These are recent case decisions regarding medical malpractice that we think are interesting. The firm of Sholes & Miller is not involved in these matters.
Malpractice v Ordinary Negligence; New Theory in Opposition to Summary Judgment; Continuous Treatment in the Second Department
Rojas v. Tandon (2nd Dept 8/17/22) – In March 1999, then newborn plaintiff was dropped in the delivery room shortly after her birth. She commenced an action for damages in January 2020. Defendant moved to dismiss as time-barred, since the infancy toll (CPLR 208) is limited to ten years for medical malpractice claims. Plaintiff argued that the case sounded in ordinary negligence. The Supreme Court (Judge Genine D. Edwards, Kings County) denied the motion, agreeing the claims were for ordinary negligence, and as such the action was timely commenced prior to the plaintiff’s 21st birthday. The Second Department reversed, holding that “[i]n determining whether conduct should be deemed medical malpractice or ordinary negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached (cit. om.). A negligent act or omission by a health care provider that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient constitutes medical malpractice (cit. om.).” The conduct at issue derived from the duty owed to plaintiff as a result of the patient-physician relationship and was substantially related to plaintiff’s medical treatment. As such, the toll for infancy had expired.
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_04989.htm
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC
Walker v. Jamaica Hospital Medical Center (2nd Dept. 8/17/2022) – Summary judgment in favor of defendant hospital reversed. The case involved alleged failure to administer tPA. The Supreme Court (Judge Peter J. O’Donoghue, Queens County) found the opposition raised new theories of liability for the first time in opposition to defendants’ motions. “Although the plaintiffs’ theory regarding the administration of aspirin was not specifically alleged in the complaint or bill of particulars, this theory was referred to by the plaintiffs’ counsel when deposing [the physician defendant], and thus, was appropriately raised in opposition…”. Furthermore, the hospital defendant improperly relied on the affirmation contained in a codefendant physician’s expert affidavit, despite the fact that the expert did not address the allegations specific to the hospital defendants. N.B. – Beware! Where there are questions about a particular theory at deposition, even if it is not in the bill of particulars, the
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_04996.htm
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC
Weinstein v. Gerwitz (2nd Dept. 8/17/2022) – New case on continuous treatment.
“‘Under the continuous treatment doctrine, the limitations period does not begin to run until the end of the course of treatment if three conditions are met: (1) the patient continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period; (2) the course of treatment was for the same conditions or complaints underlying the plaintiff’s medical malpractice claim; and (3) the treatment is continuous'”. “The critical inquiry is not whether the defendant failed to make a diagnosis or undertake a course of treatment during the period of limitation, but whether the plaintiff continued to seek treatment for the same or related conditions giving rise to his or her claim of malpractice, during that period (cit. om.)” As such, “a defendant cannot defeat the application of the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, if the defendant treated the plaintiff continuously over the relevant time period for symptoms that are ultimately traced to that condition” (cit om.).” In this matter, the patient was seen for perimenopausal and gynecological conditions, and no complaints were made or treatment sought for symptoms related to osteoporosis. “Since there was no actual course of treatment for osteoporosis or for symptoms related to osteoporosis, there could be no resultant continuous treatment tolling the statute of limitations.” Plaintiff attempted to argue that due to her atrophic vaginitis and post-menopausal bleeding, a bone density test should have been undertaken which would have revealed the osteoporosis. However, there was no medical evidence supporting that there is causation or correlation between atrophic vaginitis/post menopausal bleeding, and osteoporosis. The fact that all three conditions are listed on a “Sono/Bone Density Progress Note Form”, did not suffice to establish such a link without expert opinion. The fact that the progress notes included sections for “bone density” and the word “no” was entered beside it by the practitioner, does not show that the practitioner was monitoring the patient’s bone health. The references to Vitamin D and calcium supplements, furthermore, did not establish a course of treatment for later-diagnosed osteoporosis. The fact that the medical records reference the negative family history for osteoporosis, also does not establish continuous treatment for osteoporosis. The mere treatment for post-menopausal symptoms does not establish treatment of osteoporosis. There is an extensive dissent disagreeing with these contentions by Judge Duffy.
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_04997.htm
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC
