Medical & Nursing Home Liability Pointers - 9/22/21


Hurwitz & Fine's
Medical & Nursing Home Liability Pointers

September 22, 2021


A Message from Kara M. Eyre

I hope to see you at this week’s DRI 2021 Senior Living and Long-Term Care Litigation Seminar in fabulous Las Vegas, NV.  It is always a great event, attendance looks strong, and it will be so nice to meet and network with other leaders in our industry.  Please feel free to send me a message if you will be attendance and want to say hello.  There are so many timely and relevant topics being presented that we will be reporting on next month, including: Juror Perspectives in the Post-COVID Era, Defending Senior Living Investor Relationships, Important Regulatory Developments, and of course, COVID-19 Legal Updates. 
We have a lot of exciting firm news to share this month:

  • Hurwitz & Fine welcomed five new associates pending admission to the firm’s General Litigation and Insurance Coverage teams. This is the largest hiring class we have ever had in the firm’s 44-year history!
  • We are proud to announce that Hurwitz & Fine is participating in the Midsize Mansfield Rule Certification program. This national diversity certification is an 18-month rigorous process designed to increase the representation of diverse lawyers in leadership by broadening the pool of women, LGBTQ+ lawyers, lawyers with disabilities, and racial/ethnic minority lawyers who are considered for entry-level and lateral attorney job openings, leadership opportunities, equity partner promotions, and opportunities to connect with clients. This certification is another positive step we are taking as a firm toward achieving our goals of creating and maintaining a diverse team of attorneys to partner with our clients.
  • Hurwitz & Fine was also recently honored as a finalist in Buffalo Business First’s 2021 Healthiest Employers.
  • I would also like to congratulate those that appeared in the 2021 Upstate New York Super Lawyers list. A total of 28 Hurwitz & Fine attorneys made the list this year, including the members of this team, Chris Potenza, Pat Curran, Stephanie McCance, and yours truly.

COVID-19 continues to dominate our lives and has placed tremendous strain on the healthcare industry, leading to widespread staffing shortages and continued crisis management. 
In what must be labeled a highly controversial decision, U.S. District Court Judge David Hurd issued a temporary restraining order against Gov. Kathy Hochul and New York State from enforcing the COVID-19 vaccine mandate for all healthcare workers set to go in effect on September 27, 2021. 
We are continuing to follow and monitor cases challenging to the scope and validity of the numerous Executive Orders passed during the pandemic giving immunity to nursing homes and medical facilities.  This month we report on an Orange County trial court decision which denied a plaintiff’s attempt to skirt the immunity provision of Public Health Law 3082(2) by alleging gross negligence and reckless misconduct where a nursing home resident’s injuries were caused by staff shortages amid the COVID-19 pandemic.
An Erie County trial court declared that “Ruthie’s Law” (which required that nursing homes notify the families of its residents quickly after a reportable event), while well intentioned, is nonetheless unconstitutional. 
In other decisions of note this month, the Second Department showed great deference to our jury system, upholding both a defense verdict in a medical malpractice trial and a plaintiff’s award in a nursing home death trial.


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


September 13, 2021                Crampton v. Garnet Health
Supreme Court, County of Orange
No gross negligence or reckless misconduct found where nursing home resident’s injuries were caused by staff shortages amid the COVID-19 pandemic.
Plaintiff alleged violations of New York’s Public Health Law 2801-d when she sustained injuries including pressure ulcers and fungal dermatitis and was allegedly sexually assaulted by an employee.
Defendant moved for dismissal of all claims except as they relate to the sexual assault, asserting that those claims were barred by Public Health Law 3082. This statute, known as the “Emergency or Disaster Treatment Protection Act,” was enacted at the height of the pandemic to grant immunity from any civil or criminal liability sustained as a result of an act or omission in the course of arranging for or providing healthcare services during a time when an emergency or disaster has been declared- with exceptions for acts or omissions constituting gross negligence, reckless misconduct, or intentional infliction of harm.  Plaintiff’s alleged injuries occurred during the height of the COVID-19 pandemic, and defendant submitted an Affidavit from its Director of Nursing who testified to the extreme staff-shortage across New York during this time and its impact on operations.
Putting aside the allegation of sexual assault, the Trial Court found that plaintiff did not allege willful or intentional criminal misconduct or intentional infliction of harm; and, while plaintiff did make conclusory allegations of reckless misconduct, their Complaint was founded in allegations of ordinary negligence. Per Public Health Law 3082(2), acts or omissions resulting from “a resource or staffing shortage” may not be considered to be gross negligence or reckless misconduct. Plaintiff’s bald assertions consisted of bare legal conclusions with no factual specificity, and they were held insufficient to sustain the Complaint in the face of defendant’s motion for dismissal, which was granted.
September 1, 2021                  Liguori v. Yerger
Appellate Court, Second Department
Defense verdict not set aside where defendant departed from hospital policy as valid line of reasoning and permissible inferences existed in favor of defendants.
During a jury trial for medical malpractice, plaintiff alleged defendant, a radiology technician, deviated from the accepted standard of care when he administered CT contrast media by IV at the flow rate of 1.3 ccs per second which was greater than the hospital policy of using a flow of 1.0 ccs per second. Plaintiff claimed this caused a spill of the contrast media from the vein in her hand into the surrounding tissue, which in turn cause her to suffer various complications including compartment syndrome that required surgery.
The jury found in favor of defendants, and plaintiff subsequently moved to set aside that verdict and for judgment as a matter of law. The Second Department found that there was a valid line of reasoning and permissible inferences which could lead rational people to conclude that the defendants did not depart from accepted medical practice.
September 1, 2021                  Wasserberg v. Menorah Center for Rehabilitation and Nursing Care
Appellate Court, Second Department
$300,000 jury verdict not set aside against nursing home whose staff failed to check for airway obstruction of a choking resident.
Plaintiff commenced this action after decedent choked on a piece of meat, went into cardiac arrest, lapsed into a comatose state and died several weeks later. A jury found in favor of the plaintiff and awarded $300,000, finding that the members of defendant’s staff who performed CPR on the decedent but failed to check his airway for obstruction was a departure from accepted standards of medical care, and that this departure was a substantial factor in causing decedent’s injuries.
Defendant then moved to set aside the jury verdict and for summary judgment. The Second Department denied defendants’ motions, finding that there was a valid line of reasoning and permissible inferences in plaintiff’s favor before the jury, and the award did not deviate materially from a reasonable compensation.
September 16, 2021                Rattray v. New York Presbyterian
Supreme Court, County of New York
Summary judgment granted where plaintiff’s expert failed to explain how alleged deviations from the standard of care proximately caused injury to a patient discharged from the emergency room.

Plaintiff, a fifteen-year-old minor, alleged medical malpractice when she presented to the emergency room with an ankle fracture. Her injury was X-rayed, splinted and wrapped, and she was referred to an orthopedist surgeon. Plaintiff’s alleged malpractice arises from her unfortunate delay in obtaining an orthopedic surgeon to perform the necessary surgery as they did not take her medical insurance.
On summary judgment, the Trial Court held that plaintiff’s expert failed to rebut defendant’s prima facie showing, as although he opined that defendant should have performed a CT scan or MRI, should have consulted with another physician and should have “closed the loop” by contacting a specialist for follow-up, he had not explained how those alleged deviations proximately caused plaintiff’s injury. Moreover, since surgery had to be delayed initially due to swelling, defendant extinguished their duty when plaintiff was discharged from their emergency room as continuity of care does not exist for an emergency room physician once a patient is released.



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