Medical & Nursing Home Liability Pointers - 6/30/21

A Message from Kara Eyre

It is said that the only constant in life is change, and the events of this spring and summer are no exception!  I joined the Hurwitz & Fine Medical & Nursing Home Liability team in May, representing both a major life change for me and a change for the group.  I have spent most of my career as a defense attorney representing physicians, hospitals, and medical institutions in complex matters involving medical malpractice and nursing home negligence, and I am looking forward to digging in and getting to work defending our clients.  Thanks to the warm welcome I have received from my new colleagues at Hurwitz & Fine, this change has been an easy (and welcome!) one.   
 
Beyond the hallways at Hurwitz & Fine, change has also been ubiquitous around New York State with the easing of COVID-19 restrictions following the announcement that 70% of all New Yorkers have received at least one vaccination dose.  It has been impossible not to notice the mask-less, smiling faces around New York in various settings, including retail stores, restaurants, offices, gyms, amusement parks and salons.  While these are certainly welcome changes, employers and employees must also navigate new requirements and responsibilities surrounding vaccination.  Our Labor & Employment team has written extensively on this topic (and more) in Hurwitz & Fine’s COVID-19 Vaccination Updates. 
 
The changes instituted by Governor Cuomo last year, including tolling of statutory time limitations due to the COVID-19 emergency are being addressed by the Courts in New York.  In Brash v. Richards, the Second Department offered clarity on the difference between a toll and a suspension, the former being a period that is not counted when determining whether a deadline has passed and the latter being defined as a pause that expires once lifted.  The Court interpreted the Emergency Orders as a toll, which will result in longer time periods before statutorily imposed deadlines expire.  Understanding these developments is essential to properly defending our clients in ongoing medical and nursing home malpractice litigation.
 
New York Courts are now experiencing an influx in COVID-19 related lawsuits, presenting a direct challenge to the scope and validity of the numerous Executive Orders passed during the pandemic giving immunity to nursing homes and medical facilities.  Here in Western New York, a lawsuit over an elderly couple’s COVID-19 death appears to be one of the first challenges to the immunity granted by the state to nursing homes and medical facilities.  As addressed below, similar lawsuits are also being initiated across the state, and we will be watching the developments involving these lawsuits closely.
 
In addition to litigation flowing from COVID-19, Courts across New York were active this spring and early summer, releasing several interesting decisions impacting medical and nursing home liability, including a First Department decision vacating a $2.5 million award in a case sounding in medical malpractice and nursing home violations under PHL §2801-d and a Third Department decision holding that a clerical mistake made by a nurse resulting in incorrect dosing sounded in medical malpractice rather than ordinary negligence. 

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.
 

Frederick Smith, etc., v. Northern Manhattan Nursing Home
Appellate Division, First Department
June 15, 2021
The First Department vacates award of $2.5 million for pain and suffering because judge failed to determine whether decedent had any level of consciousness before instructing the jury on the elements of conscious pain and suffering.
 
At trial of this case involving claims of medical malpractice and violations of New York State Public Health Law §2801-d, plaintiff presented evidence that the decedent was found non-responsive due to low blood sugar and was then left unmonitored and was not transferred to the hospital until several hours later, leading to brain injury and death.  The jury awarded the plaintiff $2.5 million for pain and suffering, despite the fact that there had been no finding or instruction to the jury on whether the patient had been conscious during the time period involved.
 
The First Department vacated the $2.5 million award for pain and suffering and directed a new trial on damages for pain and suffering.  In support of this holding, the First Department noted the long-standing rule that a jury should not be allowed to award damages for pain and suffering without first determining that the decedent experienced some level of consciousness following the injury.  Interestingly, the Court found no legal basis for applying this rule to negligence/malpractice claims, but not in the context of a violation of PHL §2801-d, which is a separate and distinct cause of action.  The Court noted that by omitting any discussion of “consciousness” from its jury charge or verdict sheet, the issue was improperly taken away from the jury.
 

Holland v. Cayuga Med. Ctr. at Ithaca
Appellate Division, Third Department
June 17, 2021
Action sounds in medical malpractice, not in ordinary negligence, where a doctor ordered that a certain dosage of medication be administered for 1 minute, but was inadvertently programmed into a machine by a nurse for 11 minutes.
 
The plaintiff had been rushed to the hospital after suffering a stroke, and the physician on duty prescribed 90 milligrams of Alteplase (“tPA”) and directed that it be administered so that 10% of the medication was delivered in the first minute, and the remaining 90% was delivered over the following 60 minutes.  However, rather than program the machine to dispense the initial bolus in 1 minute as prescribed, a nurse programmed 11 minutes.  After approximately three minutes, the mistake was discovered and the machine was recalibrated.  The patient initiated the lawsuit alleging that the misadministration of the tPA resulted in permanent aphasia and comprehension limitations.
 
The Third Department held that the case sounded in medical malpractice only, and not both general negligence and medical malpractice.  “Conduct may be deemed malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician” (internal quotations omitted).  The key question is whether the acts or omissions complained of require special medical or scientific skills not possessed by lay persons.  The Court held that the actions of the nurse, calibrating a machine to administer tPA medication, necessarily involved medical skills and therefore was a medical malpractice case, not ordinary negligence.

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