medical malpractice 2009-2010 update - amazon s3 · the landowner as well as the new york city...

MEDICAL MALPRACTICE

2009-2010 UPDATE

JOHN A. BONINA Bonina & Bonina, P.C. 16 Court Street, Suite 1800 Brooklyn, NY 11241 (718) 522-1786 (888) MEDLAW1 [email protected]

* This outline summarizes all significant New York Medical Malpractice cases, decided from September 1, 2009 through August 31, 2010. ** Erin Mossberg, an associate at Bonina & Bonina, P.C., assisted in the research and preparation of these materials.

183

TABLE OF CONTENTS

I. Notice of Claim ..................................................................................................................... 187

A. Late Notice of Claim Applications Denied ............................................................. 187

II. Duty ....................................................................................................................................... 188

III. Commencement of Action ..................................................................................................... 188

A. CPLR 3012-a Certificate of Merit ............................................................................ 188

B. Venue ........................................................................................................................ 189

C. Capacity to Sue - Bankruptcy of Plaintiff ................................................................. 190

IV. Statute of Limitations ............................................................................................................ 190

A. Continuous Treatment .............................................................................................. 190

B. Relation Back ............................................................................................................ 192

C. Medical Malpractice or Negligence - Which Statute of Limitation Applies? .......... 193

V. Pleadings ............................................................................................................................... 193

VI. Discovery ............................................................................................................................... 195

A. Ex-Parte Interview with Plaintiff’s Treating Physician ............................................ 195

B. What is Discoverable? ............................................................................................... 195

C. Sanctions/Dismissal .................................................................................................. 196

VII. Summary Judgment ............................................................................................................... 196

A. Summary Judgment Granted .................................................................................... 196

B. Summary Judgment Denied ...................................................................................... 202

C. Summary Judgment to Plaintiff ................................................................................ 209

VIII. Trial Practice ......................................................................................................................... 210

A. Expert Witness Disclosure ........................................................................................ 210

B. Frye Hearings ........................................................................................................... 210

C. Adjournments and Continuances .............................................................................. 210

D. Evidence ................................................................................................................... 210

E. CPLR 4401 - Dismissal at the Close of Plaintiff’s Case ........................................... 213

F. Verdicts and Judgments ............................................................................................. 214

G. Damages ................................................................................................................... 220

H. Fees and Disbursements ........................................................................................... 222

185

Copyright © 2010 by John Bonina. All Rights Reserved.

I. NOTICE OF CLAIM A. Late Notice of Claim Applications Denied

1. Pierre-Louis v. New York City Health & Hosps. Corp., 72 A.D.3d 463, 899 N.Y.S.2d 596 (1st Dep’t 2010). Petitioners failed to demonstrate that respondent had actual notice of the facts constituting the claim and would not be prejudiced by the delay (see Williams v. Nassau County Medical Center, 6 N.Y.3d 531, 814 N.Y.S.2d 586 (2006). Respondent’s mere possession of medical records does not demonstrate that it has actual knowledge of the essential facts constituting the claim, as the medical records, on their face, indicate that infant petitioner underwent a routine circumcision without complications, and do not evince any malpractice (citation omitted). Petitioners also failed to offer a reasonable excuse for the delay of more than one year in seeking leave to file a late notice of claim. 2. Velazquez ex. rel. Segarra v. City of New York Health & Hosps. Corp., 69 A.D.3d 441, 894 N.Y.S.2d 15 (1st Dep’t 2010). The First Department denied plaintiff’s late Notice of Claim application in this birth injury case, noting that plaintiff offered no excuse for the eight and a half year delay in serving a Notice of Claim, or for the additional one year delay in seeking leave to file late notice. Plaintiff also failed to show that the defendant had actual knowledge of the facts constituting the claim. In this respect the Court noted as follows:

While analysis of the medical record will be required to assess the propriety of the treatment rendered by defendant, plaintiffs have failed to demonstrate that the record alone suffices to put defendant on notice of the alleged malpractice. That the infant experienced complications due to premature birth does not serve to alert defendant that, years later, he would develop cerebral palsy and other conditions now alleged to be the result of negligence in his perinatal care and treatment. “Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process” (citations omitted).

3. Contreras v. KBM Realty Corp., 66 A.D.3d 627, 887 N.Y.S.2d 172 (2d Dep’t 2009). Late Notice of Claim Application Denied. This claim was brought on behalf of an infant plaintiff who had suffered lead poisoning, against both the landowner as well as the New York City Health and Hospitals Corporation. The malpractice claims against NYCHHC were predicated upon the lack of “anticipatory guidance”. Plaintiff had been diagnosed with elevated blood lead levels in March and November 1997. Thereafter in September 2004, plaintiff served a Notice of Claim upon NYCHHC without leave of Court. In March 2007, over nine years after the acts which gave rise to the claim, plaintiff moved to deem her late Notice of Claim to have been timely served nunc pro tunc. Plaintiff’s application was denied. The Court noted that the application was not made until over nine years after infant was last diagnosed at Woodhull with elevated blood lead levels, and that plaintiff failed to offer a reasonable excuse for failure to timely serve a Notice of Claim. Further, although NYCHHC was in possession of plaintiff’s medical records, these records showed that her blood lead levels declined during the period when Woodhull’s medical staff allegedly failed to provide anticipatory guidance and did not suggest that plaintiff suffered any injury attributable to any acts of malpractice. 4. Argueta v. New York City Health & Hosps. Corp., 74 A.D.3d 713, 905 N.Y.S.2d 611 (2d Dep’t 2010). Late Notice of Claim Application Denied.

187


Contrary to the infant plaintiff's contention, the defendant New York City Health and Hospitals Corporation (Coney Island Hospital) (hereinafter NYCHHC) did not acquire actual knowledge of the facts constituting her claim within the requisite 90 day period, or a reasonable time thereafter, by virtue of its possession of hospital records relating to her delivery and follow up care. “Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury” on the claimant (citations omitted). Additionally the Court cited the six-year delay in moving to deem the Late Notice of Claim timely served, or moving for leave to serve a Late Notice of Claim, the failure to offer a reasonable excuse and the failure to show that defendant would not be substantially prejudiced in denying plaintiff’s application. See also: Mullins v. East Haven Nursing & Rehab. Ctr., LLC., 66 A.D.3d 578, 886 N.Y.S.2d 602 (1st Dep’t 2009).

II. DUTY

Lewis v. State of New York, 68 A.D.3d 1513, 892 N.Y.S.2d 583 (3d Dep’t 2009). Plaintiff developed Hepatitis C as a result of Dr. Harvey Finkelstein’s improper re-use of syringes from one patient to the next, a practice which infected dozens of his patients. However, plaintiff first found out about the danger of Dr. Finkelstein’s practices over three years after she had ceased treatment with Dr. Finkelstein, when it was reported in the media. Thus her claims against Dr. Finkelstein were time barred. Plaintiff brought this claim against the State of New York, claiming that the notification processes undertaken by the Department of Health to alert patients of Dr. Finkelstein were unnecessarily drawn out, thus compromising her ability to commence suit against Dr. Finkelstein within the applicable statute of limitations, as well as her ability to seek prompt and early treatment for her diagnosis and treatment for her Hepatitis C. The Third Department dismissed these claims, noting that “when official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a municipal defendant generally is not answerable in damages for the injurious consequences of that action.” Noting that the acts in question were discretionary acts and matters of expert judgment in policy matters, and noting that claimant made no allegations of breach of a special duty, the Court dismissed plaintiff’s claims.

III. COMMENCEMENT OF ACTION A. CPLR 3012-a Certificate of Merit

1. Grad v. Hafliger, 68 A.D.3d 543, 889 N.Y.S.2d 459 (1st Dep’t 2009). Plaintiff did not file a Certificate of Merit with the initial Summons and Complaint. Rather, counsel certified that he had insufficient time to obtain an expert consult. Thereafter, plaintiff moved for leave to file a late notice based on an alleged “clerical error” by counsel. Defendant opposed the motion and cross-moved to dismiss. Plaintiff’s motion was granted, and defendant’s motion to dismiss denied, with the Court stating as follows: To avoid dismissal for neglecting to serve a certificate with the pleadings, the plaintiff must present a reasonable excuse for the failure to comply with the statute and an affidavit of merit from a medical expert (George v. St. John’s Riverside Hosp., 162 A.D.2d 140, 556 N.Y.S.2d 85 (1990)). In

188


opposition to Hafliger’s cross motion, plaintiff provided a sufficient affirmation of a doctor attesting to the merits of the case and an affirmation of counsel setting forth a reasonable excuse for failure to comply with the statute. The fact that the doctor’s name was redacted from the affirmation served on defense counsel is insignificant because it was included in the original provided to the court (see Marano v. Mercy Hosp., 241 A.D.2d 48, 50, 670 N.Y.S.2d 570 (1998)). 2. Gordon v. Sea Crest Health Care Ctr., LLC, 73 A.D.3d 1125, 900 N.Y.S.2d 905 (2d Dep’t 2010). Plaintiff’s motion for leave to file a late Certificate of Merit pursuant to CPLR 3012-a was denied, as plaintiffs failed to show good cause for an extension of time to file.

B. Venue

1. Simon v. Usher, 73 A.D.3d 415, 899 N.Y.S.2d 601 (1st Dep’t 2010). Defendants’ motion to change venue from Bronx to Westchester denied on procedural grounds. Defendants had made a timely demand for a change of venue, but moved for change of venue twenty days after service of the demand. The motion was thus untimely, and accordingly rejected. CPLR 511(b) states that the motion must be made within 15 days of service of the demand. 2. Thomas v. Guttikonda, 68 A.D.3d 853, 889 N.Y.S.2d 679 (2d Dep’t 2009). Defendant’s Motion to Change Venue from Kings to Richmond County Denied Defendants did not serve a demand to change venue with their answer or before the answer was served. Thus they were not entitled to change venue as of right, and their motion was addressed to the Court’s discretion. Although defendants later learned the true residence of defendant Edwin Chang (whose presumptive residence was the basis for Brooklyn venue), they failed to demonstrate that the convenience of material witnesses and the ends of justice would be promoted by a change of venue from Kings to Richmond County. 3. Brown v. Dawson, 65 A.D.3d 980, 885 N.Y.S.2d 418 (1st Dep’t 2009). Defendant’s motion to change venue from New York County to Richmond County denied. Plaintiff properly placed venue in New York County based on St. Vincent’s Hospital and Medical Center’s designation of New York County as its corporate residence on its Certificate of Incorporation. Further, the record did not support a discretionary change of venue, as defendant failed to detail the identity and availability of non-party witnesses who would be inconvenienced by the designated venue. 4. Leetom v. Bell, 68 A.D.3d 532, 889 N.Y.S.2d 454 (1st Dep’t 2009). Defendant’s motion to change venue from Bronx to Nassau County denied based on plaintiff’s “residence” at the Bronx VA Medical Center. The Court noted that when plaintiff commenced the action he had been living at the Bronx VA for nearly a year, and was unable to move back to his prior residence in Queens for health reasons. Further, the record contained no evidence suggesting that plaintiff assumed temporary residency at the Bronx VA solely to obtain an advantageous venue. Accordingly, venue was retained in the Bronx. 5. Vassel v. Magno, 65 A.D.3d 1138, 885 N.Y.S.2d 204 (2d Dep’t 2009). Defendant’s motion to change venue from Kings to Westchester County denied. Plaintiff properly placed venue in Kings County, as that was where he resided at the time the litigation was commenced.

189


6. Thomas v. Avalon Gardens Rehab. & Health Care Ctr., 73 A.D.3d 744, 899 N.Y.S.2d 649 (2d Dep’t 2010). Venue Retained in Kings County Defendant’s motion to change venue was denied, based upon plaintiff’s affidavit to the effect that she was a resident of Kings County at the time the action was commenced.

C. Capacity to Sue - Bankruptcy of Plaintiff

Rivera v. Markowitz, 71 A.D.3d 449, 897 N.Y.S.2d 50 (1st Dep’t 2010). 7/2002: Medical malpractice action commenced. 10/2005 through 12/2006: Plaintiffs filed for bankruptcy and received discharges. Neither plaintiff scheduled the malpractice action as an asset. Plaintiffs’ failure to schedule the action as an asset deprived them of capacity to sue, and in light of this defect the trustees could not be substituted for the plaintiffs in this action. However, rather than dismissing on the merits, the Court dismissed the complaint without prejudice so that it could be commenced by the trustee pursuant to CPLR 205(a).

IV. STATUTE OF LIMITATIONS A. Continuous Treatment

1. Rosenthal v. So, 72 A.D.3d 784, 898 N.Y.S.2d 485 (2d Dep’t 2010). Statute of Limitations - Question of Fact on Continuous Treatment Plaintiff alleged a failure to diagnose bladder cancer during a continuous course of treatment from September 2002 through March 2005. The action was commenced on March 26, 2006. Thereafter, the defense moved for Summary Judgment on statute of limitations grounds, seeking dismissal of any claims which occurred prior to September 26, 2004 (sic) as time barred. In opposition, plaintiff submitted a Physician’s Affidavit, to the effect that defendants should have referred her for CT scans and cystoscopies in light of her history of hematuria and bladder complaints, thus raising a question of fact as to the application of the continuous treatment doctrine. 2. Chambers v. Mirkinson, 68 A.D.3d 702, 890 N.Y.S.2d 99 (2d Dep’t 2009). Statute of Limitations - Continuous Treatment Plaintiff claimed that two different groups of defendants delayed in diagnosing her multiple sclerosis. With respect to defendants Werner and Eye Guys, plaintiff consulted with them on seven occasions between May 21, 2001 and April 13, 2006 for complaints regarding decreased visual acuity. With respect to defendants Mirkinson and Hillside Medical Associates, plaintiff was treated on nine occasions between August 9, 2000 and June 14, 2006 for various complaints including visual impairment, leg numbness, urinary incontinence and upper respiratory ailments. On the last visit, Hillside referred her to a neurologist who diagnosed the multiple sclerosis. Thereafter plaintiff commenced the instant action by filing a Summons and Complaint on March 1, 2007. Both defendants moved for Summary Judgment dismissing as time barred any claims occurring prior to September 1, 2004. With respect to the motion of defendants Werner and Eye Guys, the Court granted the motion, noting that the limitations period would only be tolled “if the defendants continuously rendered an ‘actual course of treatment’ during the relevant period ‘for the same conditions or complaints underlying the plaintiff’s medical malpractice claim’” (citation omitted). Since plaintiff’s visits were for routine

190


diagnostic exams, or return visits on the patients own initiative, this did not satisfy the continuous treatment doctrine. However, with respect to the motion of defendants Mirkinson and Hillside, the Court denied defendants’ motion with respect to visits of April 27, 2004 and July 14, 2004, noting that she complained of symptoms related to multiple sclerosis during these appointments, and continued to complain of such symptoms on March 7, 2005, a date falling within the limitations period. Plaintiff also submitted evidence that Hillside addressed these symptoms on these dates by administering therapy, ordering testing, or making referrals to specialists. Accordingly, plaintiff raised a triable issue of fact as to whether Hillside actually rendered a continuous course of treatment with respect to her multiple sclerosis symptoms beginning on April 27, 2004. With respect to visits prior to April 27, 2004, the Court granted defendants’ motion to dismiss on statute of limitations grounds, noting that plaintiff complained of discrete symptoms and received testing which failed to show any abnormalities. 3. Simons v. Bassett Health Care, 73 A.D.3d 1252, 900 N.Y.S.2d 781 (3d Dep’t 2010). Defendant’s motion for Summary Judgment on statute of limitations grounds denied, as there were questions of fact as to continuous treatment. Court cited the following pertinent facts:

On June 9, 2003 . . . a whole body scan of plaintiff was performed. The radiologist noticed an abnormality in the right side of plaintiff’s skull and ordered X rays, the results of which prompted him to recommend a CT scan for the purpose of ruling out a possible meningioma. According to plaintiff, she was never advised of these findings and a CT scan was not performed at that time. Subsequently, from June 2003 through November 2004, Bassett’s providers continued to treat plaintiff for a variety of complaints, including migraines, headaches, dizziness, vision problems, facial pain and swelling on the right side of her face. In November 2004, a CT scan was conducted . . . . That scan detected a right-side orbital mass which, upon referral, was diagnosed by third parties as meningioma. (emphasis added).

An action was not commenced until March 2007, two years and five months after the last date of treatment. Defendant’s motion for Summary Judgment on statute of limitations grounds was denied, as there were questions of fact as to the applicability of the continuous treatment doctrine. The Court noted that when a case involves a failure to diagnose a condition, “the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition” (emphasis added). Plaintiff submitted a Physician’s Affidavit in support of their position, indicating that between June 2003 and November 2004 defendant’s personnel provided treatment for symptoms and complaints suggestive of or consistent with a meningioma. 4. Johanson v. Sullivan, 68 A.D.3d 1303, 891 N.Y.S.2d 184 (3d Dep’t 2009). Defendant’s motion for partial Summary Judgment on statute of limitations grounds granted. No evidence of “continuous treatment.” Here the record includes no indication that plaintiff was treated for periodontal disease before 2007, and the gravamen of plaintiff’s complaint is that defendant did not diagnose or treat the condition. Nonetheless, plaintiffs contend that the doctrine should apply, claiming that the requirement for a course of treatment was met by the regular visits plaintiff made to defendant between 1997 and 2006 for such purposes as cleanings, examinations and cavity fillings. . . . Supreme Court correctly rejected this contention. CPLR 214-a provides that “the term ‘continuous treatment’ shall not include examinations undertaking at the request of the patient for the sole purpose of ascertaining the state of the patient’s condition.” Continuous treatment does not include routine diagnostic

191


examinations, visits for reasons not related to the condition addressed in the malpractice claim, or a general doctor patient relationship (emphasis added). 5. Torres v. Terence Cardinal Cooke Health Care Ctr., 72 A.D.3d 588, 899 N.Y.S.2d 224 (1st Dep’t 2010). The continuous treatment doctrine was held to apply in a case against the nursing home for the development of bed sores, based in part on the fact that defendant’s own records indicated that at the time of decedent’s initial admission, his pressure ulcer assessment score was at a high risk level, thereby suggesting that decedent had a condition which needed to be monitored and treated. 6. Capece v. Nash, 70 A.D.3d 743, 897 N.Y.S.2d 124 (2d Dep’t 2010).Statute of Limitations - Continuous Treatment - Dismissal Denied as to Wrongful Death Claims. In opposition to defendant’s motion for Summary Judgment on statute of limitations grounds, plaintiff failed to raise a triable issue of fact as to the application of the continuous treatment doctrine. Thus, plaintiff’s medical malpractice claim for pain and suffering based upon treatment prior to July 13, 2000 was dismissed. However, with respect to the wrongful death action, certain claims with respect to prior acts were still viable when decedent died on January 13, 2003. Claims with respect to any treatment on or after July 13, 2000 were still viable at the time of decedent’s death. Thus, since the wrongful death action was commenced within one years of decedent’s death, any claims for malpractice on or after July 13, 2000 (two and one half years prior to the date of death) were timely.

B. Relation Back

3. Quiroz v. Beitia, 68 A.D.3d 957, 893 N.Y.S.2d 70 (2d Dep’t 2009). Relation Back In this delayed diagnosis of breast cancer action, plaintiff underwent a mammography at defendant Wyckoff Heights Medical Center in September 2003, which was interpreted by defendant Beitia. Thereafter pelvic X-rays taken at Wyckoff were interpreted by Dr. Loscos as normal. In December 2005 a biopsy was performed at Bellevue which revealed that she had breast cancer. On March 17, 2006 plaintiff commenced this action against Wyckoff and Beitia alleging that they negligently failed to diagnose and treat a pelvic tumor and breast cancer. At a deposition in 2007, Dr. Beitia testified that he and Dr. Loscos were employed by defendant Wyckoff Imaging Services P.C., while working at Wyckoff Heights Medical Center. Plaintiff then moved for leave to amend her Complaint to add Wyckoff Imaging as a defendant. Supreme Court granted plaintiff’s motion, and was affirmed by the Second Department. In order for a claim asserted against a new defendant to relate back to the date a claim was asserted against another defendant, the plaintiff must establish that “1) both claims arose out of the same conduct, transaction or occurrence, 2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement, and 3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well” (citation omitted). Here the claims clearly arose out of the same conduct, transaction or occurrence. Further, in finding that Wyckoff Imaging was united in interest with defendant Wyckoff Heights Medical Center, the Court noted that they were vicariously liable for the negligence of each other by virtue of their contractual relationship which created a joint venture. Lastly, the Court noted that Wyckoff Imaging would have had notice of the pending action due to their relationship with the medical center, and

192


their obligation to defend and indemnify the medical center with respect to plaintiff’s claims concerning the negligence of Wyckoff Imaging’s physicians, thus satisfying the third element of the relation back doctrine.

C. Medical Malpractice or Negligence - Which Statute of Limitations Applies?

4. Friedmann v. New York Hosp. - Cornell Med. Ctr., 65 A.D.3d 850, 884 N.Y.S.2d 733 (1st Dep’t 2009). Facts: the right leg of decedent ruptured after it struck a bed rail while aids at Silvercrest Extended Care Facility were preparing her for dinner and adjusting her bedding. Decedent was bedridden and had fragile skin prone to rupture due to medications she was on. The Court concluded that the claims against Silvercrest sounded in negligence, rather than malpractice, noting that a trier of fact could evaluate whether allegedly permitting decedent’s leg to strike the bed rail while she was being prepared for dinner constituted a negligent act, without the benefit of expert testimony. 5. Santana v. St. Vincent Catholic Med. Ctr. of New York, 65 A.D.3d 1119, 886 N.Y.S.2d 57 (2d Dep’t 2009). Two and One Half Year Medical Malpractice Statute of Limitations Applies - Case Dismissed. Plaintiff sued to recover for injuries sustained when he fell from his hospital bed. The action was commenced more than two years six months, but less than three years, after the occurrence. The complaint sought to impose liability for failure to assess the level of supervision, nursing care, and security required for the 73 year old patient after having administered pain medication to him. Since these allegations sounded in medical malpractice and not ordinary negligence, the two and one half year statute of limitations applied, and the case was dismissed.

V. PLEADINGS

1. Duquette v. Oliva, 75 A.D.3d 727, 905 N.Y.S.2d 316 (3d Dep’t 2010). Plaintiff’s motion to amend her Summons and Complaint to add a breach of contract claim granted. In this breast implant surgery case, the Court found that there may have been an “express special promise” to effect a cure or accomplish a definite result, as required to justify a breach of contract claim arising out of the rendering of medical services. Amongst other things, defendant had agreed to use a smooth breast implant as opposed to a textured version and also promised to increase plaintiff’s breast size to a D cup. Based on the fact that the textured version was used, and plaintiff’s breast size actually decreased, the Court found that there was potential merit to plaintiff’s breach of contract claim, and permitted the amendment. 2. Goldenberg v. Westchester County Health Care Corp., 68 A.D.3d 1056, 892 N.Y.S.2d 463 (2d Dep’t 2009). Failure to File Summons and Complaint Results in Dismissal Plaintiff served a Summons and Complaint upon defendants without ever filing with the court, obtaining an Index Number, or paying the filing fee. Accordingly the action was never validly commenced pursuant to CPLR § 304. Thus, Defendant’s motion to dismiss the Complaint was granted. 3. Kwiecinski v. Hwang, 65 A.D.3d 1443, 885 N.Y.S.2d 783 (3d Dep’t 2009). Admissions in Answer may be used despite subsequent Amended Answer. In its answer, defendants specifically admitted that plaintiff “was supposed to receive Versed prior to the surgery. Instead, due to negligence, gross negligence and recklessness of defendant[s], plaintiff was given a paralytic agent.” Defendants thereafter moved for permission to amend their answer, claiming that the admission was inadvertent. Supreme Court granted defendants’ motion and ordered

193


that plaintiff or any other party may not use the admission in the original answer at any stage of the litigation. The Third Department reversed, noting that an admission of fact in an original pleading does not lose its effect as an admission of fact because the pleading has been superceded by an amended pleading. 4. Mahr v. Perry, 74 A.D.3d 1030, 903 N.Y.S.2d 148 (2d Dep’t 2010). Defendant’s motion to compel plaintiffs to serve an amended Bill of Particulars was denied. Plaintiffs’ Bills of Particulars appraised defendants of an adequate number of claimed negligent acts of commission or omission, including the conditions they failed to diagnose, improperly treated or failed to treat. Further, certain of defendants’ objections were found to be without merit, since none of the information sought in those demands was expressly authorized by CPLR 3043. Plaintiffs’ objections to other demands were found to be proper, as the demands improperly sought evidentiary material. One of these demands sought to compel plaintiff to “set forth the manner in which the physician failed to act in accordance with good and accepted medical practice,” which is knowledge a physician is chargeable with knowing. 5. Murray v. Brookhaven Mem’l Hosp. Med. Ctr., 73 A.D.3d 878, 902 N.Y.S.2d 576 (2d Dep’t 2010). Supreme Court improperly granted defendants’ oral application to strike the term “reckless” from plaintiff’s Bills of Particulars, as part of the Preliminary Conference Order. Since this necessarily involved a consideration of evidentiary sufficiency, a formal motion on notice needed to have been made. 6. Martinez v. Fields, 74 A.D.3d 653, 902 N.Y.S.2d 361(1st Dep’t 2010). Amended Bill of Particulars Stricken. The motion court properly struck the amended bill of particulars alleging a failure to diagnose and treat plaintiff’s cervical cancer because this claim was not asserted in the complaint, which alleged a failure to diagnose and treat plaintiff’s urinary and kidney disease. Although the new claim was not time barred due to the doctrine of continuous treatment, and plaintiff served her amended bill of particulars two days prior to filing the note of issue, an amended bill of particulars cannot allege a theory or claim not originally asserted in the complaint (citations omitted). 7. Schreiber v. Univ. of Rochester Med. Ctr., 74 A.D.3d 1812, 903 N.Y.S.2d 636 (4th Dep’t 2010). Plaintiff was directed to provide a further Supplemental Bill of Particulars by 12/15/08, in the event that he would contend that his left leg was injured as a result of surgery on his right leg. Plaintiff did not timely comply with this order. Instead, six months after this deadline, plaintiff served a Supplemental Bill of Particulars, and four days later yet another Supplemental Bill of Particulars alleging for the first time that his leg was injured. The Court granted defendant’s motion to preclude plaintiff from presenting evidence at trial concerning injury to his left leg, noting that the Supplemental Bill of Particulars in question was submitted approximately six months after the Court’s deadline, and that there was no medical evidence suggesting that he suffered left leg injuries as a result of defendant’s treatment.

VI. DISCOVERY A. Ex-Parte Interview with Plaintiff’s Treating Physician

Shefer v. Tepper, 73 A.D.3d 447, 899 N.Y.S.2d 610 (1st Dep’t 2010). Ex-parte interview with plaintiff’s treating physician permitted before Note of Issue filed.

B. What is Discoverable?

1. Thompson v. Mather, 70 A.D.3d 1436, 894 N.Y.S.2d 671 (4th Dep’t 2010).

194


In preparation for trial, plaintiff arranged for videotaped depositions of plaintiff’s treating cardiologists (both non-parties). During the videotaped testimony, counsel for one of the physicians interposed objections to form and relevance. The objections could not be worked out between counsel, so plaintiff moved for an order precluding the non-party physician’s counsel from objecting at the videotaped deposition except as to privileged matters. In its Order, Supreme Court directed plaintiffs and defendants to consider providing General Releases to the non-parties, and indicated that if the releases were provided plaintiff could have the videotaped deposition and the attorneys for the physicians would not be permitted to speak. The Fourth Department disagreed, holding as follows: We agree with plaintiff that counsel for a non-party witness does not have a right to object during or otherwise to participate in a pre-trial deposition. CPLR 3113(c) provides that the examination and cross-examination of deposition witnesses “shall proceed as permitted in the trial of actions in open court.” Although counsel for the physicians correctly conceded at oral argument . . . that she had no right to object during or to participate in the trial of this action, she nevertheless asserted that she was entitled to object during nonparty depositions and videotaped deposition questioning. We cannot agree that there is such a distinction, based on the express language of CPLR 3113(c). Further, the Court noted “that the practice of conditioning the videotaping of depositions of nonparty witnesses to be presented at trial upon the provision of general releases [wa]s repugnant to the fundamental obligation of every citizen to . . . provide truthful trial testimony when called to the witness stand.” 2. Fernekes v. Catskill Reg’l Med. Ctr., 75 A.D.3d 959, ___ N.Y.S.2d ___ (3d Dep’t 2010). Defendant was ordered to produce their Incident Coordinator and Director for the Performance Improvement Department for a deposition, and for her to bring certain nonprivileged documents with her to that deposition. As the party objecting to disclosure defendant bore the burden of establishing that the material sought was privileged. In this respect they submitted only an Attorney’s Affirmation, and thus failed to meet their burden. 3. Learned v. Faxton-St. Luke’s Healthcare, 70 A.D.3d 1398, 894 N.Y.S.2d 783 (4th Dep’t 2010). Defendant ordered to produce the minutes of their Infection Control Committee. Plaintiff sought damages for postoperative infections she sustained allegedly caused by defendants’ negligence in failing to keep the operating rooms and surgical equipment properly sterilized. Defendants were ordered to produce the minutes of their Infection Control Committee, because they did not establish that those minutes were generated in connection with a quality assurance review function pursuant to Education Law 6527(3) or a malpractice prevention program pursuant to Public Health Law 2805-J. 4. Leardi v. Lutheran Med. Ctr., 67 A.D.3d 651, 888 N.Y.S.2d 168 (2d Dep’t 2009). Discovery: In Camera Review Ordered with Respect to Incident Report 5. Stalker v. Abraham, 69 A.D.3d 1172, 897 N.Y.S.2d 250 (3d Dep’t 2010). Plaintiff’s claims against defendant hospital included a negligent hiring and retention claim, to the effect that the hospital knew or should have known that defendant Abraham was incompetent and unfit to practice medicine, and nevertheless allowed him to continue performing services at its facility. Plaintiff moved to compel testimony concerning defendant’s staff certification process generally, and their decisions to certify and recertify Abraham in particular. Defendant submitted a detailed affidavit from its medical staff credentialing specialist stating, amongst other things, that all the information sought by plaintiff was gathered through the peer

195


review, credentialing, and quality assurance processes, and that defendant relied upon the statutory privileges against disclosure in conducting their internal investigations. The hospital granted a protective order with respect to this discovery.

C. Sanctions/Dismissal

1. Suphankomut v. Yu, 66 A.D.3d 1360, 885 N.Y.S.2d 673 (4th Dep’t 2009). Defendants provided affidavits establishing that discovery, including two non-party depositions, was incomplete when the Note of Issue and Certificate of Readiness were filed. Thus a material fact in the Certificate of Readiness was incorrect, and accordingly plaintiff’s Note of Issue was stricken. 2. Duran v. New York City Health & Hosps. Corp., 74 A.D.3d 1014, 902 N.Y.S.2d 402 (2d Dep’t 2010). Defendant’s motion to dismiss for plaintiff’s failure to provide discovery granted. 3. Rini v. Blanck, 74 A.D.3d 941, 902 N.Y.S.2d 185 (2d Dep’t 2010). Dismissal of plaintiff’s complaint for failure to provide discovery reversed. “[T]he drastic remedy of dismissal is inappropriate absent a clear showing that the plaintiff’s failure to comply with disclosure obligations was willful and contumacious. Here, the record does not demonstrate that the plaintiff’s failure to disclose certain information was willful and contumacious.”

VII. SUMMARY JUDGMENT A. Summary Judgment Granted

1. Ellis v. Eng, 70 A.D.3d 887, 895 N.Y.S.2d 462 (2d Dep’t 2010). Summary Judgment Granted After being diagnosed with Stage II colon cancer, plaintiff claimed malpractice based upon defendant’s failure to refer him to an oncologist, and failure to recommend chemotherapy. As a result of these alleged failures, he was later diagnosed with inoperable colon cancer. Defendants made a prima facie showing of entitlement to Summary Judgment through their submissions which included, amongst other things, evidence that the clinical practice guidelines of the American Society of Clinical Oncology in 2002 did not support the use of chemotherapy for Stage II colon cancer. In opposition plaintiffs failed to raise a triable issue of fact. Plaintiff submitted a physician’s affidavit from a surgical expert whose specialty was laparoscopic, trauma, and general surgery, but not cancer surgery or gastrointestinal surgery. As such, the expert was required to lay a foundation in support of the reliability of the opinions which he rendered and could not merely rely upon conclusory assertions. Since the foundation for the expert’s opinion was the guidelines of the American Society of Clinical Oncology, the validity of the expert’s opinion was dependent upon the validity of those guidelines. However, the guidelines for the American Society of Clinical Oncology for 2000 were not in the record, and the guidelines for 2004, which were in the record, indicated that there was no definite consensus that chemotherapy was warranted for Stage II colon cancer patients. As such, there was no proper basis for the expert’s opinion to the effect that failure to recommend chemotherapy was a departure. 2. Wilkins v. Khoury, 72 A.D.3d 1067, 900 N.Y.S.2d 347 (2d Dep’t 2010). Summary Judgment Granted - Noncompliant Patient Plaintiff claimed that defendant podiatrist failed to diagnose her potentially gangrenous condition. Defendant was granted Summary Judgment based on plaintiff’s failure to follow doctor’s orders. The Court stated as follows:

196


While the plaintiff, in opposition, raised a triable issue of fact as to whether the defendants departed from good and accepted podiatric practice by failing to diagnose her potentially gangrenous condition and failing to instruct her to go to a hospital immediately for intravenous antibiotic treatment, she failed to raise a triable issue of fact as to whether the defendants’ conduct was a proximate cause of her injuries. The plaintiff’s voluntary act of not going to the hospital for intravenous antibiotic treatment when she was instructed to do so by an orthopedic surgeon, who saw the plaintiff after she was treated by the defendants, was independent of and far removed from the defendants’ conduct and, thus, was a superseding act which broke the causal nexus (citations omitted). 3. Yankus v. Kelly, 72 A.D.3d 1068, 900 N.Y.S.2d 120 (2d Dep’t 2010). Summary Judgment Granted - Conclusory Affidavit Plaintiff claimed malpractice in the performance of LASIK eye surgery. After the surgery was performed by the defendants, plaintiff recovered almost perfect vision in both eyes, as noted at two post operative visits. Thereafter he was injured in a head-on motor vehicle collision, in which he suffered, amongst other things, contusions to his chin and head. Following this car accident plaintiff was diagnosed with a detached retina in left eye and underwent surgery to reattach it. He suffered a severe loss of vision in his left eye. Defendant’s Summary Judgment motion was granted, with the Court stating as follows:

In opposition to the motion, the plaintiff failed to raise a triable issue of fact with the purported affirmation of his expert, who conclusorily opined that the defendants departed from good and accepted medical care, but failed to address Dr. Fleischman’s opinions that there was no evidence of a causal relationship between the LASIK surgery and the plaintiff’s injury, or that the plaintiff’s car accident was the proximate cause of the retina detachment (citations omitted) (emphasis added).

4. DeChico v. N. Westchester Hosp. Ctr., 73 A.D.3d 838, 900 N.Y.S.2d 743 (2d Dep’t 2010). Summary Judgment Granted as to Wrongful Birth Claims Accruing after 24th Week of Pregnancy Plaintiff sued to recover damages for the extraordinary costs of rearing their child, who was born with schizencephaly, a rare and severe congenital brain defect. At 28 weeks gestation, an ultrasound revealed a dilated ventricle in the brain of the fetus, and defendant referred the mother for a more detailed ultrasound. Initially, the Court noted that claims on behalf of the infant for “wrongful life” should have been dismissed, as no cause of action may be maintained on behalf of an infant plaintiff for wrongful life. Further, with respect to the wrongful birth cause of action seeking recovery for the parents of the extraordinary costs of rearing this child, the Court noted that “the plaintiff must establish that malpractice by a physician deprived the parent of the opportunity to terminate the pregnancy within the legally permissible time period or that the child would not have been conceived but for the defendants’ malpractice.” Here, all of the alleged acts of malpractice took place after the 24th week of gestation. Noting that it would be unlawful for a physician, pregnant woman, or other person to terminate a pregnancy after the 24th week of gestation unless necessary to preserve the life of the mother (Penal Law § 125.05), the Court held that any negligence by the defendants could not be said to have proximately caused the complained of injuries. 5. Simmons v. Brooklyn Hosp. Ctr., 74 A.D.3d 1174, 903 N.Y.S.2d 521 (2d Dep’t 2010). Defendants’ motion for Summary Judgment was granted, based on plaintiff’s conclusory and speculative Physician’s Affidavit. Specifically, plaintiff’s expert’s opinion to the effect that a sonogram at 34 to 36 weeks of pregnancy would have detected hydrops fetalis was based upon the

197


speculative assumption that the in utero infection which caused this condition was present at that time. There was no evidence in the record to support this proposition. Further, infant plaintiff’s mother was referred to the hospital on three occasions for prenatal testing by a private physician, and was instructed by her private physicians with her HIP center to go to the hospital for the infant’s birth. Upon admission she was seen by an obstetrician on call from her HIP center with privileges at the hospital. Merely because plaintiff did not request a specific doctor when she arrived at the hospital and did not know the physician who treated her beforehand was insufficient to raise a triable issue of fact as to the hospital’s vicarious liability for this private attending physician. 6. Dolan v. Halpern, 73 A.D.3d 1117, 902 N.Y.S.2d 585 (2d Dep’t 2010). Defendant’s motion for Summary Judgment was granted, as plaintiff’s expert failed to address the theory of liability in plaintiff’s Bill of Particulars, asserting instead an alternative theory of liability for the first time in opposition to defendant’s motion. Further, the expert failed to address the specific contentions of defendant’s experts, and was otherwise speculative and conclusory. 7. Joseph ex rel. Griffin v. City of New York, 74 A.D.3d 440, 905 N.Y.S.2d 146 (1st Dep’t 2010). Summary Judgment granted to defendant, with the Court noting as follows:

In opposition, plaintiff failed to raise an issue of fact. Plaintiff’s expert’s affirmation was conclusory and did not adequately address the prima facie showing in the detailed affirmation of HHC’s expert. Plaintiff’s expert affirmed that the cast was applied “unnecessarily” and had not been monitored “properly.” However, he failed to address what other treatment modalities would have been appropriate, whether the treatment provided to the decedent was conservative management of his gangrene, or what, if any, impact the crush injury had on the development of gangrene (emphasis added).

8. Bacani v. Rosenberg, 74 A.D.3d 500, 903 N.Y.S.2d 30 (1st Dep’t 2010). Plaintiff alleged malpractice on the part of the defendants, resulting in the stillbirth of her fetus. Specifically, she claimed that defendants failed to inform plaintiffs that her fibroid was growing and large enough to injure the fetus, failed to provide sufficient fetal monitoring in view of her advanced maternal age and failed to supervise her treatment properly. Defendant moved for Summary Judgment, submitting the Physician’s Affidavit of a Board Certified OB/GYN to the effect that uterine fibroids, in and of themselves, do not cause fetal demise, and that defendant did not deviate from accepted medical practice. Thus the burden shifted to plaintiff to produce evidence in admissible form sufficient to establish the existence of a triable issue of fact. In opposition, plaintiff submitted an expert affidavit from a physician Board Certified in OB/GYN, who opined that defendant deviated from accepted standards of obstetrical and gynecological practice. However, the Court granted defendant Summary Judgment, on the grounds that the expert affidavit was not based on facts in the record or personal knowledge, and conclusory, stating as follows: Dr. Harrigan stated in his affidavit that a review of unspecified “records indicates that [the fetus] died from uteroplacental insufficiency caused by both advanced maternal age and a uterine myoma.” This claim of causation is at odds with the autopsy report, which stated that uteroplacental insufficiency “may have” played a role in the fetal demise. Moreover, the autopsy report did not attribute uteroplacental insufficiency to the factors recited in Dr. Harrigan’s affidavit. Hence, Dr. Harrigan’s opinion does not raise a triable issue of fact with respect to causation because it is not based on facts contained in the record or within his personal knowledge (citation omitted). Also, according to Dr. Harrigan, good medical practice would have acquired Dr. Nanda to schedule plaintiff mother for fetal

198


surveillance and testing on September 7 and 14, 2004. Here, his opinion was conclusory because he did not state what the surveillance and testing might have disclosed on those dates. 9. Rivera v. Kleinman, 67 A.D.3d 482, 889 N.Y.S.2d 551 (1st Dep’t 2009), leave to appeal granted, 14 N.Y.3d 704, 898 N.Y.S.2d 100 (2010). Plaintiff claimed malpractice by defendants during hip surgery, as a result of which the hardware which had been inserted eventually punctured the skin some three and one half years after it was installed. However, defendants had advised plaintiff’s mother that the hardware should be removed between eighteen and twenty four months after the surgery. The Court thus found that plaintiff’s inaction became the superseding cause of the injury, and granted defendant Summary Judgment. 10. Orphan v. Pilnik, 66 A.D.3d 543, 887 N.Y.S.2d 66 (1st Dep’t 2009). Plaintiff underwent a breast mass incision performed by defendant, as a result of which she developed a 6.5 cm scar. She claimed that because she was not told the procedure would result in a 6.5 cm scar, she did not give proper informed consent to remove what turned out to be a benign lump in her breast. Plaintiff had previously undergone a fine needle aspiration which was suspicious for carcinoma. The Court noted that although plaintiff’s medical expert opined that, if plaintiff’s statements were credible, she was not properly informed of the invasive procedure, neither the expert nor the plaintiff alleged that a reasonable person, having been told that she had a suspicious and possibly cancerous lesion in her breast, would not have undergone the procedure. 11. Schultz v. Shreedhar, 66 A.D.3d 666, 886 N.Y.S.2d 484 (2d Dep’t 2009). Vicarious Liability - Defendant Hospital Granted Summary Judgment. Defendant hospital moved for Summary Judgment on the grounds that it could not be held vicariously liable for the malpractice of a private attending physician who was not its employee. Plaintiff failed to raise a triable issue of fact as to whether, in arriving at the hospital emergency room at the direction of his private physician, he sought treatment from defendant hospital rather than from defendant Shreedhar, the private attending surgeon who had been called to the hospital by the plaintiff’s private physician and performed surgery several hours later. Accordingly, defendant hospital’s motion for Summary Judgment, on the grounds that it could not be vicariously liable for the alleged malpractice of Dr. Shreedhar, was granted. 12. Dessources v. Good Samaritan Hosp., 65 A.D.3d 1008, 885 N.Y.S.2d 113 (2d Dep’t 2009). Defendants’ motion for Summary Judgment granted. Plaintiff’s motion to strike defendants’ answer for spoilation of evidence, with respect to lost fetal heart monitor strips denied. Defendants established their prima facie entitlement to judgment as a matter of law by submitting the affidavits of two expert physicians who indicated that the infant plaintiff showed no sign of suffering from any brain injury due to oxygen deprivation during her birth. In opposition, plaintiff’s expert failed to raise a triable issue of fact. Her medical experts’ speculative assertions as to the cause of her cognitive difficulties were insufficient to raise a triable issue of fact. Further, the Court noted that there was no evidence that defendant Good Samaritan Hospital either intentionally or negligently failed to preserve crucial evidence after being placed on notice that such evidence might be needed for future litigation. In fact, defendants’ expert affidavits showed that, in this instance, the fetal heart monitor strips were not crucial evidence. Thus plaintiff’s motion to strike defendants’ answer for spoliation of evidence was denied.

199


13. Thurston v. Interfaith Med. Ctr., 66 A.D.3d 999, 887 N.Y.S.2d 655 (2d Dep’t 2009). Summary Judgment Granted as to Doctor, Denied as to Hospital Decedent was admitted to defendant Interfaith Medical Center where he was scheduled to undergo a thrombectomy, to be performed by defendant Dr. Rai. After pre-surgical blood testing and chest X-rays, decedent was taking to the ambulatory surgery waiting room. It was undisputed that Dr. Rai was in surgery with another patient at this time. The results of decedent’s blood tests then came back, which showed a dangerously high level of potassium. Dr. Rai was informed of this test result, and also that the patient could no longer be found in the waiting area. At his direction a search was conducted, but by the time decedent was found, he had collapsed on the first floor and later died. Dr. Rai established his entitlement to judgement as a matter of law, through evidence that he did not depart from good and accepted standards of care, and nothing he did or failed to do was a competent producing factor of decedent’s injuries or death. In opposition, plaintiff failed to raise a triable issue of fact. However, the Court denied Interfaith’s motion for Summary Judgment. The Court found that Interfaith failed to make a prima facie showing of entitlement to relief, especially in view of the evidence that the hospital failed to attend to decedent while he was in the surgical waiting room and failed to monitor his condition and his whereabouts as he awaited surgery. 14. Grobman v. Sobel, 74 A.D.3d 679, 904 N.Y.S.2d 45 (1st Dep’t 2010). Plaintiff claimed that defendant misdiagnosed the nature of her glaucoma. Defendant’s motion for Summary Judgment was granted, with the Court stating as follows: Plaintiff’s physicians offered no objective proof, based on examination, to contradict Sobel’s objective proof that plaintiff’s optic nerves and cup-to-disc ratios remained stable and in good health during the management and treatment of her condition (citation omitted). Plaintiff’s expert opined that the visual-field tests indicated permanent damage to the optic nerve, but also acknowledged that optic nerve injury would be evidenced by overall cupping and changes to the rim of the optic nerve, such as notching and evacuation, yet no offer of objective proof was made to substantiate such claimed damage. 15. Simmons v. New York City Health & Hosps. Corp., 71 A.D.3d 410, 894 N.Y.S.2d 750 (1st Dep’t 2010). Summary Judgment granted and case dismissed based on res judicata. Plaintiff’s initial action was against a doctor employed by defendant NYCHHC, arose from the same course of treatment alleged in the instant action, and was dismissed on statute of limitations grounds. Defendant in the current action, as the previous defendant’s employer, was the real party in interest in that action, and the abbreviated statute of limitations applicable to defendant thus applied to him as well. 16. Rodriguez v. Waldman, 66 A.D.3d 581, 887 N.Y.S.2d 577 (1st Dep’t 2009). Summary Judgment granted due to insufficient expert affidavit in opposition. Plaintiff submitted two experts’ affidavits, one of which stated “without elaboration, that defendants ‘deviations from accepted standards of medical care in 1998 were directly responsible for causing or contributing to the sequelae experienced by’ plaintiff’s son,” which the Court found to be conclusory. Plaintiff’s second expert opinion failed to controvert a number of points in defendant’s expert affirmation. Plaintiff failed to adequately address defendant’s showing that there was no hypoxia. 17. Giampa v. Shelton, 67 A.D.3d 439, 886 N.Y.S.2d 883 (1st Dep’t 2009). Summary Judgment granted as plaintiff’s expert affirmation was conclusory and did not address the specific assertions of defendant’s experts.

200


18. Caulkins v. Vicinanzo, 71 A.D.3d 1224, 895 N.Y.S.2d 600 (3d Dep’t 2010). In this chiropractic malpractice action, plaintiff alleged that defendant’s spinal adjustments caused her to suffer spinal cord injury resulting in surgical intervention. The Court initially noted that, to the extent that plaintiff’s expert relied on unsworn MRI reports, this constituted competent evidence (see Pommells v. Perez, 4 N.Y.3d 566, 577, 797 N.Y.S.2d 380 (2005)). However, the expert affidavit failed to rebut defendant’s prima facie showing that plaintiff’s condition was caused by a preexisting degenerative condition of the spine, and that the abnormalities could not have occurred as a result of a single chiropractic treatment or even multiple treatments, but rather occurred over many years. 19. DeLorenzo v. St. Claire’s Hosp. of Schenectady, N.Y., 69 A.D.3d 1177, 892 N.Y.S.2d 678 (3d Dep’t 2010). In response to defendant’s prima facie showing of entitlement to relief, plaintiff offered only an attorney’s affidavit (but no physician’s affidavit) claiming that discovery was not yet complete and that there were questions of fact as to the quality of care provided to plaintiff in the Emergency Room. Accordingly, defendant’s motion was granted. 20. Klein v. Bialer, 72 A.D.3d 744, 899 N.Y.S.2d 297 (2d Dep’t 2010). Summary Judgment Granted In January 2004 plaintiffs’ first child was born with a number of dysmorphic features, and was referred to defendant Dr. Bialer, a pediatrician and geneticist for a genetic consult. He examined the infant twice during the first two weeks of her life, and tested her for certain genetic conditions. All tests came back negative. Despite Dr. Bialer’s recommendation that plaintiff should follow up with him in three months, he never saw them again. Thereafter the infant came under the care of other defendants including a Dr. Robert Ward, a pediatric ENT physician, who sent a letter to other pediatric defendants with Commack Pediatric Associates, to the effect that the infant would benefit from a referral to an endocrinologist, because she might have symptoms of a rare genetic disease known as Treacher-Collins Syndrome. The pediatrician did not show the contents of the letter to plaintiffs, but did advise them to follow up with Dr. Bialer, which they never did. Thereafter plaintiffs’ second child was born and was diagnosed with Treacher-Collins Syndrome. Subsequently the first infant and the father were tested and both diagnosed with the condition. Plaintiffs then commenced this malpractice action seeking recovery for the pecuniary expenses and future care and treatment of their second child. In granting defendants’ Summary Judgment motion, the Court first noted that a “wrongful life” action could not be maintained under New York Law. However, the parents could maintain an action for “wrongful birth” to recover for the extraordinary cost incurred in raising a child with a disability, provided there was a breach of duty on the part of the defendants. Applying these principles, the Court granted defendants’ Summary Judgment, noting that there was no special relationship to warrant extending to the non-patient plaintiffs the duty which the defendants owed to the first born infant patient. Further, there was no indication that plaintiffs either relied on the defendant’s advice to follow up with a geneticist or sought a genetic consult themselves to determine the risks involved in future pregnancies. 21. Hamilton v. Good Samaritan Hosp. of Suffern, N.Y., 73 A.D.3d 697, 900 N.Y.S.2d 368 (2d Dep’t 2010). In this case alleging a failure to diagnose congestive heart failure, defendant pulmonologists were granted Summary Judgment, as “they did not assume a general duty of care with regard to the care

201


and treatment provided to the decedent by the cardiologists.” Plaintiff’s expert failed to raise a triable issue of fact either on departure or on causation. Additional cases in which defendant was granted Summary Judgment: Lawlor v. Lenox Hill Hosp., 74 A.D.3d 695, 905 N.Y.S.2d 60 (1st Dep’t 2010). Deutsch v. Chaglassian, 71 A.D.3d 718, 896 N.Y.S.2d 431 (2d Dep’t 2010). Summary Judgment Granted as to Informed Consent Claims Grant v. County of Nassau, 71 A.D.3d 828, 895 N.Y.S.2d 838 (2d Dep’t 2010). Summary Judgment Granted to Defendant Anonymous v. Wyckoff Heights Med. Ctr., 73 A.D.3d 1104, 902 N.Y.S.2d 147 (2d Dep’t 2010). Summary Judgment Granted - Plaintiff’s Expert Submissions Failed to Raise a Triable Issue of Fact Belak-Redl v. Bollengier, 74 A.D.3d 1110, 903 N.Y.S.2d 508 (2d Dep’t 2010). Summary Judgment Granted - Plaintiff’s Physician’s Affidavit was Speculative

B. Summary Judgment Denied

1. Ashton v. D.O.C.S. Continuum Med. Group, 68 A.D.3d 613, 891 N.Y.S.2d 69 (1st Dep’t 2009). Procedure on Summary Judgment motion - the Court properly exercised its discretion in directing plaintiff to submit a supplemental expert affirmation stating the basis for his opinion, where defendants were permitted to respond and were not otherwise prejudiced. 2. Fishkin v. Feinstein, 67 A.D.3d 961, 888 N.Y.S.2d 768 (2d Dep’t 2009). Summary judgment denied based in part on the fact that defendant failed to include copies of all of the pleadings along with her motion, as required by CPLR § 3212(b). 3. Shichman v. Yasmer, 74 A.D.3d 1316, 904 N.Y.S.2d 218 (2d Dep’t 2010). Plaintiffs opposed defendants’ motion for Summary Judgment relying upon, amongst other things, the affidavit of an expert whose name had been redacted. In concluding that defendants deviated from accepted medical practice, the expert relied upon the medical records, deposition testimony, and his/her own physical examination of the plaintiff. In reply, defendants objected on the grounds that a report of the physical examination had not been exchanged pursuant to 22 NYCRR 202.17(b)1. In reversing the Trial Court’s grant of Summary Judgment, the Appellate Division held as follows: Accordingly, the Supreme Court providently exercised its discretion in precluding so much of the plaintiffs' expert's affidavit as was derived from the expert's physical examination of the plaintiff ( see Neils v. Darmochwal, 6 A.D.3d 589, 590, 774 N.Y.S.2d 809 (2d Dep’t 2004)). However, under the circumstances presented here, the Supreme Court improvidently exercised its discretion in precluding the plaintiffs' expert's opinions in the affidavit which were based on other evidence in the case ( id.). Based on a review of the affidavit, it is clear that the expert's opinions derived from other sources were not “inextricably intertwined” with his or her opinions derived from the physical examination of the plaintiff ( id.). The expert's opinion, with regard to certain conclusions, was not dependent or based upon the physical examination. For example, the expert's conclusion that the defendant deviated from accepted podiatric practice by performing the procedures at issue at the neck of the first metatarsal rather than at the head of the first metatarsal, as proper practice allegedly demanded, was based, inter alia, on the defendant's own deposition testimony as well as the expert's expertise.

202


Based on the expert's opinions not dependent on the physical examination, in opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiffs raised a triable issue of fact as to whether the defendant departed from accepted practice and whether such departure was a competent producing cause of the injury. Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint. 4. Fotiou v. Goodman, 74 A.D.3d 1140, 905 N.Y.S.2d 626 (2d Dep’t 2010). Defendants’ motion for Summary Judgment was denied, as they “failed to affirmatively demonstrate the merits of their defense and, as the moving party, could not carry their burden by merely pointing to gaps in the plaintiffs’ proof.” 5. Foote v. Albany Med. Ctr. Hosp., 71 A.D.3d 25, 892 N.Y.S.2d 203 (3d Dep’t 2009). In this “wrongful birth” case, the Court held that the existence of government programs and government benefits does not, as a matter of law, eliminate plaintiffs’ financial obligation for their son’s extraordinary medical and educational expenses, and thus denied Summary Judgment. Plaintiff’s son suffered from severe physical and behavioral disabilities secondary to a rare brain abnormality known as Joubert Syndrome. Plaintiffs claimed that defendants negligently failed to detect the condition before his birth, and that if they had been informed of it earlier enough they would have terminated the pregnancy. The Court noted that: It is well settled that parents who successfully prosecute a “wrongful birth” medical malpractice action are entitled to damages to the extent that they can demonstrate an “increased financial obligation arising from the extraordinary medical treatment rendered [their] child during minority” (citation omitted). Here, plaintiffs’ son clearly requires extraordinary medical and educational services due to his disabilities, and the sizeable costs of providing those services are outlined in the life-care plan prepared by their expert, Joseph Carfi. Although most of those services are currently being paid for by government programs, we find merit in plaintiffs’ argument that here, as with any tort action in which damages for economic losses are sought, the availability of another source of compensation does not obviate their injury. Rather, only upon a determination after trial that the source comes within the scope of the statutory collateral source rule will any award of damages be reduced. . . . Further, Carfi’s affirmation, report and life-care plan, which distinguish between the “basic floor” of services provided by public education and the level necessary to meet all of the son’s needs, are sufficient to raise a question of fact as to whether the son will need services beyond those provided by government programs (citation omitted). Thus, we cannot agree with defendants that plaintiffs have no legally cognizable injury. 6. Schilling v. Ellis Hosp., 75 A.D.3d 1044, 906 N.Y.S.2d 187 (3d Dep’t 2010). Plaintiffs’ 15 year old son was admitted to the Psychiatric Unit of defendant hospital due to manic behavior associated with his bipolar mania. Amongst other things, defendant increased his dosage of Risperdal, a psychotropic drug. He had previously been taking Risperdal at dosages of 1 to 6 mg, but during the admission the dosage was increased to 8 mg. Thereafter, defendant ceased prescribing Risperdal after the child was diagnosed with gynecomastia, or enlargement of the breasts. Plaintiff thereafter commenced this action alleging lack of informed consent with respect to the increased dosage of Risperdal, claiming that they should have been advised that the increased dosage of Risperdal could cause their teenage son to develop gynecomastia.

203


Defendant moved for Summary Judgment, submitting his own affidavit to the effect that, given the low risk of gynecomastia and the fact that the boy had been taking Risperdal without serious side effects for many months before the treatment in question, it was not a deviation not to warn the boy of that rare side effect. The Court denied defendant’s motion, noting as follows with respect to the quality of plaintiffs’ proof submitted in opposition: In opposition, plaintiff demonstrated a factual issue on the first element of the test through the affidavit of a medical expert who opined that, given the information provided in the manufacturer’s insert stating that dosages of more than six milligrams had not been found to be more effective than lower doses, and the fact that the safety and effectiveness of Risperdal had not been established at all in children, defendant should have warned plaintiff of all possible side effects. Next, plaintiff raised a fact question on the second element by asserting in her affidavit that if she had been fully informed of the side effects, she would not have consented to Howard receiving Risperdal. And finally, plaintiff’s expert’s interpretation of Marballi’s progress notes, which unequivocally state his conclusion that Howard “developed gynecomastia because of the high [dose] of Risperdal,” raised a fact issue on causation. 7. Shanahan v. Sung, 75 A.D.3d 1132, 904 N.Y.S.2d 853 (4th Dep’t 2010). Defendant took the position on his Summary Judgment motion that the metallic fragment detected in plaintiff’s right breast in December 2005 and removed in March 2006 did not result from his June 2000 biopsy. However, at his deposition he testified that he had “no opinion whatsoever” as to whether the metallic fragment was present in plaintiff’s breast before June 2005. Given this conflict in testimony, defendant’s motion for Summary Judgment was denied. 8. Koss v. Bach, 74 A.D.3d 472, 903 N.Y.S.2d 24 (1st Dep’t 2010). In this dental malpractice action, plaintiff claimed defendant deviated from accepted standards of care by employing an amalgam that contained mercury, thus resulting in mercury poisoning, rather than using a premixed, precapsulated amalgam filling. In opposition to defendant’s Summary Judgment motion, plaintiffs submitted three expert affidavits which were sufficient to raise a triable issue of fact as to whether defendant departed from accepted standards of dental practice causing the patient’s injuries. 9. Frye v. Montefiore Med. Ctr., 70 A.D.3d 15, 888 N.Y.S.2d 479 (1st Dep’t 2009). Plaintiff alleged that the various defendants failed to properly control the plaintiff-mother’s gestational diabetes, resulting in an occipital encephalocele and neural tube defect. The encephalocele ruptured during delivery, and as a result, the child suffers from cerebral palsy, spastic quadriplegia and pervasive developmental disorder. In opposition to defendant’s Summary Judgment motion, plaintiff submitted expert affirmations from five separate physicians. The first expert, a physician specializing in diabetes, opined that the cause of the child’s encephalocele was the failure of various named defendants to properly manage plaintiff’s diabetes during the first trimester of her pregnancy. This expert opined as to specific departures on the part of the defendants. The second expert, a Board Certified OB/GYN opined that defendants’ failure to properly manage her diabetes during pregnancy was the proximate cause of the formation of the encephalocele as well. This expert also commented upon defendants’ departures from accepted medical practice.

204


The third expert, Board Certified in Roentgenology opined that several defendants departed from accepted medical practices in failing to report on a radiologic abnormality indicating an extracranial soft tissue density in the occipital region of the fetal head. The fourth expert, a Board Certified Neonatologist, opined that encephaloceles develop gradually over the first 10 to 12 weeks of pregnancy (as opposed to defendants’ expert who opined that they all develop by the 29th day of gestation). This Neonatology expert also opined that the failure to place plaintiff on insulin during her December 1999 admission constituted a departure from accepted medical practices, and proximately caused the encephalocele to develop. The fifth expert, a Board Certified Pediatric Neurologist similarly opined that the failure to treat plaintiff with insulin was contrary to widely accepted medical practices and caused the development of the encephalocele. In denying defendants’ Summary Judgment motion, the Court rejected defendants’ argument that all of plaintiff’s experts were unqualified, and that their opinions lack evidentiary support or were speculative. The Court found questions of fact existed as to all defendants. 10. Ryan v. Santana, 71 A.D.3d 1537, 897 N.Y.S.2d 338 (4th Dep’t 2010), leave to appeal denied, 74 A.D.3d 1879, 901 N.Y.S.2d 896 (4th Dep’t 2010). Plaintiff alleged malpractice in failing to diagnose Lyme Disease. Defendant, relying in part on an initial negative result on a Lyme Disease test, moved for Summary Judgment. Plaintiff submitted two physician’s affidavits, the first from a Neurologist who stated that because defendants’ differential diagnosis included Lyme Disease, their reliance upon a negative test result in the absence of a confirmed alternate diagnosis departed from accepted standards of medical practice. The second physician’s affidavit, from an expert in infectious diseases, indicated that the initial negative result could have resulted from medication taken by plaintiff prior to being seen by defendants. This physician also concluded that defendants’ failure to confirm an alternative diagnosis or begin plaintiff on appropriate antibiotic therapy was a departure from accepted medical practices. Thus defendants’ Summary Judgment motion was denied. 11. Williams-Simmons v. Golden, 71 A.D.3d 413, 895 N.Y.S.2d 404 (1st Dep’t 2010). Defendants’ Summary Judgment motion denied in this delayed diagnosis of breast cancer case, based upon the strength of plaintiff’s expert affirmation. In this respect, the Court stated as follows: Although not a radiologist, plaintiffs’ medical expert, an internist and medical oncologist, was qualified to opine as to the propriety of defendants’ care of plaintiff . . . . Inconsistent with defendants’ recom-mendation that plaintiff obtain a follow-up mammogram six months after a needle biopsy was performed, plaintiffs’ expert opined that, given plaintiff’s particular condition, defendants should have recommended a work-up beyond the needle biopsy findings, such as further examinations, MRI, or excisional biopsy, and that the work-up should have been performed one to two months following the needle biopsy. As the motion court found, this difference in opinion creates triable issues of fact . . . . 12. Roques v. Noble, 73 A.D.3d 204, 899 N.Y.S.2d 193 (1st Dep’t 2010). Plaintiff claimed that defendant misinterpreted a CT scan and an MRI film, as a result of which decedent underwent two unnecessary and/or contraindicated procedures, a craniotomy and cerebral stereotactic biopsy. Plaintiff further claimed that the stress of undergoing these procedures triggered a heart attack and led to plaintiff’s death. Defendant’s motion for Summary Judgment was denied, based on the affidavit of plaintiff’s expert, a physician Board Certified in Internal Medicine and Cardiovascular Disease, who concluded based on decedent’s medical records, pertinent medical literature, clinical studies, and his own experience, that

205


defendant’s malpractice stressed decedent and the stress contributed to the hastening of his cardiovascular disease and thus his death. 13. DeCarlo v. Eden Park Health Servs., Inc., 66 A.D.3d 1211, 887 N.Y.S.2d 315 (3d Dep’t 2009). Defendant’s motion for Summary Judgment denied on res ipsa grounds. Decedent was a nonambulatory resident of defendant’s nursing home facility who suffered fractures of her left ankle and right femur, the immediate cause of which was unknown. Plaintiff brought the action on a theory of res ipsa loquitur, alleging that defendant’s negligence resulted in decedent’s injuries. Decedent’s medical records indicated that at least for several months prior to discovery of her injuries, she was nonambulatory and required the assistance of one or more staff to get in and out of bed. Thereafter, one of the defendant’s employees noticed swelling of her right leg while assisting her to the shower, and X-rays revealed the fractures. Her left ankle fracture was treated with an aircast, but the fracture of her right femur resulted in an amputation above the knee. In opposing defendant’s motion for Summary Judgment, plaintiff submitted the affirmation of an expert orthopedist who opined that the types of fractures which decedent suffered from do not occur in the course of normal activities, that her severe osteoporosis was a condition that defendant should have taken into consideration in providing care and treatment, and that the nature of her right femur fracture indicated “some sort of torque activity, external trauma applied or a direct impact to the knee.” The expert concluded that the injuries occurred while decedent was under the exclusive control of defendant and were the result of defendant’s negligence. Since decedent was essentially immobile and under the exclusive control of defendant, and at least one of her injuries appeared to have resulted from the application of external force, defendant’s motion for Summary Judgment was denied on res ipsa grounds. 14. Natale v. Riverview Cancer Care Med. Assoc., 68 A.D.3d 1574, 891 N.Y.S.2d 719 (3d Dep’t 2009). After being diagnosed with squamous cell carcinoma, plaintiff consulted with defendant, a radiation oncologist at defendant Riverview Cancer Care Medical Associates, and elected to pursue radiation therapy. He signed a consent form which discussed the risks associated with radiation therapy, including dry mouth. During plaintiff’s two-month course of radiation treatment, he suffered from amongst other things xerostomia, or dry mouth, which he continued to suffer from thereafter. In opposition to defendant’s Summary Judgment motion, plaintiff submitted the affirmation of a Board Certified Radiologist who opined that giving bilateral radiation therapy rather than radiation therapy administered to only one side of the neck “failed to meet the standard of care and resulted in his severe, permanent xerostomia.” This affirmation, while sparse, adequately set forth the elements of plaintiff’s claim, and thus defendant’s motion for Summary Judgment was denied. 15. Carter v. Tana, 68 A.D.3d 1577, 891 N.Y.S.2d 714 (3d Dep’t 2009). Defendant’s Summary Judgment motion denied, as plaintiff’s expert affidavit: [A]ddressed each defendant physician separately, making factual references to their individual treatment and care of plaintiff. Given his review of the medical records, depositions and his own training and experience, it was his opinion, with a reasonable degree of medical certainty, that each defendant physician “departed from good and acceptable standards of medical care and treatment” that was a substantial factor in causing and/or contributing to the loss of plaintiff’s left leg . . . The expert also set forth specific symptoms plaintiff presented with at each examination that are indicative of vascular disease, as well as noted specific factors in plaintiff’s medical history that increased his risk for peripheral vascular insufficiency (emphasis added).

206


16. Kreinheder v. Withiam-Leitch, 66 A.D.3d 1485, 885 N.Y.S.2d 847 (4th Dep’t 2009). Plaintiff brought this wrongful death and conscious pain and suffering suit on behalf of her late daughter’s estate, alleging malpractice during her birth. Defendant Weppner moved for Summary Judgment, contending that he was not in any way involved in the child’s delivery. Defendant’s motion was denied on the grounds that he did not meet his initial burden of establishing entitlement to judgment as a matter of law. Although defendant stated in his affidavit that he did not play any role in the delivery, the medical records submitted in support of the motion in fact describe defendant’s involvement in the delivery on three separate occasions, and otherwise contradicted the statements in his affidavit. 17. Chan v. Yeung, 66 A.D.3d 642, 887 N.Y.S.2d 164 (2d Dep’t 2009). Dental Malpractice - Summary Judgment Denied. Defendant failed to make a prima facie showing of her entitlement to Summary Judgment. Defendant’s expert affidavit opined that the tooth extraction had not injured plaintiff’s lingual nerve, based on the fact that such an injury would cause immediate numbness of the tongue, and plaintiff complained of pain rather than numbness when he returned to defendant’s office one to two hours later. The expert failed to address whether the anesthesia administered by defendant may have impeded plaintiff’s ability to discern that the right side of his tongue was also numb. Accordingly, defendant’s motion for Summary Judgment was denied. 18. D’Esposito v. Kung, 65 A.D.3d 1007, 885 N.Y.S.2d 507 (2d Dep’t 2009). Summary Judgment Denied on Informed Consent Claims. In opposition to defendant’s motion for Summary Judgment with respect to her informed consent claims, plaintiff raised an issue of fact as to whether defendants failed to inform her of the foreseeable risks and alternatives to anesthesia administered to the eye by means of a peribulbar block injection. Further, plaintiff raised triable issues of fact as to whether a reasonably prudent person in plaintiff’s position would not have undergone the treatment if they were fully informed. Accordingly, defendant’s motion for Summary Judgment was denied with respect to plaintiff’s informed consent claim. 19. Smith-Johnson v. Gabbur, 65 A.D.3d 1122, 885 N.Y.S.2d 330 (2d Dep’t 2009). Defendant’s motion for Summary Judgment denied, based on plaintiff’s detailed opposition, which included physician’s affidavits from two experts which addressed specific departures based upon the medical records. 20. Amin v. Soliman, 67 A.D.3d 835, 889 N.Y.S.2d 629 (2d Dep’t 2009). Summary Judgment Denied as to Mother’s Emotional Distress Claim In this birth injury claim, defendants moved to dismiss the mother’s claim for emotional distress, relying upon Sheppard-Mobley ex rel. Mobley v. King, 4 N.Y.3d 627, 797 N.Y.S.2d 403 (2005), and Broadnax v. Gonzalez, 2 N.Y.3d 148, 777 N.Y.S.2d 416 (2004). Defendants submitted proof that the fetus was born alive, with a heart beat generated 15 minutes after birth, which was maintained at more than 100 beats per minute within 22 minutes after birth. In opposition, plaintiff raised a triable issue of fact as to whether the child was stillborn, in view of the fact that the baby’s Apgar score was zero at 1 minute, 5 minutes and 10 minutes, and that the fetus was dependent on a ventilator for the next three weeks, and was declared dead within 10 minutes of being removed from the ventilator. Under these circumstances, there was a question of fact as to whether the child was born alive (no emotional distress claim for the mother) or was stillborn (mother does have emotional distress claim) thus precluding Summary Judgment. 21. Badolato v. Rosenberg, 67 A.D.3d 937, 890 N.Y.S.2d 85 (2d Dep’t 2009). Summary Judgment Denied In the context of a physical examination conducted for the purposes of rendering an evaluation for a third party such as an employer, an implied physician-patient relationship may arise if the physician

207


either affirmatively treats or affirmatively advises the examinee as to a course of treatment. For affirmative advice to be actionable, plaintiff must establish that the advice was incorrect, that it was foreseeable that plaintiff would rely upon it, and that plaintiff detrimentally relied upon the advice. Defendant’s motion was denied because he failed to make a prima facie showing that no physician-patient relationship existed. Plaintiff’s deposition testimony, which defendant submitted, raised questions of fact as to 1) whether defendant affirmatively advised plaintiff as to a course of treatment by recommending that plaintiff return to work without any restrictions, 2) that advice was incorrect, 3) it was foreseeable that plaintiff would rely upon this advice, and 4) plaintiff relied upon this advice to his detriment. 22. Wilson-Toby v. Bushkin, 72 A.D.3d 810, 898 N.Y.S.2d 633 (2d Dep’t 2010). Summary Judgment Denied - Insufficient Prima Facie Showing by Defendant Plaintiff alleged a lack of informed consent with respect to the alleged risks of elective cosmetic breast surgery. Defendants moved for Summary Judgment, claiming that plaintiff signed consent forms which established that plaintiff “was advised of the risks, benefits and alternatives to the surgical procedures” and that “a proper informed consent was obtained.” Nonetheless, defendant’s motion was denied, with the Court noting that the deposition testimony raised a factual issue between plaintiff and defendants as to the content of additional warnings or information which may have been given before surgery. 23. Vaccaro v. St. Vincent’s Med. Ctr., 71 A.D.3d 1000, 898 N.Y.S.2d 163 (2d Dep’t 2010). Plaintiff Barbara Vaccaro underwent a C4-C5 posterior foraminotomy decompression at defendant hospital, performed by defendant Shiau and assisted by defendant Rubio Gonzalez, an anesthesiologist, and defendant DeFrancesco, a physician’s assistant. Immediately following the surgery, plaintiff was unable to move her upper or lower legs, and was later diagnosed with a spinal cord contusion with quadriparesis. Defendant physician’s assistant DeFrancesco was granted Summary Judgment, based upon her expert affirmation which opined that she appropriately followed the orders of Dr. Shiau, plaintiff’s private attending physician. However, defendant hospital’s Summary Judgment motion was denied on various grounds. Firstly, although there was a SSEP technician present in the Operating Room, apparently the hospital’s SSEP machine was not working. The SSEP machine would have monitored innervation to the extremities, and according to plaintiffs the hospital had an obligation to insure that there was a working SSEP monitoring machine in the Operating Room. Further, plaintiffs claimed that the hospital negligently permitted Dr. Shiau to utilize a particular procedure, the Met-RX procedure, in performing surgery. In this respect plaintiff submitted Dr. Shiau’s deposition testimony to the effect that the hospital permitted him to use the system, but never inquired into his background or training with the procedure, and indicating that he had only ever used the system in cervical spine surgery once or twice before. Plaintiff’s neurosurgery and anesthesiology experts opined that the hospital failed to undertake due diligence in determining whether Shiau had the requisite training and experience to utilize the procedure in cervical spinal surgery, and this provided a further basis for the hospital’s Summary Judgment motion to be denied. 24. LaVecchia v. Bilello, ___ N.Y.S.2d ___, 2010 N.Y. Slip Op. 06363 (2d Dep’t 2010). Here, as the Supreme Court correctly determined, the defendant Raphaelson Dental Associates (hereinafter RDA) failed to make a prima facie showing of its entitlement to judgment as a matter of law. RDA’s dental expert relied upon, inter alia, an unsworn dental report by Dr. Jenal and dental records that were not annexed to the motion (see Farmer v City of New York, 25 AD3d 649, 650, 810 N.Y.S.2d 90 (2d Dep’t 2006)). Moreover, the affidavit of RDA’s dental expert was conclusory, and failed to rebut all of the specific allegations of dental malpractice set forth in the plaintiff’s verified bill of particulars (see Terranova v Finklea, 45 AD3d 572, 572, 845 N.Y.S.2d 389 (2d Dep’t 2007); Ward v Engel, 33 AD3d 790, 791, 822 N.Y.S.2d 608 (2d Dep’t 2006)).

208


Other cases in which defendants’ Summary Judgment motions were denied: Larsen v. Banwar, 70 A.D.3d 1337, 893 N.Y.S.2d 794 (4th Dep’t 2010) - Summary Judgment denied as defendant did not refute all allegations in plaintiff’s Bill of Particulars. Stubbs v. Ellis Hosp., 68 A.D.3d 1617, 892 N.Y.S.2d 606 (3d Dep’t 2009) - Summary Judgment denied as premature. Cole v. Tischler, 68 A.D.3d 1595, 893 N.Y.S.2d 303 (3d Dep’t 2009) - Summary Judgment denied based on the adequacy of plaintiff’s expert affidavit in opposition. James v. Wormuth, 74 A.D.3d 1895, 904 N.Y.S.2d 845 (4th Dep’t 2010) - Defendant failed to address each of the specific factual claims of negligence raised in plaintiff’s Bill of Particulars. Plourd v. Sidoti, 69 A.D.3d 1038, 891 N.Y.S.2d 744 (3d Dep’t 2010). Sepulveda v. Dayal, 70 A.D.3d 420, 893 N.Y.S.2d 549 (1st Dep’t 2010). Ocasio-Gary v. Lawrence Hosp., 69 A.D.3d 403, 894 N.Y.S.2d 11 (1st Dep’t 2010). Borrero v. Baturone, 68 A.D.3d 666, 891 N.Y.S.2d 71 (1st Dep’t 2009). Lorenzo v. Kahn, 74 A.D.3d 1711, 903 N.Y.S.2d 222 (4th Dep’t 2010). Cupelli v. Lawrence Hosp., 71 A.D.3d 496, 895 N.Y.S.2d 818 (1st Dep’t 2010). Latona v. Roberson, 71 A.D.3d 1498, 897 N.Y.S.2d 378 (4th Dep’t 2010) - Plaintiff submitted an expert affidavit adequately attesting to departures from accepted medical practice that were a competent producing cause of the injury. Chipley v. Stephenson, 72 A.D.3d 1548, 900 N.Y.S.2d 538 (4th Dep’t 2010). Padilla v. Verczky-Porter, 66 A.D.3d 1481, 885 N.Y.S.2d 843 (4th Dep’t 2009). Cham v. St. Mary’s Hosp. of Brooklyn, 72 A.D.3d 1003, 901 N.Y.S.2d 65 (2d Dep’t 2010). Summary Judgment Denied - Defendant Failed to Make a Prima Facie Showing

C. Summary Judgment to Plaintiff

25. McKenzie v. Abrahams, 72 A.D.3d 758, 899 N.Y.S.2d 290 (2d Dep’t 2010). Summary Judgment to Plaintiff Defendant surgeon admitted that he departed from the accepted standards of care when he inadvertently operated on the wrong spinal disc, thereby necessitating a second surgery to correct the error. Plaintiff’s motion for a Summary Judgment was granted in view of defendant’s admission. 26. Wigand v. Modlin, 69 A.D.3d 615, 892 N.Y.S.2d 483 (2d Dep’t 2010). Plaintiff’s Motion for Summary Judgment Denied Plaintiff established a prima facie entitlement to judgment as a matter of law. However, defendant raised a triable issue of fact in opposition as to whether he departed from the relevant standard of care. Accordingly, plaintiff’s Summary Judgment motion was denied.

209


VIII. TRIAL PRACTICE A. Expert Witness Disclosure

Carter v. Isabella Geriatric Ctr. Inc., 71 A.D.3d 443, 896 N.Y.S.2d 332 (1st Dep’t 2010). Plaintiff’s claims dismissed for inadequate expert witness disclosure. Plaintiff’s experts were precluded from testifying at trial and the action was dismissed, with the Court noting as follows with respect to the inadequacies of plaintiff’s expert witness disclosure: The challenged expert disclosure statements do not “disclose in reasonable detail . . . the substance of the facts and opinions on which each expert is expected to testify” (CPLR 3101(d)(1)(i)). As the pretrial conference court aptly put it in dismissing the complaint, the “sea of generalities” contained in these statements largely duplicate the similarly verbose generalities contained in the complaint and bill of particulars and “essentially tell the defendants nothing about what they are supposed to be defending,” although they do reveal “that there was no real attempt to consult with an expert” (citation omitted). . . . Nor do the many statutes and regulations serially cited in plaintiff’s pleadings without reference to subsections provide any useful disclosure regarding standards of care and defendant’s departures therefrom. Plaintiff has been given ample opportunity to provide useful expert disclosure, and her prolonged and repeated failure to do so permits an inference of willfulness warranting dismissal of her medical malpractice claims.

B. Frye Hearings

1. Fontana v. LaRosa, 74 A.D.3d 1016, 902 N.Y.S.2d 401 (2d Dep’t 2010). Defendants appealed from denial of their motion to preclude certain testimony of plaintiff’s expert witness, or to direct that witness to submit to a Frye hearing. Since this was an evidentiary ruling it was not appealable.

C. Adjournments and Continuances

1. Verdi v. Ho, 71 A.D.3d 1004, 897 N.Y.S.2d 235 (2d Dep’t 2010). A week prior to trial, plaintiffs discovered that their medical expert had elected not to testify. Accordingly, plaintiffs’ attorney, in effect, made an application for a continuance in order to obtain a new expert. Defendants moved to dismiss, which Supreme Court granted. This appeal ensued. The Second Department reversed and reinstated the case, noting that the plaintiffs’ request for a continuance should have been granted. The Court stated as follows: “Although an application for a continuance is addressed to the sound discretion of the trial court, it is an improvident exercise of discretion to deny a continuance where the application is properly made, is not made for the purpose of delay, the evidence is material, and the need for a continuance did not result from the failure to exercise due diligence” (citation omitted). Balancing the appropriate factors, the Supreme Court improvidently exercised its discretion in, in effect, denying the plaintiffs’ application, in effect, for a continuance and in granting defendants’ application to dismiss the amended complaint.

D. Evidence

1. Salm v. Moses, 13 N.Y.3d 816, 890 N.Y.S.2d 385 (2009). Plaintiff alleged dental malpractice in failing to properly repair an oral fistula. At trial defendant moved in limine to preclude plaintiff from cross-examining his expert on the fact that both defendant and the expert were shareholders of and insured by the same dental malpractice insurance company. Plaintiff opposed the motion but did not request a voir dire of the expert to inquire into his

210


connection with the insurer. The Trial Court granted the motion, finding that the probative value of the inquiry would be outweighed by the prejudicial effect of having defendant’s insurance coverage revealed to the jury. After a defendant’s verdict, the plaintiff appealed. The Appellate Division affirmed. The Court of Appeals affirmed the evidentiary ruling, finding no abuse of discretion. The Court acknowledged that liability insurance has become increasingly more prevalent, and that consequently jurors are more likely to be aware of the possibility of insurance coverage. Nonetheless the Courts have continued to recognize the potential for prejudice. The Court of Appeals noted, however, that this rule is not absolute. Rather, if the evidence is relevant to a material issue in the trial, it may be admissible notwithstanding the resulting prejudice of divulging the existence of insurance to the jury. The majority concluded by noting that “a voir dire of an expert outside the presence of the jury can better aid the court in exploring the potential for bias.” Justice Pigott, in a concurring opinion joined by Chief Judge Lippman and Judge Ciparik, stated that “courts should no longer treat insurance coverage as the third rail of trial practice such that it can neither be mentioned, even incidentally, nor be the basis of appropriate inquiry as to possible bias.” The concurring judges noted that it is routine - even statutory - that jurors be asked about their relationship with an insurance company, because someone so situated may have a tendency to find for a defendant. Justice Pigott continued: Enter the defendant in this case who, by way of a motion in limine, sought to prevent the jury from learning that defendant’s expert suffers the very disability that would have subjected them to a challenge to the favor - that he owns stock in a company that writes liability insurance. In fact, he owns stock in the very insurance company that will be required to pay any judgment rendered against the defendant in this case. The jury should be made aware of that fact. To keep this information from them means they are arriving at a verdict without all the material facts before them - something every court seeks to prevent. 2. Grogan v. Nizam, 66 A.D.3d 734, 887 N.Y.S.2d 607 (2d Dep’t 2009). Mention of Insurance by Plaintiff’s Expert Results in Mistrial Plaintiff’s expert was asked whether he was involved in any risk management work, to which he replied “I’m a Risk Management Consultant to the Princeton Insurance Company, which is a professional liability carrier . . . .” Defense counsel moved for a mistrial following which the judge declared a brief recess. Before the Trial Court issued a decision on defendants’ motion, defendant withdrew the request for a mistrial and instead moved to strike the question and answer from the record. During deliberations the jury sent a note regarding damages. After some discussion about the question, the foreperson stated: “I don’t know if I should ask this or not, is this award given as a whole or is it given yearly by the insurance company to the individual?” Thereafter, the jury returned a verdict in the plaintiff awarding $225,000.00 for past pain and suffering, $100,000.00 for future pain and suffering, and $25,000.00 for loss of services. Defendants again moved for a mistrial and moved to set aside the verdict as against the weight of the evidence. The Court declared a mistrial, set aside the verdict and ordered a new trial. The Second Department affirmed, noting that evidence of insurance is inadmissible. The Court held that where testimony concerning insurance is elicited during trial, even innocently by counsel, and the opposing party makes a post verdict motion for a mistrial, it is appropriate to grant that motion even where the offending testimony has been stricken from the record if it cannot be determined that the offending testimony clearly did not have an influence on the verdict. In this case, although there was only one mention of insurance by

211


plaintiff’s expert, it could not be said that it did not have an influence on the jury, particularly in view of the foreperson’s question and comment on the record. 3. Gotto v. Eusebe-Carter, 69 A.D.3d 566, 892 N.Y.S.2d 191 (2d Dep’t 2010). Spoilation - Missing Records - Adverse Inference Charge In this birth injury case arising out of the premature delivery of the infant plaintiff, defendant hospital indicated that the fetal monitoring strips “no longer existed.” Plaintiff’s motion to strike defendant’s answer for spoliation was granted by the Trial Court. This order was modified by the Second Department, substituting instead a provision granting plaintiff’s motion to the extent of directing that an adverse inference charge be given at trial with respect to the fetal monitoring data, with the Court noting as follows: Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, thereby depriving the nonresponsible party of the ability to prove its claim, the responsible party may be sanctioned by the striking of its pleading (citation omitted). However, a less severe sanction is appropriate where the absence of the missing evidence does not deprive the moving party of the ability to establish his or her case (citation omitted). The determination of a sanction for spoliation is within the broad discretion of the Court (citation omitted) (emphasis added). The Court noted that plaintiff failed to show that the alleged spoliation left her “prejudicially bereft” of the means to prosecute the action against the hospital. Author’s note: Had plaintiff submitted a physician’s affidavit to the effect that it was impossible to come to an opinion with respect to departure and/or causation absent the missing records, perhaps a different result would have been reached. 4. Perez v. Madoff, 69 A.D.3d 821, 894 N.Y.S.2d 463 (2d Dep’t 2010). Bifurcation Granted Although trial courts are encouraged to conduct bifurcated trials in personal injury cases, a unified trial should be conducted where the nature of the injuries has an important bearing on the question of liability (citation omitted). Here, however, the parties stipulated that the infant plaintiff sustained permanent, serious, and debilitating neurological injuries, and the plaintiffs failed to demonstrate that further evidence as to the extent of his injuries would have helped determine the existence or extent of the defendant’s liability (citation omitted). Therefore the court did not improvidently exercise its discretion in granting the defendants’ respective motions for a bifurcated trial on the issues of liability and damages (citation omitted). 5. Zaytsev v. Zelman, 73 A.D.3d 909, 901 N.Y.S.2d 653 (2d Dep’t 2010). In this case it was undisputed that certain radiology films from 2004 were lost while in the custody of plaintiff’s counsel. Plaintiff submitted affidavits of a paralegal and a temporary cleaning person, as well as a letter from plaintiff’s counsel, concluding that the 2004 films were inadvertently discarded as trash. The Appellate Division precluded plaintiff’s expert from offering any evidence at the time of trial with respect to his review and interpretation of the missing films. 6. Coleman v. Putnam Hosp. Ctr., 74 A.D.3d 1009, 903 N.Y.S.2d 502 (2d Dep’t 2010). Spoilation Results in Adverse Inference Charge Plaintiff moved to strike the answer of defendant Putnam Hospital Center based on spoilation of evidence. The motion was granted only to the extent of directing that an adverse inference charge be given at trial with respect to the fetal heart monitoring data. The Appellate Division affirmed, and specifically approved the following charge:

212


The defendant Putnam Hospital Center was required by the law of this state to maintain the fetal heart monitor strips and failed to do so without adequate explanation. Accordingly, in weighing the evidence, you may, although you are not required to, infer that the fetal heart monitor strips would not have supported the defendant Putnam Hospital Center on the question of whether the plaintiff had fetal heart decelerations and/or variability and would not contradict the evidence offered by the plaintiff on that question, and you may, although you are not required to, draw the strongest inference against the defendant Putnam Hospital Center on that question which the opposing evidence permits. Plaintiff’s motion to strike defendant’s answer for failure to maintain this crucial evidence was denied, in part because the hospital chart contained nurses’ notations specifying the fetal heart rate at certain times during the course of labor, as a result of which plaintiff failed to clearly establish that the unavailability of the fetal heart monitoring data “fatally compromised [his] ability to prosecute this action.” Nonetheless, because the absence of the fetal heart monitor strips placed plaintiff at a significant disadvantage in proving his claim, the adverse inference charge quoted above was warranted. 7. Haller v. Gacioch, 68 A.D.3d 1759, 890 N.Y.S.2d 854 (4th Dep’t 2009), leave to appeal denied, 14 N.Y.3d 707, 900 N.Y.S.2d 244 (2010). Plaintiff appealed from a defendant’s verdict, contending that the Trial Court erred in refusing to permit the prior testimony of her expert at a Frye hearing to be read to the jury. The Fourth Department disagreed, because that testimony did not constitute “prior trial testimony” within the meaning of CPLR 4517(a). 8. Dolaway v. Urology Assoc. of Northeastern New York, P.C., 72 A.D.3d 1238, 897 N.Y.S.2d 776 (3d Dep’t 2010). Plaintiff underwent endoscopic surgery to remove a kidney stone, after which two broken pieces of guide-wire sheathing were left in his ureter. Defendant’s motion for Summary Judgment was denied, with the Court holding that the evidentiary doctrine of res ipsa loquitur applied. The Court held that “under the circumstances here, expert testimony is not necessary to enable the jury to conclude that, more likely than not, the resulting injury was caused by the surgeon’s negligence.”

E. CPLR 4401- Dismissal at the Close of Plaintiff’s Case

1. Goldberg v. Horowitz, 73 A.D.3d 691, 901 N.Y.S.2d 95 (2d Dep’t 2010). Dismissal of Plaintiff’s Case at the Close of Evidence Reversed, New Trial Granted Decedent presented to defendant complaining of chest congestion and pain in his neck and shoulder. Defendant performed an EKG. Although defendant did not rule out the possibility that there was a cardiac cause for his complaints, he sent decedent home because he believed the EKG showed no evidence of acute myocardial ischemia. Twelve hours later, decedent suffered a massive heart attack following which his physical condition declined, and he died approximately three years later. At trial plaintiff’s expert, a Board Certified internist, testified that the EKG in question showed abnormalities indicative of ischemia, or lack of blood flow, to a segment of the heart. According to the expert this was ischemia at rest, a condition much more dangerous than exercise induced ischemia, because it signifies that an area of the heart is losing blood supply without provocation. The expert testified that defendant departed from good and accepted medical practices by failing to recognize ischemia at rest and direct decedent to a hospital Emergency Room for medical intervention to either prevent the heart attack from occurring, or reduce the amount of muscle damage to the heart from the heart attack which was already in progress.

213


Defendant’s expert witness as well as decedent’s treating cardiologist (testifying on defendant’s behalf) disagreed, both maintaining that the EKG did not show any changes indicative of an acute ischemic event. Although they did not believe that decedent was in need of immediate cardiac intervention at the time of the EKG, they could not rule out the possibility that he could have had a better cardiac outcome if he had arrived in the Emergency Room that afternoon, rather than close to midnight. Defendant’s motion for judgment as a matter of law at the close of evidence, pursuant to CPLR 4401 was granted by the Trial Court, which concluded that there was insufficient proof that the alleged departure was a proximate cause of his heart attack. The Appellate Division reversed, noting that a motion for judgment as a matter of law pursuant to CPLR 4401 can only be granted where there is no rational process by which the jury could find in plaintiff’s favor. In making the evaluation the Trial Court must afford the party opposing the motion every inference which may be properly drawn from the facts presented, and must consider the facts in a light most favorable to the nonmovant. In this respect, the Second Department held that the testimony of plaintiff’s expert physician provided a rational basis upon which the jury could have found that defendant departed from accepted medical practices. The conflicting expert testimony presented a question of fact for the jury to resolve. A plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased the injury. 2. Berger v. Bronsky, 75 A.D.3d 475, 905 N.Y.S.2d 168 (1st Dep’t 2010). Judgment in favor of defendant in this dental malpractice case affirmed. Although plaintiff’s expert testified as to defendant’s departures from accepted orthodontic practice in failure to take X-rays, he did not specifically opine on whether that departure caused plaintiff’s injury. Given the lack of evidence on causation, the Trial Court properly refused to submit the issue of whether defendant was negligent in not radiographically monitoring plaintiff’s progress.

F. Verdicts and Judgments

1. Diarassouba v. Urban, 71 A.D.3d 51, 892 N.Y.S.2d 410 (2d Dep’t 2009). Settlement Not Placed on the Record Unenforceable - Plaintiff’s Verdict Stands After the jury retired to deliberate, plaintiff’s counsel communicated to defendant’s counsel that his client had authorized him to accept a settlement offer in the amount of $150,000.00. Rather than confirming the settlement, defense counsel asked in response “Do we have a settlement?” This was defense counsel’s only and final mention of the word “settlement” until after a jury verdict was read. Plaintiff’s counsel informed the Court clerk that the parties had reached a settlement, but the clerk did not record this information, and said he would inform the judge who was already on her way to the Courtroom to read a new jury note. When the judge arrived at the Courtroom, she informed counsel that the jury had reached a verdict. Defense counsel left the Courtroom for a short while. Upon defense counsel’s return to the Courtroom, plaintiff’s counsel asked the Court to memorialize the settlement on the record before taking the verdict, but the Court refused. Defense counsel said nothing - he neither joined in plaintiff’s application to memorialize the settlement on the record, nor did he say anything to confirm that a settlement existed. A verdict was then taken in plaintiff’s favor, finding defendants each 35% at fault, and awarding plaintiff $800,000.00 for past pain and suffering and $650,000.00 for future pain and suffering. Thereafter Supreme Court granted defendant’s motion to enforce the purported stipulation of settlement, finding that a settlement had been made in open Court. The Second Department reversed,

214


noting that “a settlement agreement is valid only if both parties stipulate to the settlement in a written agreement or it is made in open court and placed on the record.” The Court reviewed various Court of Appeals cases, indicating that settlement agreements are only enforceable if they are “definite and complete,” and if there is a “clear mutual accord between the parties.” In this case, the settlement was never reduced to writing or entered on the record, and in fact, the Trial Court explicitly refused to place a settlement on the record before taking the verdict. Author’s note: A fair reading of the Court’s decision indicates that defense counsel assumed that because there was a quick verdict, that it would be a defendant’s verdict, and thus sought to disavow any settlement. However, when the jury returned a plaintiff’s verdict, defense counsel sought to enforce the very settlement it had disavowed moments earlier. 2. Dockery v. Sprecher, 68 A.D.3d 1043, 891 N.Y.S.2d 465 (2d Dep’t 2009). Plaintiff’s Verdict Reinstated, Apportionment of Liability Altered, Damages Reduced In this medical malpractice case, the jury returned a verdict in plaintiff’s favor holding defendants Overby and Hollis 45% at fault, and nonparties 55% at fault. The jury returned a verdict in excess of $100,000,000.00, including awards of $10,000,000.00 for past pain and suffering, $27,750,000.00 for future pain and suffering, $18,000,000.00 for past loss of services, $48,700,000.00 for future loss of services, and past lost earnings of $370,000.00, and future loss earnings of $80,000.00. After the jury verdict, Supreme Court granted the motion of defendants Overby and Hollis pursuant to CPLR § 4401 made at the close of plaintiff’s case, for judgment as a matter of law dismissing the complaint against them. The Second Department reversed, noting that:

To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove that the defendant departed from good and accepted standards of medical practice, and that the departure was a proximate cause of the injury (citation omitted). Generally, expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause (citation omitted). . . . However, the Supreme Court erred in granting, after the jury verdict, that branch of the motion of the defendants [Overby and Hollis] pursuant to CPLR 4401, made at the close of plaintiff’s case, which was for judgment as a matter of law dismissing the complaint insofar as asserted against them on the ground that the plaintiffs failed to establish a prima facie case of causation. The evidence at trial was sufficient for the jury to infer that Dr. Overby’s conduct in failing to recommend that surgery be performed on Dockery within 24 hours diminished his chance for a better outcome or increased his injuries (citation omitted). However, the Second Department remitted the matter for a new trial as to the defendants, unless plaintiff stipulated to a reduction of their apportionment of responsibility to 10%, and a reduction of the damages for past pain and suffering from $10,000,000.00 to the principal sum of $1,200,000.00; future pain and suffering from $27,750,000.00 to $6,750,000.00; past loss of services from $18,000,000.00 to $350,000.00; and future loss of services from $48,700,000.00 to $1,000,000.00. Thus, the award of over $100,000,000.00 was reduced to a total sum of $9,750,000.00, judgment on which was further reduced due to the reduction in the apportionment of fault to 10% for the defendants.

215


3. Walsh v. Brown, 72 A.D.3d 806, 898 N.Y.S.2d 250 (2d Dep’t 2010). Judgment for Plaintiff Affirmed - Expert Need Not Be in Same Medical Specialty Verdict in judgment in plaintiff’s favor were sustained, with the Court noting as follows:

The appellants’ contention that the plaintiff’s expert, a board-certified obstetrician/gynecologist surgeon, was unqualified to give an expert opinion on the standard of care of an obstetrician/gynecologist oncologist surgeon merely because he was not an oncologist, is without merit. A physician need not be a specialist in a particular field in order to qualify as a medical expert (citation omitted). Rather any alleged lack of knowledge in a particular area of expertise is a factor to be weighed by the trier of fact that goes to the weight of the testimony (citation omitted).

However, the Court did reduce plaintiff’s damages from $750,000.00 to $200,000.00. Plaintiff, a 62 year old woman, had suffered a right femoral neuropathy during defendants’ performance of a total abdominal hysterectomy-bilateral salpingo-oophorectomy and lymph node dissection. 4. Beck v. Westchester County Health Care Corp., 72 A.D.3d 714, 901 N.Y.S.2d 280 (2d Dep’t 2010). Verdict and Judgment for Defendant Set Aside; New Trial Ordered Plaintiff claimed she developed Hepatitis C due to unsanitary conditions during her surgery at defendant medical center. The evidence at trial indicated that before the surgery, plaintiff had tested negative for Hepatitis C, but eight weeks after she was diagnosed with the virus. Further, she had the identical form of Hepatitis C virus as the patient who immediately proceeded her in the same Operating Room. The incubation period for the disease coincided with the date of her treatment. Despite the above, the jury found that the defendants did not depart from good and accepted standards of care. Supreme Court granted plaintiff’s motion pursuant to CPLR 4404 to set aside the verdict as contrary to the weight of the evidence and granted a new trial. The Second Department affirmed. 5. Sutton v. Kassapides, 73 A.D.3d 1021, 900 N.Y.S.2d 687 (2d Dep’t 2010). Verdict in favor of defendant reversed, and new trial granted, based upon “the cumulative effect of the improper conduct of the trial court, both during cross-examination and in its charge to the jury.” Further, the Court erred in giving an “error in judgment” charge, since there was no evidence that the defendant had to consider and choose among medically acceptable alternatives. 6. Martinez v. Te, 75 A.D.3d 1, 901 N.Y.S.2d 161 (1st Dep’t 2010). Defense verdict affirmed, despite alleged juror confusion. Plaintiff sued for malpractice for injuries allegedly suffered during defendant’s performance of “water induced thermo-therapy” to treat plaintiff’s enlarged prostate. During deliberations, the jury sent a series of notes. At 11:20 a.m., the jury asked for defendant Te’s testimony. At 11:50 a.m., they requested Dr. Te’s records. At 1 p.m., the jury asked “are there any exhibits in evidence that refer to the accepted standard of care for the WIT procedure?” The Court responded “[n]o, there are no documents in evidence except for the standard. You have to go to the testimony of any and all doctors who covered that, that area.” Plaintiff did not object to this response or ask that the jury be questioned about the note.

216


The jury sought no further clarifications and sent no further notes. At 3:15, they returned a verdict for the defendant. During polling, when responding to the second interrogatory as to whether defendant departed from accepted standards of medical care by performing the WIT procedure, one juror responded “yes, because we don’t have the actual - well, I say yes and why, because I say no because we don’t have the standard procedures to go for.” The Court responded “there was a question from the jury asking for anything, any documents setting forth the standard. There were none.” The juror responded “there weren’t, so.” Plaintiff’s counsel sought no clarification of the juror’s statements nor made any objections prior to the jury being discharged. Several months later plaintiff moved to set aside the verdict, arguing that the proof of liability was overwhelming, and that the jury was confused by the absence of a circumstantial evidence charge. Plaintiff submitted an affidavit of the juror who apparently made the statement at the time of the verdict, stating that “the jury had a very hard time understanding the questions” on the verdict sheet, and that he thought the jury needed a document or statute that set forth the standard of care. Further, he stated that he thought plaintiff was entitled to be compensated by defendant, but that he “didn’t know how to use the evidence they had to answer the questions.” The Trial Court granted plaintiff’s motion. Although the Court declined to consider the juror affidavit, it made findings that, per the First Department decision “explicitly mirrored” the juror’s assertions. The First Department reversed, noting that the bulk of plaintiff’s arguments were unpreserved. In this respect, the Court stated as follows: The absence of any objection or request for clarification with regard to the court’s response to the jury note, or to the verdict, on the basis that the jury was “confused,” prior to the jury being discharged, has deprived this Court of an adequate record to review the claim (citation omitted). If the verdict had been questioned at the time, the matter could have been promptly resolved. Hence, the court, in setting aside the verdict on the basis asserted, necessarily deprived Dr. Te of an opportunity to address the claim when it could have been resolved prior to the jury being discharged. 7. Mancuso v. Koch, 74 A.D.3d 1736, 904 N.Y.S.2d 832 (4th Dep’t 2010). Verdict and Judgment for Defendant Affirmed Plaintiff claimed defendant was negligent in his repair of a fractured middle finger on her left hand, resulting in malunion. Plaintiff claimed the Trial Court erred in limiting her presentation of evidence concerning the alleged misrepresentation of educational credentials of the defendant’s expert. However, the record indicated that plaintiff’s counsel “had a full opportunity to cross-examine the expert concerning his educational background and the alleged misrepresentations, and thus any further proof on the issue would have been cumulative.” Plaintiff also contended that the Court demonstrated bias in favor of the defendant in its questioning of defendant’s expert concerning the risks associated with plaintiff’s surgery, thereby indicating to the jury that the malunion was an accepted risk of the surgery. The Fourth Department stated that: Although we note that the court could have crafted the wording of its question in a more neutral manner, it cannot be said that the court overstepped its “broad authority to . . . elicit and clarify testimony . . . when necessary” (citation omitted). Moreover, any possible prejudice was minimal inasmuch as plaintiff’s own expert agreed that the malunion was a risk of the surgery.

217


8. Garcia v. Dolich, 71 A.D.3d 592, 896 N.Y.S.2d 868 (1st Dep’t 2010). Defendant’s verdict and judgment sustained, over plaintiff’s objection to defendant’s summation, which plaintiff claimed was permeated with prejudicial comments intended to destroy her character and credibility, and that of her experts. The Court noted that “[n]otwithstanding an occasionally injudicious remark, the fact remains that counsel’s summation, when viewed in the context of the entire trial, was well within the latitude afforded attorneys in advocating their cause.” 9. Stewart v. Odrich, 68 A.D.3d 506, 889 N.Y.S.2d 449 (1st Dep’t 2009), leave to appeal denied, 14 N.Y.3d 706, 899 N.Y.S.2d 130 (2010). Based upon the testimony of defendant’s experts and the medical evidence, the jury could have reasonably concluded that defendant did not depart from accepted standards of medical care. The brevity of the jury’s deliberations alone did not undermine plaintiff’s right to a fair trial. 10. Midler v. Crane, 14 N.Y.3d 877, 903 N.Y.S.2d 334 (2010). Plaintiff alleged defendants were negligent in failing to diagnose lupus, resulting in the need for a kidney transplant. On her first visit to defendant in October 2000, certain diagnostic tests were run, one of which yielded a false positive result for syphilis, and another showed the presence of an antinuclear antibody. This was significant because it constituted two of the eleven criteria of the American College of Rheumatology for diagnosing lupus erythematosus, an autoimmune disease which can affect vital organs. When this disease involves the kidneys, it can be termed lupus nephritis. To be diagnosed with lupus, one must have four of the eleven criteria. Thereafter in February 2001, defendant diagnosed plaintiff with inflammatory arthritis, another of the ACR criteria. At no time did defendant ever again do a urinalysis. In October 2002, plaintiff saw another physician, who amongst other things performed a urinalysis which was positive for protein, indicating a renal problem. This physician instructed plaintiff to follow up with Dr. Crane, but she did not do so until January 2003 nearly three months later. Although this physician directed his secretary to fax the lab results to defendant, defendant denied ever receiving the urinalysis results. During plaintiff’s January 2003 visit to defendant, he too performed a urinalysis which was positive for renal disease, and a biopsy confirmed that she had lupus nephritis. Defendant prescribed medications which he told her would save her kidneys, but plaintiff discontinued one of the medications and reduced the prescribed dosage of another on her own, because of its side effects. Thereafter plaintiff’s kidneys began to fail requiring five months of dialysis and eventually requiring a kidney transplant. At trial plaintiff’s expert testified that defendant’s failure to administer a urinalysis constituted a departure, and that defendant should have been closely monitoring for this and other lupus indications because he already knew plaintiff exhibited three of the criteria. The jury rendered a verdict finding that defendant did not depart from good and accepted medical practices in not diagnosing and treating lupus before January 2003, but did find that defendant departed from good and accepted medical practices “‘in the manner in which he monitored the plaintiff . . . , including not performing urinalysis tests between October 20, 2000 and January 29, 2003,’ and that this was a substantial factor in causing injury to the plaintiff” (Midler v. Crane, 67 A.D.3d 569, 889 N.Y.S.2d 149 (1st Dep’t 2009) (emphasis added)). The jury also found that plaintiff herself was negligent in failing to promptly heed Dr. Curtis’ instruction that she consult with the defendant and that this was a contributing factor in causing her injury. The jury also found that plaintiff’s decisions not to take the prescribed medication as directed were negligent, and that this negligence contributed to her injury. The jury apportioned 40% of the fault to plaintiff herself, and 60% to defendant.

218


The Court of Appeals ordered a new trial, holding that the jury’s finding that defendants’ failure to monitor the patient was a substantial factor in causing the injury, but that the negligence of a non-party in failing to transmit the results of the urinalysis was not. 11. Brown v. Speaker, 66 A.D.3d 422, 886 N.Y.S.2d 392 (1st Dep’t 2009). Verdict and judgment for defendant sustained. [T]he verdict in defendants’ favor on plaintiff’s informed consent claim was not against the weight of the evidence, i.e., it could have been reached on a fair interpretation on the evidence (citation omitted). The consent form signed by plaintiff, who is a lawyer, warned “it is impossible to list every conceivable complication”; the jury could have credited the opinion of one of defendants’ experts that not every risk has to be disclosed in order to obtain informed consent . . . . 12. Avila v. City of New York, 73 A.D.3d 444, 901 N.Y.S.2d 23 (1st Dep’t 2010). $8,000,000.00 judgment in plaintiff’s favor reversed, for improper replacement of a juror with an alternate. Several hours after jury deliberations began, juror #3 ran out of the jury room stating “I’m not going back there again . . . I’m starting to physically fight and I’m not going to be in the room.” Thereafter, without objection, the trial judge declined to interview the juror to find out what caused her to leave the jury room. Instead he gave the jury a modified Allen charge (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154 (1896)). During the charge, the Court told the jury that the “heated” deliberations caused juror #3 to become “very upset and a little bit fearful” and instructed them to continue to deliberate in an “adult way” without “invective” or “threats.” The next morning juror #3 delivered the following note to the Court:

Your Honor, after taking the night off and trying to relax, I have come here and decided that I must write a letter to you regarding yesterday’s deliberation. There is a juror who has been intimidating and threatening. In addition, he has physically threatened another juror and the situation was ended when other jurors intervened. I do not believe that I should be intimidated and/or feel threatened to change my decision. I do not feel comfortable to make a rational decision on this case, because of this person. Respectfully, . . . Juror Number Three.

The Court heard from the plaintiff’s lawyer, and then stated it would replace the juror with one of the alternates and instruct the jury to begin their deliberations again. Defense counsel protested, arguing that the Court should interview all the jury members to determine whether another juror was exhibiting threatening behavior, and suggesting that perhaps the allegedly threatening juror should be removed instead. Defense counsel noted that the juror in question did not state she could no longer deliberate. The Court declined to interview any jurors on the basis that it would interfere with the jury process, and instead stated it would relieve the juror. Defense counsel excepted. In reversing the judgment in favor of plaintiff, the First Department held as follows:

The trial court should have conducted an inquiry into juror number three’s complaint before discharging her (citation omitted). The juror’s note here did not simply report a “spirited dispute” or “belligerent conduct” but instead alleged that one jury member had physically threatened another (citation omitted). In light of the serious nature of the complaint, it was incumbent on the court, in the first instance, to interview the juror making the allegation, and then determine if any further inquiry of the other jurors was necessary. The court’s discharge of the complaining juror without any inquiry or finding that the juror was “unable to perform [her] duty” (CPLR 4106) was improper (citation omitted).

219


Contrary to the trial court’s characterization, the juror’s note did not request that she be removed from the jury. She never specifically indicated that she could not deliberate fairly or that she wished to be relieved from further service. Rather, she expressed her concern that she would not be comfortable continuing if she were to be intimidated by the other juror or threatened to change her decision. The court’s concern that it could not conduct an inquiry of the other jurors without interfering with the deliberative process, while understandable, was misplaced. The court could, however, have conducted a further inquiry into the allegations while at the same time ensuring that no information about the deliberations be disclosed (citation omitted). The trial court also should not have replaced the disaffected juror with an alternate without defense counsel’s consent. The substitution of an alternate juror after deliberations have commenced, without consent, violates the right to a trial by jury, invalidating any resulting verdict (citation omitted). Here the record is clear that defendants did not agree to replacing the juror and in fact specifically objected to any substitution (citation omitted). 13. Ewanciw v. Atlas, 65 A.D.3d 1077, 885 N.Y.S.2d 131 (2d Dep’t 2009). Defendant’s verdict sustained, despite the Trial Court having committed error in admitting into evidence a portion of a medical report prepared by a physician who did not testify at trial, which set forth the results of a nerve conduction study performed upon the plaintiff. This was found to be harmless error. 14. Gershon v. Anant, 72 A.D.3d 1022, 901 N.Y.S.2d 86 (2d Dep’t 2010). Defendant’s verdict and judgment sustained, with little discussion of the facts and issues raised on appeal. 15. Mancusi v. Setzen, 73 A.D.3d 992, 900 N.Y.S.2d 662 (2d Dep’t 2010). Verdict and Judgment for Defendant Affirmed A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence (citation omitted). “The jury's resolution of conflicting expert testimony is entitled to great weight, as it is the jury that had the opportunity to observe and hear the experts” (citation omitted). Here, the jury's determination that Dr. Setzen did not depart from good and accepted medical practice in not diagnosing the plaintiff's sinus cancer sooner was based upon a fair interpretation of the evidence presented at trial and, thus, should not be disturbed (citation omitted). 16. Mangaroo v. Beckman, 74 A.D.3d 1293, 904 N.Y.S.2d 212 (2d Dep’t 2010). Verdict and Judgment in Favor of Defendant Sustained Where both plaintiff and defendants present party and expert testimony in support of their respective physicians, it was within the province of the jury to determine the credibility of those witnesses. Here, the jury verdict on these issues was not against the weight of the evidence.

G. Damages

17. Abdelkader v. Shahine, 66 A.D.3d 615, 889 N.Y.S.2d 594 (2d Dep’t 2009). Plaintiff’s Verdict Sustained - Damages Reduced. In this medical malpractice case seeking recovery for the infant plaintiff’s Erb’s palsy, the jury returned a verdict in favor of plaintiff and awarded damages in the amount of $300,000.00 for past pain and suffering, and $500,000.00 for future pain and suffering. The jury verdict on liability was affirmed; however, the past pain and suffering damages were reduced to $150,000.00, and the damages for future pain and suffering were reduced to $400,000.00, for a total award of $550,000.00. Although not noted in the decision, the infant plaintiff suffered from a mild Erb’s palsy, with some scapular winging and biceps muscle injury.

220


18. Perez v. St. Vincent’s Hosp. & Med. Ctr. of New York, 66 A.D.3d 663, 886 N.Y.S.2d 486 (2d Dep’t 2009). Plaintiff’s Verdict Sustained - Damages Reduced. In this claim for medical malpractice and wrongful death, the jury returned a verdict in favor of plaintiff, and awarded damages in the amount of $1,500,000.00 for pain and suffering, and $200,000.00 each to decedent’s three children. On appeal, the Second Department reduced the pain and suffering award from $1,500,000.00 to $800,000.00. Furthermore, the Court vacated the awards of $200,000.00 each to two of the decedent’s three children, as there was no evidence of any pecuniary injury to those children. 19. Dehaarte v. Ramenovsky, 67 A.D.3d 724, 889 N.Y.S.2d 68 (2d Dep’t 2009). Plaintiff’s Verdict Sustained - Damages Reduced The Second Department affirmed a judgment in plaintiff’s favor, noting that the evidence was legally sufficient to support the jury’s findings that defendant departed from good and accepted standards of medical practice, and was also sufficient to support a claim for lack of informed consent. The jury had returned a verdict in the amount of $1,750,000.00, including $250,000.00 for past pain and suffering and $1,500,000.00 for future pain and suffering. The Trial Court had reduced the past pain and suffering award to $225,000.00, a figure which was affirmed by the Second Department. The future pain and suffering award had been reduced to $100,000.00 by the Trial Court, but was reinstated to $200,000.00 by the Second Department. The decision does not address the nature of plaintiff’s injuries. 20. Morales v. Interfaith Med. Ctr., 71 A.D.3d 648, 896 N.Y.S.2d 394 (2d Dep’t 2010). Judgment in plaintiff’s favor affirmed, and past pain and suffering damages were reduced from $3,500,000.00 to $600,000.00. The Court decision gives no detail concerning the issues on appeal. 21. Maing v. Fong, 71 A.D.3d 1077, 900 N.Y.S.2d 82 (2d Dep’t 2010). Damages - Neurologically Impaired Twins

Verdict

Supreme Court

IAS

Second Department

Daniel Past Pain and Suffering

$150K

$150K

$150K Daniel Future Pain and Suffering

$7M

$2.5M

$4M

Eun Sook Past Pain and Suffering

$4.5M

$3M

$3M

Eun Sook Future Pain and Suffering

$6.5M

$2M

$2M

Mother Loss of Services

-0-

$1M

$1M

221


H. Fees and Disbursements

22. Spiegel v. Goldfarb, 66 A.D.3d 873, 889 N.Y.S.2d 45 (2d Dep’t 2009). Attorney’s Fees: Sliding Scale Fee Under Judiciary Law 474-a Applied to Settlement from Laboratory Plaintiff’s counsel sought a one-third fee on that portion of the settlement that was paid by defendant laboratory. The Court held that the sliding scale medical malpractice fee schedule pursuant to Judiciary Law 474-a, rather than a negligence fee schedule, applied, since the laboratory services bore a substantial relationship to the rendition of medical treatment.

222

medical malpractice 2009-2010 update - amazon s3 · the landowner as well as the new york city...

Documents