Team is here for you.  

Our defense team has the trial results and experience to vigorously defend our caregivers facing blame in the most trying of circumstances.  Patrick B. Curran has dedicated his 40-year legal career to defending medical professionals and nursing homes from claims of negligence and malpractice.  He has also served as an adjunct faculty member at the University at Buffalo School of Law, and lecturer for the University at Buffalo School of Medicine and School of Nursing, as well as for other health care professional and community groups.  V. Christopher Potenza is a seasoned and trial-tested litigator, having obtained defense verdicts across New York State on complex matters. He has substantial experience defending claims at the federal, state, and appellate levels.  Kara M. Eyre has 10 years’ experience defending physicians, hospitals, and medical institutions in complex matters involving medical malpractice and nursing home negligence through all phases of litigation, including trial and appeal.  Stephanie L. McCance offers her international legal experience with strong research, analysis and advocacy skills, with extensive involvement in complex litigation, including all phases of discovery, depositions, motions, and appeals.

As a public service, we are pleased to present this newsletter providing the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities.  In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.
If you know of others who may wish to subscribe to these legal alerts, please feel free to forward it. If you wish to subscribe or unsubscribe, please do so at the bottom of this newsletter.
Your Medical Malpractice & Nursing Home Defense Team
is here to answer your questions:

V. Christopher Potenza, Esq. ([email protected])
Patrick B. Curran, Esq. ([email protected])

Kara M. Eyre, Esq. ([email protected]
Read Our Additional Newsletters
Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Contact Dan Kohane at [email protected]  to subscribe.

Employment & Business Litigation Pointers:  Employment & Business Litigation Pointers aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments.  Contact Joe Brown at [email protected] to subscribe.

Labor Law Pointers:  Hurwitz & Fine, P.C.’s Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law and construction accident case decided during the month by the Appellate Courts. Contact Dave Adams at [email protected] to subscribe.

Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected]  to subscribe.

Products Liability Pointers:   This monthly 
newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 
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