Medical & Nursing Home Liability Pointers - 7/30/21


Hurwitz & Fine's
Medical & Nursing Home Liability Pointers

July 30, 2021


A Message from Stephanie McCance

The ever-changing pandemic world marches on.  On the one hand, restaurants and borders are re-opening.  Our office even conducted an in-person jury trial last week. On the other hand, the Delta variant is a cause for concern, with indoor mask mandates, even for the vaccinated population, re-entering the picture. 
The question we often hear is whether an employer can require vaccination to return to the workplace. Our Employment & Business Litigation Team tackles that and many other questions in their most recent publication, including an analysis of a recent federal court decision rejecting a challenge by Texas medical workers to their employer’s COVID-19 mandatory vaccination policy.  Further, attorney Katie Wood provides an update on New York’s HERO Act following the state’s release of model airborne infection disease prevention plans.
In firm news, our state-wide growth continues as we welcome litigation attorney Cara M. Pascarella to our Melville, New York, office, where she will be working in the areas of premises liability, products, construction accidents, and transportation negligence.
We are also very proud of our President and Managing Partner, Jody E. Briandi, who was recently featured in a Buffalo Business First Diversity & Inclusion panel discussion.
There are some interesting appellate decisions that are worth a read this month, including the duty of care of a radiologist interpreting images and reporting the findings to a treating physician, an analysis of the “continuous treatment doctrine” and how it can toll a statute of limitations, and whether informed consent can be proven absent a signed consent form.


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


DOJ Drops NY COVID-19 Nursing Home Probe
After a year-long inquiry, the Department of Justice has announced that there will be no civil rights investigation into New York’s handling of COVID-19 deaths at state-run nursing homes.  The Justice Department's review only pertained to state-run facilities, not New York's COVID-19 policies at all private and public homes.  It is still believed that Federal prosecutors in New York City continue to investigate the state policy in March 2020 that pressed nursing homes to accept COVID-positive residents, an order that was overturned two months later.  

Enforcement of the CMS Interoperability and Patient Access Final Rule Began July 1
As part of the 21st Century Cures Act, the government will require that all healthcare providers grant patients access to their health information as of July 1, 2021. The CMS Interoperability and Patient Access final rule requires providers to meet minimum interoperability standards.  The goal is to eliminate barriers of access to health data for patients and increase communication among medical institutions.  Providers will be required to make patient health information available through application programming interfaces (APIs) and hospitals that use electronic health record systems (EHRs) must demonstrate that they can comply with federal data exchange standards.  For example, a hospital must show that its system can produce an electronic patient event notification when a patient is admitted or discharged.  
These new regulations aim to afford providers access to more complete clinical patient histories and to empower patients to become more engaged in their healthcare decision.  Nevertheless, implementation of information technology systems that meet interoperability standards while also maintaining data security and privacy presents a challenge. It is anticipated that enforcement of interoperability standards will promote increased standardization of third-party platforms for configuring, extracting, and mapping data across separate healthcare organizations.

US Department of Veterans Affairs Mandates COVID-19 Vaccinations Among Employees
The Department of Veterans Affairs, one of the nation’s largest employers of healthcare workers, announced this week that it will require COVID-19 vaccines for its healthcare workforce.  Employees will have eight weeks to get fully vaccinated.  A total of 146 VA healthcare workers have died due to complications from COVID-19 since the pandemic began, according to agency data.  The Department has more than 426,000 employees, including 382,672 in the Veterans Health Administration, according to the most recent data from the Office of Personnel Management.
The VA’s announcement may foreshadow the future trend across healthcare more broadly, as several states are experiencing an uptick in COVID-19 cases among the unvaccinated, in part due to the more infectious delta variant.  This week, a group of over 50 major medical organizations, including the American Medical Association, the American College of Physicians, and the American Academy of Pediatrics, issued a joint statement calling for all healthcare and long-term care employers to mandate that employees be vaccinated against COVID-19. 

Even as NY COVID-19 Emergency Orders Disappear, Telemedicine Persists
Governor Cuomo issued Executive Order 210 in June, officially ending the New York State of Emergency caused by COVID-19 and thus, ending the New York telehealth waivers that had previously allowed many digital health companies and health systems to utilize out-of-state providers to expand services and cover understaffed departments.  Nevertheless, it appears that telemedicine, at least in certain circumstances, is here to stay.   After the issuance of E.O. 210, the NYS Department of health issued guidance that continues to allow for Medicaid providers to utilize telemedicine where appropriate.  As part of the guidance, NYS Medicaid made clear that it will continue to reimburse for telemedicine services where it is medically necessary.  When considering potential liability implications for telemedicine encounters, medical providers should work to develop best practices to ensure comprehensive follow-up and documentation, both to ensure patient safety and compliance with the standard of care.



Analysis of Recent Court Decisions

June 23, 2021 Mann v. Okere et al.
Appellate Division, Second Department
Radiologist did not owe plaintiff a duty of care beyond interpreting routine mammography images and reporting findings to plaintiff’s treating physician.

Plaintiff obtained a prescription for a routine mammogram from defendant physician, which was read and interpreted by defendant radiologist. The radiologist noted no suspicious findings. Plaintiff was subsequently diagnosed with breast cancer one year later.
Defendant radiologist moved for summary judgment on the ground that he did not assume a duty of care toward plaintiff beyond reading the mammography images and documenting his findings. The mere fact that plaintiff had indicated on the mammography worksheet that she experienced some pain in her left breast did not impose a heightened duty of care on the defendant, who never saw or treated plaintiff, and whose only role was to interpret the images and report his findings to plaintiff’s prescribing physician. The Second Department reversed the trial court and granted summary judgment to the defendant radiologist.
June 24, 2021 Vines v. New York City Health and Hospitals Corp.
Appellate Division, First Department
Claims time barred as examinations during the period at issue revealed no symptoms being treated that indicate the presence of the later diagnosed condition.
The First Department affirmed the granting of summary judgment to defendant, holding that plaintiff had failed to raise a triable issue of fact as to whether the statute of limitations on her medical malpractice claims were tolled by the continuous treatment doctrine for the period preceding July 10, 2010. Plaintiff was first diagnosed with Thymoma on July 19, 2011, when chest imaging revealed multiple masses. She subsequently brought this lawsuit against her medical providers for failure to diagnose.
The symptoms treated during routine, diagnostic examinations during the period at issue did not indicate the presence of thymoma. Plaintiff’s complaints of chest pain were intermittent, multiple chest x-rays were clear, and her cough was eventually controlled by medication and dietary restrictions. There was no follow up treatment anticipated. As such, there was no continuous treatment and claims for treatment occurring prior to July 10, 2010 were dismissed as time barred.
July 16, 2021 Fineberg v. Anain
Appellate Division, Fourth Department
Triable issue of fact raised where defendant’s testimony stated that written consent was obtained, and the preoperative consent form was devoid of plaintiff’s signature.
Plaintiff raised this action for medical malpractice due to lack of informed consent after she allegedly sustained a nerve injury following surgery. Plaintiff’s preoperative consent form maintained by defendant’s office was neither signed nor initialed by plaintiff. Though written consent isn’t necessary if verbal consent is obtained, defendant stated in her affidavit, testified at her deposition, and noted in her office record that she had obtained plaintiff’s written consent. In light of the discrepancy between the documentary evidence and defendant’s statements, there was a triable issue of fact as to whether informed consent was obtained



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]
Stephanie L. McCance, 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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