|
|
December 8, 2025
|
|
 A Note from Liz Midgley:
Happy December!
It’s frigid cold and we have had some snow events already, but we at Hurwitz Fine, and especially in the Medical Malpractice and Nursing Home group, have a lot to be thankful for this year!
Jay Crowley and Zach Raber, who some of you will remember from their time with us as summer associates and contributing authors to this newsletter, have joined the firm full time following graduation from law school. And, even better, they both have passed the bar! By the time you get our next Pointers, they will be fully-admitted attorneys. Jay, who is primarily based out of our Rochester office, is also joining our Medical Malpractice team, which will help us provide even better service to our clients across the state!
Another amazing addition to our team is Nicole Schreib, who joins us as Special Counsel. Nicole has over 25 years of experience in civil litigation, including as Assistant Staff Counsel to a large national insurance carrier for over 10 years, defending both personal and commercial policy holders in a wide range of tort actions involving motor vehicle accidents, wrongful death, premises liability, and product liability. Prior to that, she represented both plaintiffs and defendants across multiple practice areas including medical malpractice, municipal liability, and labor law. We are so happy Nicole has joined us!
In other news, the Grieving Families Act was sent for the fourth time to Governor Hochul and, on December 5, she vetoed the Act for the fourth consecutive year. In her veto memo, Governor Hochul offered support for the cause, but again cited concerns over costs, economic uncertainty, and unintended consequences to New York consumers needing health care. For further background, read our prior analysis of the bill: Grieving Families Act Update: Meet the New Bill, Same as the Old Bill.
We are also carefully watching for the Supreme Court’s decision in Berk v. Choy, which addresses whether a state law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court. Argument was October 6, and can be found here. Be prepared for a special Medical Malpractice Pointers when that decision comes out!
Now, onto interesting cases from the past few months across the State. Big thank you to Gabrielle Markle, Noah Neale, and Michael Lieberman for their case summaries for this Pointers.
Want to see us address something in a future Pointers? Send us an email!
|
|
|
Medical Malpractice and Nursing Home Negligence Case Updates
|
|
|
9/18/2025 Felton v. St. Joseph Hospital
Appellate Division, First Department
First Department decides Hospital did not infringe plaintiffs’ rights of sepulcher by relying on hospital and nursing home records to identify decedent’s next of kin.
After the death of a patient, the defendant hospital identified decedent’s next of kin by relying on hospital records and nursing home record which referred to the individual as decedent’s “wife” and “spouse.” The identified next of kin authorized the decedent’s body to be released to a funeral home and subsequently authorized the cremation of decedent’s remains. Plaintiffs sued defendant hospital, alleging that the identified next of kin was not decedent’s spouse, but rather his domestic partner; and that the defendant hospital therefore violated the plaintiffs’ rights to control the disposition of decedent’s remains under Public Health Law § 4201(7).
The First Department held that there was no violation of plaintiffs’ rights of sepulcher. They held that under the Public Health Law there is no affirmative duty to investigate a decedent’s next of kin absent “incomplete or suspicious documents or other information that would cast doubt upon an individual’s authority to control a decedent’s remains.” There was no such cause for suspicion in this case, as the supposed next of kin was able to provide decedent’s personal information including his social security number and his parents’ names. Additionally, plaintiffs were aware of the decedent’s passing and made no objection to the hospital regarding the alleged domestic partner’s authority.
Do you have more questions on loss of sepulcher matters? Hurwitz Fine now has a Sepulchral Law team. To learn more about the team click here.
8/06/2025 Raymond v. NYU Winthrop Hosp.
Appellate Division, Second Department
Second Department Finds Expert Affidavit Insufficient to Support Defendants’ Motion for Summary Judgment When Defendant Cannot Recall Surgical Procedure
Plaintiff presented to defendant NYU Winthrop Hospital for a sinus surgery with defendant Stephen Slavin. As part of the preparation for the surgery, defendant Slavin performed a procedure known as an endotracheal intubation on plaintiff. Plaintiff was injured during the procedure and subsequently sued both the hospital and defendant Slavin under a medical malpractice theory.
Defendant Slavin moved for summary judgment on the grounds that he did not deviate from the standard of care and in any event was not a cause of plaintiff’s injuries. Defendant’s motion was supported by an expert affirmation which opined, among other things, that defendant Slavin “appropriately downsize[ed] the diameter of the endotracheal tube.”
Plaintiff opposed defendant’s motion, specifically pointing to defendant’s expert affirmation as conclusory and unsupported by the record on the grounds that defendant Slavin, in his own deposition, said he could not recall several critical details about the procedure, including “the juncture at which he switched from a 7-millimeter endotracheal tube to a 5.5-millimeter one, whether he encountered any resistance when intubating the plaintiff, or what caused his difficulty intubating the plaintiff.”
The Second Department sided with plaintiff, observing that defendant’s expert could not properly opine that defendant appropriately downsized the tube when defendant himself established on the record that he did not recall the details of the intubation.
11/13/2025 Cho v. New York State Department of Health, Board of Professional Medical Conduct, et al.
Appellate Division, Third Department
Third Department upholds Board of Professional Medical Conduct revocation of Petitioner’s Medical License
Petitioner, an orthopedic surgeon, licensed to practice medicine in New York, commenced an Article 78 proceeding challenging the Administrative Review Board for Professional Medical Conduct determination of license revocation.
In July 2022, petitioner was convicted of three crimes arising from misconduct with a patient. As a result of his conviction, the Bureau of Professional Misconduct issued a statement of charges alleging that petitioner’s conviction constituted professional misconduct and a hearing was held by the Hearing Committee of the State Board for Professional Misconduct.
The Hearing Committee found that, while petitioner’s actions warranted a penalty, given testimony regarding his good character, petitioner’s license should be suspended only until he fulfilled specific medial education requirements. Following this decision, the Bureau sought review of the Hearing Committee’s by the Administrative Review Board for Professional Medical Conduct (hereinafter the ARB). After reviewing the parties' respective submissions, the ARB agreed with the Hearing Committee that petitioner's actions constituted professional misconduct but determined that his license to practice medicine in New York should be revoked as opposed to temporarily suspended. Petitioner commenced this proceeding challenging only the penalty of license revocation.
The Third Department’s review was limited to analyzing whether the ARB’s determination was “arbitrary and capricious affected by error of law or an abuse of discretion…” The Court rejected petitioner’s claim that the Hearing Committee’s reliance on the underlying criminal complaint violated his due process rights as he failed to raise that argument before the Hearing Committee, noting that he consented to its admission. The Court found no merit to his contention that the Hearing Committee improperly determined that his conduct had occurred during a patient encounter, as his brief conceded that his criminal conviction stemmed from conduct during a medical examination of a patient. The Court held the ARB could rationally conclude he lacked remorse and posed a public danger, citing to his testimony that the “patient had some delusionary issues”. Accordingly, the Court confirmed the ARB’s determination regarding the penalty of revocation of petitioner’s license to practice medicine without costs and dismissed the petition.
7/25/2025 Kristie M. v. Mercy Hosp. of Buffalo
Appellate Division, Fourth Department
Fourth Department Rejects Defendant’s Argument that Plaintiff’s Cause of Action was Improperly Raised in Reply Papers
Plaintiff sued Mercy Hospital of Buffalo on a number of medical malpractice theories revolving around treatment to her infant son following his premature birth. Defendant moved for summary judgment. After receiving plaintiff’s opposition, defendant, in their reply papers, claimed that plaintiff improperly raised a new theory of liability, failure to diagnose, in opposition to the motion.
Preliminarily, the Court affirmed the lower court’s denial of defendant’s motion, noting that although defendant met their burden as to compliance with the standard of care and causation, plaintiff’s expert affidavit sufficiently raised an issue of fact by creating the classic “battle of the experts.”
The Court went on to evaluate defendant’s claim that plaintiff improperly raised a new theory of liability in their opposition. The Court articulated the standard for such an argument, that “[i]n a medical malpractice action, a plaintiff’s bill of particulars need only make a reasonable attempt to amplify the pleading, limit the proof and prevent surprise at trial.”
After reviewing plaintiff’s complaint, bill of particulars, and amended bill of particulars, the Fourth Department concluded that plaintiff provided sufficient notice that her claims included a failure to diagnose. The Court went on to observe that defendant had waived the right to contend that plaintiff raised a theory of liability in her Bill of Particulars that was not present in her complaint by not specifically moving for summary judgment on that basis.
|
|
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.
|
|
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.
Labor Law Pointers: 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.
|
|
Hurwitz Fine P.C.
Buffalo
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874
Long Island
25 Melville Park Road, Suite 260, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313
Rochester
100 Office Park Way, Pittsford, NY 14534
Phone: 585-454-6850, Fax: 585-270-4572
Albany
Phone: 518-641-0398
Additional Offices
Albion | Amherst | Hartford, CT | Englewood, NJ | Niagara Falls
Hurwitz Fine P.C. is a full-service law firm providing legal services
throughout the State of New York
www.hurwitzfine.com
© 2025, Hurwitz Fine P.C. All Rights Reserved
In some jurisdictions, newsletters such as this may be considered Attorney Advertising.
|
|
|
|
|
