Summary Judgments
Supreme Court, Ulster County
The plaintiff claimed that the decedent had fallen and sustained a fracture during physical therapy at the defendant hospital. This office submitted competent medical opinion of an expert in orthopedic surgery, establishing that the fracture was not acute, but rather had been sustained some weeks before the patient was admitted for physical therapy, along with the expert opinion of a physical therapist and a physician that the care and treatment provided was within the standard of care. Plaintiff opposed the motion with an attorney’s affirmation annexing portions of the medical record and deposition testimony that the patient had claimed to have been dropped during physical therapy. The plaintiff did not provide an expert’s opinion rebutting the claim that the fracture must have happened weeks before the admission.
Supreme Court, Orange County
The plaintiff claimed that this office’s client failed to perform a timely pulmonary evaluation and treatment of respiratory distress, for an elderly patient following laparoscopic appendectomy and resection of a perforated bowel. The Court initially denied the motion for summary judgment. This office moved to reargue, and on reargument, the Court held that summary judgment was warranted, as the plaintiff’s expert’s opinion was conclusory, speculative, did not address specific assertions by the defendant’s experts, and was based on facts which were contradicted by the record.
Supreme Court, Westchester County
The plaintiff claimed that our client, an endocrine surgeon, performed an unnecessary total thyroidectomy without correctly informing her of the true likelihood of malignancy. On the biopsy, the thyroid nodule was benign, and the plaintiff alleged that the total thyroidectomy (and the thyroid hormone replacement that followed) were unnecessary. In support of this office’s motion for summary judgment, we submitted an endocrine surgeon’s affirmation arguing that the surgery was necessary in that there was a 40% chance of malignancy, based upon prior fine needle aspiration biopsy. We argued that it was reasonable to perform a full thyroidectomy rather than a hemithyroidectomy, based on the existence of nodes in both thyroid lobes and the possibility of malignancy. The plaintiff admitted she was advised of a 60% chance that the node would be benign, as well as the consequences of a total thyroidectomy including the need for hormone replacement following the surgery. The Court found that the defense expert’s affirmation met the burden of proof on the motion. In opposition, the plaintiff provided an affirmation of an endocrine surgeon, arguing that the patient had nodules for numerous years, which should have suggested a greater chance that the nodules were benign. Furthermore, the plaintiff’s expert claimed that follow up imaging shortly before surgery suggested that the nodule was no longer discrete, and as such, that the defendant should have recommended further observation, repeat ultrasound, and/or repeat fine needle aspiration rather than surgery. Finally, the plaintiff’s expert argued that total thyroidectomy was not required under guidelines published by the American Thyroid Association. We argued on reply that plaintiff’s expert had made misleading statements regarding the ATA guidelines, particularly where, as here, the patient had expressed a preference for a single procedure, rather than risking the need for two separate procedures if the surgical pathology was malignant. We also argued that the plaintiff’s expert failed to address key aspects of the defendant’s arguments on the motion. The Court agreed with the defense’s arguments on Reply, and held that plaintiff’s expert’s affirmation was speculative, vague, conclusory, and insufficient to rebut the defense showing. Further, the plaintiff did not submit a response to the defendants’ statement of material facts, and as such, those facts are deemed admitted. The Court dismissed the action in its entirety.
Supreme Court, Ulster County
The plaintiff alleged negligence and medical malpractice after a 90-year-old female inpatient was found on the floor. The patient evidently sustained a slightly impacted subcapital fracture of the left hip. The court held that the plaintiff’s allegations against the defendant invoked “medical determination” and sounded in medical malpractice. Accordingly, the court found that those claims were time barred pursuant to CPLR 214-a. The plaintiff’s wrongful death claim was similarly time-barred. The court held that with respect to any potential “separate” cause of action in negligence, that the defendant hospital met its “heavy” burden of establishing entitlement to summary judgment through the deposition testimony of the parties and its nursing expert affidavit. All appropriate fall protocols were in place. The court found that the plaintiff failed to rebut the defendant’s burden.
Supreme Court, Westchester County
The plaintiffs alleged that the hospital was supposedly negligent in failing to recognize that an 82-year-old female plaintiff’s medical condition placed her at a heightened risk for falls upon standing, sitting, and ambulating. The plaintiffs similarly alleged that the defendant hospital failed to follow protocol to protect the plaintiff from falling, failed to assist the plaintiff to and from the bathroom, and was negligent in failing to assist the plaintiff while in the bathroom. The court agreed with the hospital’s nursing expert that the hospital’s staff was not negligent in the care and treatment of the plaintiff, nor did the staff depart from good and accepted standards of nursing care in their treatment of the plaintiff. The court agreed with the hospital’s expert that the applicable standard of care did not require staff to remain with the plaintiff in the bathroom. There was nothing in the hospital’s chart suggesting that the plaintiff would be unable to use the bathroom on her own. The court agreed that the hospital provided a safe and proper environment for the plaintiff and appropriate fall protocols were in place.
Supreme Court, Rockland County
Plaintiff presented with neurological symptoms to the emergency department. Defendant, who was the on-call neurologist, did not come to the hospital to evaluate the patient, and did not order tPA. The patient was discharged with instructions to follow up with a neurologist. Ellen A. Fischer successfully established prima facie right to dismissal, based on a neurologist’s opinion that the neurologist’s care was within the standard of accepted medical practice, and that the patient’s subsequent alleged injuries could not have been avoided. The Court agreed with the defense that the plaintiff’s expert, a cardiologist, lacked the expertise required to render an opinion with regard to the standard of care for a neurologist. The Court also agreed that the cardiologist’s opinion was entirely conclusory and failed to address specific, key arguments raised in the defense expert’s affirmation. The case against the neurologist was dismissed in its entirety.
