Medical & Nursing Home Liability Pointers - 12/22/21


December 22, 2021


 A Note from Pat Curran

From our team at Hurwitz & Fine, we want to wish all our friends and readers a happy and safe holiday season.

We also want to thank all the caregivers and first responders for their continued efforts in these challenging times.

Thank you to our healthcare workers!


Last month at this time “omicron” was barely in the vocabulary of much of the population, but now, with the holidays upon us, the Omicron variant is now accounting for 73% of new coronavirus infections.  This has created not only an increased burden on our medical facilities and personnel but added even more stress and anxiety to our daily lives as we try to navigate holiday travel and celebration.  Experts are advising that you re-evaluate your holiday plans, and make a risk-benefit calculation based on your family's circumstances.  
‘Tis the holiday season, so we do come bearing gifts.  Click on the links below for printable and downloadable resource guides on the following topics:

We are also offering in-house (webinar) training on New York Nursing Home Regulatory Changes and the Impact of Covid-19 Immunity Statutes on Personal Injury Actions.  Please contact us directly to schedule a one-hour interactive training session for your team.
Attorney Mike Williams, who spends his spare time as an EMT and volunteer firefighter, provides some important holiday season product safety and fire prevention tips!
Our Long Island attorney Jesse Siegel provides some guidance on how to maximize social media discovery in defending a claim in his recent article:  Clickbait: A Refresh on Social Media Discovery.

It was a busy month for the Second Department as they rejected multiple expert opinions.  One expert was rejected as no foundation was laid for testimony outside the expert’s field of specialty.  Another expert was rejected for conclusory opinions and failing to set forth the standard of care for conducting a suicide risk assessment.  Two experts were rejected for submitting, without explanation, affidavits with their names and signatures redacted.   Lastly, the Second Department dismissed Public Health Law § 2801 claims against an assisted living facility as it is not a defined “residential health care facility” subject to the statute.

We hope you have a happy and safe holiday.  See you next year!


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.


Analysis of Recent Court Decisions

December 1, 2021      Montanari v. Lorber  
Appellate Division, Second Department
In classic battle of experts in multi-defendant medical malpractice action, court rejects plaintiff’s expert opinion for failing to explain redacted affidavit.
Plaintiff was brought via ambulance to the defendant St. Francis Hospital and while he was in the triage area, he began to seize and was moved to a code room, and the defendant Scott R. Strumpfler, an emergency medicine physician, began examining him. Approximately five minutes later, plaintiff went into cardiac arrest, was resuscitated, transferred to the intensive care unit, and placed on an Arctic Sun machine, which was used to induce hypothermia. Over the next several days, plaintiff was seen by, among others, the defendants Lance Rubel, a nephrologist; Marianne Hamra, a hospitalist; Jonathan Waxner, a pulmonary and critical care doctor; and Alan Schecter, also a pulmonary and critical care doctor. On April 17, 2013, a nurse practitioner requested a vascular consultation to rule out compartment syndrome. Defendant Richard Matano, a vascular surgeon, examined plaintiff and found his extremities were cyanotic. Both of plaintiff’s calves were rigid, and he was unable to flex or dorsiflex his ankles, even with force. On April 19, 2013, Matano performed fasciotomies and amputated plaintiff’s legs above the knees on April 29, 2013.
On appeal, the Second Department held that the Strumpfler defendants demonstrated their prima facie entitlement to judgment as a matter of law by providing expert opinion that Strumpfler properly ordered hydrocortisone for plaintiff and followed advanced cardiovascular life support protocols to resuscitate him. The Strumpfler defendants' expert averred that it would have taken hours for hydrocortisone to take effect, and as such, Strumpfler administering hydrocortisone a few minutes earlier than he did would have not prevented plaintiff’s cardiac arrest, which occurred approximately five minutes after Strumpfler began to examine him. In opposition however, the plaintiffs raised triable issues of fact. According to the plaintiffs' expert, Strumpfler deviated from the standard of care by, inter alia, failing to speak with ambulance personnel or check both of plaintiff’s arms for a medic-alert bracelet, which steps would have alerted him to plaintiff having Addison's disease and the need to begin administering fluids and hydrocortisone to immediately. The expert averred that hydrocortisone would have begun taking effect within one minute that it would have either prevented cardiac arrest or led to an easier resuscitation and reduced complications from the cardiac arrest, and ultimately would have reduced his risk of developing compartment syndrome or rhabdomyolysis. them.
As for the Waxner defendants, the Second Department held they demonstrated their prima facie entitlement to judgment by providing expert opinion that Waxner and Schecter properly examined plaintiff on April 16 and 17, 2013, and that there was no clinical evidence of compartment syndrome at the time of their examinations. In opposition, the plaintiffs raised triable issues of fact. The plaintiffs' expert opined, among other things, that the physical examinations that Waxner and Schecter conducted were inadequate. The plaintiffs' expert further opined that the signs of compartment syndrome that were apparent on the evening of April 17 were "not something that merely develops within hours" and that, as such, they would have been apparent to Waxner and Schecter had they performed more comprehensive physical examinations on April 16 and 17.
As for the Hamra defendants, the Second Department held they demonstrated their prima facie entitlement to judgment by providing expert opinion that, based on the findings of Hamra and the other doctors who examined plaintiff on April 16 and 17, plaintiff did not have any signs or symptoms consistent with compartment syndrome when Hamra examined him on those dates. He further opined that there was no delay in providing medical care and the plan of care instituted by St. Francis was in keeping with good and accepted medical practice. In opposition, the plaintiffs failed to raise a triable issue of fact, as their expert affirmations were insufficient.  Here, the two expert affirmations that the plaintiffs submitted in opposition to the Hamra defendants' motion had the names and signatures of the physicians redacted. The plaintiffs failed to explain why they were not naming their experts, and there is no proof on this record that the plaintiffs submitted signed and unredacted affirmations to the Supreme Court. Accordingly, the plaintiffs' expert affirmations were insufficient to raise a triable issue of fact.
Rubel demonstrated his prima facie entitlement to judgment as a matter of law dismissing the cause of action by providing expert opinion that Rubel, a nephrologist, correctly noted that plaintiff might be developing rhabdomyolysis; placed plaintiff on slow, low, efficient, daily dialysis until he was stable enough to be placed on conventional dialysis; addressed his fluid management; properly examined his extremities for pitting edema; and properly treated hypokalemia and hyperkalemia. Moreover, he opined that Rubel's care and treatment rendered to plaintiff was confined to Rubel's specialty of nephrology and was in accordance with accepted medical practice. In opposition to Rubel's prima facie showing, the plaintiffs failed to raise a triable issue of fact as plaintiffs' expert was not a nephrologist, and the plaintiffs failed to lay a foundation demonstrating that he or she was possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered was reliable. 
December 1, 2021      Nodar v. Pascaretti  
Appellate Division, Second Department
Defendant's expert's failed to set forth the standard of care for conducting a suicide risk assessment.
The plaintiff commenced this action against, among others, the defendants Cynthia Pascaretti, Daniel Hafner, Mid-Hudson Medical Group, and Mount Kisco Medical Group, P.C., asserting causes of action alleging medical malpractice and loss of services. According to the plaintiffs, Pascaretti, a family nurse practitioner, and Hafner, a medical doctor, treated plaintiff as their patient at Mid-Hudson Medical Group. The plaintiffs alleged that, in July 2014, plaintiff sustained injuries when he attempted suicide by jumping from the roof of his house and that, in effect, the defendants, who had treated him for anxiety and depression since 2009, were negligent for failing to properly conduct a suicide risk assessment while treating him and failing to provide him a proper referral for psychiatric care. The plaintiffs also alleged that the defendants negligently failed to schedule or timely conduct a follow-up visit with him and did not monitor his mental state after changing one of the antidepressant medications they prescribed to him and adding an anti-anxiety medication. The plaintiffs also alleged that the defendants failed to properly prescribe medication. According to the plaintiffs, these alleged failures caused his anxiety and depression to worsen, resulting in the suicide attempt.
Defendants were granted summary judgement at the trial court; however the Second Department reversed and denied their motion finding that the defendants failed to establish, prima facie, that they did not depart from the standard of care, or that any such departure did not proximately cause plaintiff's injuries. With respect to the plaintiffs' allegations that the defendants failed to conduct a proper suicide risk assessment during a scheduled doctor visit, which was just weeks before he attempted suicide by jumping off his roof, the defendants' expert failed to set forth the standard of care for conducting a suicide risk assessment. The expert's conclusory assertion that the suicide risk assessment that was conducted on that date did not deviate from the standard of care was insufficient to refute the plaintiffs' specific allegations of negligence.  In addition, the defendants' expert did not address the plaintiffs' allegation that the defendants failed to schedule or conduct a timely follow-up visit with him after changing one of his antidepressant medications and adding an anti-anxiety medication, or otherwise assert that the one-month follow-up appointment that he was advised to do was appropriate under the circumstances.
December 15, 2021    Broderick v. Amber Court Assisted Living, et al.,  
Appellate Division, Second Department
Public Health Law § 2801 claims dismissed against assisted living facility as it is not a defined “residential health care facility.”
This action was commenced to recover damages for alleged injuries plaintiff sustained while a resident at a licensed assisted living facility controlled and operated by the defendants. The complaint alleged three causes of action, including as a first cause of action to recover damages for violations of Public Health Law §§ 2801-d and 2803-c. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.
The Supreme Court erred in denying that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, alleging violations of Public Health Law §§ 2801-d and 2803-c. Public Health Law article 28 authorizes a private right of action by patients of “residential health care facilities” for the deprivation of rights conferred by statute, regulation and contract, including those enumerated by Public Health Law § 2803-c. “Residential health care facilities" is defined therein as "a nursing home or a facility providing health-related service.” Public Health Law article 46-B, which governs "assisted living" facilities (Public Health Law § 4651[1]), expressly provides that such facilities do not include “residential health care facilities” licensed under Public Health Law article 28 (Public Health Law § 4651[1][a]).
Here, the plaintiff concedes that the facility in which plaintiff was a resident was licensed as an “assisted living” facility, but asserts that it was operated as a de facto residential health care facility by virtue of the health-related services it provided, including management of medications, assistance with dressing and eating, and visits by nursing staff and physicians. Even accepting these allegations as true, they are insufficient to state a claim that the assisted living facility in which plaintiff resided was a residential health care facility against which a private right of action pursuant to Public Health Law article 28 may be maintained.



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]


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