These are recent case decisions regarding medical malpractice that we think are interesting. The firm of Sholes & Miller is not involved in these matters.
Zomber v Forde, 2022 NY Slip Op 05891 (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 22, 2022) – The decedent was treated with opioids by pain management defendants for facial pain, for 2 ½ years. The decedent was also being treated by a neurologist, who described the decedent as depressed with suicidal ideation. The decedent was found dead at home. The medical examiner determined the death to be accidental, caused by acute intoxication with hydromorphone and gabapentin. The plaintiff brought an action for medical malpractice and wrongful death. Defendants moved for summary judgment. The Appellate Division noted that “the certified death certificate submitted by the defendants in support of their motion was prima facie evidence that the decedent’s death was accidental”, citing Public Health Law 4103(3). However, this evidence is rebuttable; and the plaintiff’s expert’s affidavit was sufficient to raise a triable issue of fact as to whether the decedent died by suicide. Given that the decedent suffered from depression and intractable pain, had access to opioids, and expressed to his treating neurologist that he had suicidal ideation, the plaintiff’s expert’s opinion that the decedent committed suicide was not speculative. As such, the denial of the motion was proper.
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05891.htm
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC
Baltzer v Westchester Med. Ctr., 2022 NY Slip Op 05826 (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 19, 2022) – Between January 6, 2017, and April 7, 2017, the plaintiff was hospitalized at the defendant Hospital, where he allegedly developed severe decubitus ulcers, or pressure sores. After his discharge, he was treated for this condition at several other medical facilities. He returned to defendant Hospital for an unrelated outpatient procedure in September 2018. In May 2019, the plaintiff began a course of treatment for his decubitus ulcers with a private physician, who subsequently referred the patient back to defendant Hospital, where between July 25, 2019, and July 29, 2019, he was evaluated for surgical management of the worsening decubitus ulcer located on his left hip joint. On September 26, 2019, the plaintiff commenced the instant action for medical malpractice. WMC, a public corporation, moved pursuant to CPLR 3211(a)(5) and General Municipal Law § 50-e(1)(a) to dismiss on the grounds, that the complaint was time-barred, and that the plaintiff failed to serve the Hospital, a municipal corporation, with a notice of claim. The plaintiff cross-moved, inter alia, for leave to serve a late notice of claim, and for leave to amend the complaint to include allegations regarding WMC’s treatment of the plaintiff in July 2019. By order dated April 24, 2020, the Supreme Court denied that branch of WMC’s motion to dismiss the causes of action based on treatment rendered during the plaintiff’s admission to WMC between January 6, 2017, and April 7, 2017, as time-barred. * * * The appellate division held that plaintiff failed to raise a triable issue of fact as to the existence of a continuous course of treatment with WMC for the decubitus ulcers. The plaintiff’s only treatment by the Hospital after his April 2017 discharge was either unrelated to the condition at issue or was initiated only upon his current wound specialist’s referral. Under the circumstances, the plaintiff failed to raise a triable issue of fact as to whether treatment was anticipated to continue by the plaintiff or the Hospital after April 2017, or whether there was “a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment”. As such, the Appellate Division reversed and dismissed the claim.
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05826.htm
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC
Fasce v Catskill Regional Med. Ctr., 2022 NY Slip Op 05906 (Supreme Court of the State of New York: Appellate Division, Third Dept. – October 20, 2022) Third Department opinion on SJM’s in medical malpractice case – The complaint alleged failure to request a renal consultation and lactic acid level, and continuing diuretics at 80 mg daily by IV (when the patient’s usual dose was only 40 mg) despite kidney dysfunction and reduced GFR. It was claimed that the defendant hospital was vicariously liable for the negligence of its agents and employees. In opposition to summary judgment, plaintiff claimed the defendant was vicariously liable for a hospitalist who admitted the decedent to the hospital. Plaintiff submitted an affirmation of an internal medicine physician alleging the hospitalist failed to take a proper history, failed to form a differential diagnosis regarding dyspnea, and failed to document a systolic murmur, and also failed to obtain a nephrology consult. The affirmation also criticized a cardiologist. The Third Department noted that the hospitalist and the cardiologist were not mentioned in the complaint or bill of particulars. The cardiac claims, it held, were entirely different from the theories of liability in the pleadings and did not necessarily flow therefrom. however, the Third Department held that the claims against the hospitalist pertaining to his care of the renal condition were not waived, because the underlying theory in the complaint had to do with the decedent’s renal failure. Note: the hospitalist was deposed and admitted at his deposition that he did not take a history pertaining to kidney disease.
Source: Fasce v Catskill Regional Med. Ctr. (2022 NY Slip Op 05906) (nycourts.gov)
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC
Messina v Rivera, 2022 NY Slip Op 05999 (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 26, 2022) Summary Judgment Motion, reliance on referral to specialist, appealability of orders – The plaintiff’s bariatric surgeon referred the plaintiff to a gastroentorologist, for the plaintiff’s reported gastrointestinal issues. When the plaintiff later reported symptoms related to her gastrointestinal issues at an office visit at the bariatric surgeon’s office after the visit where the gastroenterologist ordered the appropriate testing, she was directed to return to the gastroenterologist. Although a referring physician may be held liable for his or her own independent conduct that proximately causes a patient injury, defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them to the extent of dismissing all claims for medical malpractice arising from care by relying on a referral to a specialist, for the plaintiff’s reported gastrointestinal issues and directing her to return to [that specialist] when she reported further symptoms. In opposition, the plaintiffs failed to demonstrate the existence of a triable issue of fact.
Source: Messina v Rivera (2022 NY Slip Op 05999) (nycourts.gov)
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted and edited by Ellen A. Fischer, Sholes & Miller, PLLC
Busch v Sherman, 2022 NY Slip Op 06049, (Supreme Court of the State of New York: Appellate Division, Third Dept. – October 22, 2022) expertise of plaintiff’s expert in opposition to sjm in medical malpractice case, an expert affirmation in opposition to summary judgment motion failed to describe how expert he was familiar with hip replacement surgery and the standards for post-operative care. The Appellate Division held that he fact that the expert was a board-certified orthopedic surgeon was “sufficient to support the inference that his opinion regarding [plaintiff]’s treatment was reliable, and any alleged lack of skill or experience goes to the weight to be given to the opinion, not its admissibility”.
Source: Busch v Sherman (2022 NY Slip Op 06049) (nycourts.gov)
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted and edited by Ellen A. Fischer, Sholes & Miller, PLLC
