These are recent case decisions regarding medical malpractice that we think are interesting. The firm of Sholes & Miller is not involved in these matters.
Balbuenas v New York City Health & Hosp. Corp., 2022 NY Slip Op 05526, (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 5, 2022) – Bellevue Hospital Center, the defendant, is a municipal hospital operated by NYCHHC. Actions against NYCHHC shall be brought in the City of New York, in the county in which the cause of action arose (Uncons. Laws of NY 7401[3]). However, this venue statute is not jurisdictional in nature, and can be waived if a timely demand to change venue is not filed (as here). In determining whether to extend time to file a notice of claim, the court must consider all relevant facts, including whether the municipality had actual knowledge of the essential facts of the claim within 90 days of accrual “or a reasonable time thereafter”. The Court held that in a medical malpractice case, when the medical records themselves detail the procedures and injuries, and suggest the public corporation may be responsible for those injuries, the public corporation will be held to have had such actual knowledge. The alleged malpractice must be “apparent from an independent review of the medical records.” Here, plaintiff failed to establish the medical records on their face made it apparent that defendant caused the relevant injury. The next inquiry was as to “prejudice”; the Court felt the plaintiff met the burden on the motion of providing a “plausible argument supporting a finding of no substantial prejudice.” Respondents’ claim of prejudice was found to be generic and speculative. Next, the court considered the reasonableness of the excuse for the delay in serving a notice of claim. Here, plaintiff established that her emotional and psychological injuries, and the prompt retention of counsel and investigation of the claim after the plaintiff’s cessation of mental health treatment, established such a reasonable excuse for the plaintiff (but not her spouse). Leave to serve a late notice of claim was granted to the injured plaintiff, but not her spouse.
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05526.htm
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC
Coffey v Mansouri, 2022 NY Slip Op 05678 (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 12, 2022) – The Second Department reversed the lower court’s denial of summary judgment in this medical malpractice action. The defendant planned to perform right femoral popliteal bypass surgery. Plaintiff’s expert opined that the defendant departed from accepted standard of care by not choosing a different vessel once the popliteal artery was found to be diseased. “While the expert opined [defendant] should have used a different vessel, he failed to specify which vessel should have been used (see Matter of Joseph v City of New York, 74 AD3d 440). For that same reason, the assertion by the plaintiff’s expert that ‘the vessel should have been bypassed more distally’ was conclusory and speculative.” [N.B. – useful case for purposes of reply on summary judgment motions by defendants].
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05678.htm
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC
Malefakis v Jazrawi, 2022 NY Slip Op 05685 (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 12, 2022) – The Appellate Division addressed the issue of apparent or ostensible agency by estoppel out of the Mduba context, and noted that “In order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent’s skill'” (Keesler v. Small, 140 AD3d 1022, quoting Dragotta v Southampton Hosp., 39 AD3d at 698; see Sampson v. Contillo, 55 AD3d 588, 590).”
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05685.htm
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC
#summary judgment #reply #ostensible agency
