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April 29, 2022
A Note from Chris Potenza

We are extremely excited and proud to announce that attorney Stephen M. Sorrels has joined our Medical Malpractice & Nursing Home Defense Team. While Steve worked with us early in his career as an associate, we welcome him back to Hurwitz & Fine as a Member in our Buffalo office bringing over two decades of experience in the areas of medical malpractice, nursing home litigation, products liability, municipal law, transportation negligence, and premises liability.

We also proudly welcome Tom Narducci as an Associate Attorney in our Melville office, practicing in the areas of premises liability, transportation negligence, and NYS Labor Law and construction accident litigation.

The Appellate Courts were once again very busy, and we have highlighted the most interesting decisions below:
  • Second Circuit Court of Appeals dismissed a claim against a medical director of a drug treatment center who had no interaction with the decedent or supervision of her treatment, and therefore neither owed nor breached a duty of care; 
  • First Department held that medications administered in contravention of a DNR can support a claim for medical malpractice despite a claim for “wrongful life” not being recognized in New York;
  • Second Department rejected a plaintiff’s expert affirmation as he was not authorized to practice medicine in the State of New York;
  • Second Department found issues of fact regarding whether emergency room staff were independent contractors based on the defendant medical staffing company’s involvement in their training, improvement activities, and pay system;
  • Second Department holds that the failure to disclose fact that plaintiff’s expert witness had previously examined plaintiff ten years prior warrants mistrial but not judgment as matter of law to defendant;
  • Second Department upholds summary judgment to defendant where plaintiff arrived at the hospital too late for specific therapies to be administered, negating her cause of action for failure to timely diagnose; 
  • Second Department find that an admission agreement with forum selection clause is unenforceable for failure to establish signatory had authority to execute the agreement;
  • Third Department holds that the improper release of psychiatric records does not constitute medical malpractice where the conduct did not occur in the course of administering medical treatment;
  • Third Department finds question of fact as to whether the collaborating physician and majority owner of a midwifery practice owed plaintiff a duty of care or was otherwise vicariously liable.
As a reminder, we are pleased to be offering in-house (webinar) training on all the new legislative and regulatory changes impacting the nursing home and long-term care communities, as well as the impact of Covid-19 immunity statutes on personal injury claims.  Please contact us directly to schedule a one-hour interactive training session.  Click on the links below for printable and downloadable resource guides on these topics as well:
Latest News & Developments
New York State Staffing Requirements Go Into Effect 
 As of April 1, 2022, Gov. Kathy Hochul has lifted the pause on the enforcement of New York Public Health Law §2895-b, which requires that nursing home staffing standards include 3.5 hours of nursing care per resident per day, and of those hours, at least 2.2 must be provided by a nurse’s aide or a certified nurse’s aide, and 1.1 must be provide by a licensed practical nurse or a registered nurse.  While this move has been applauded by healthcare workers’ unions and consumer advocacy groups, it has been criticized by some for being difficult to comply with, particularly in a tight labor market.  Some have predicted that this will lead some facilities limiting patient admissions in order to maintain complying ratios.  For example, James W. Clyne, Jr., CEO of Leading Age New York, said in a statement that,

“By enacting a law that is impossible to comply with, the governor and the Legislature have made a false promise to our nursing home residents . . . [t]his mandate will only drain nursing homes of the very resources they need to recruit and retain more staff, by forcing them to pay heavy penalties due to conditions beyond their control.” 

The law was originally enacted in January but its implementation was paused due to the ongoing Covid-19 pandemic.   
 

Bill Reviewing New York Pandemic Nursing Home Policy Advances 
There is a bill advancing to create an independent inquiry into nursing home policy leading up to and during the pandemic. The commission would investigate the 15,000 nursing home deaths in the state and determine whether those deaths were undercounted. It would also look into an audit from the State’s Comptroller’s office that claimed the New York State Department of Public Health was unprepared to respond to the COVID-19 Pandemic.

Biden Administration Takes Action to Improve Competition, Transparency, and Quality for Hospitals and Nursing Homes 
CMS just published databases summarizing ownership changes in Medicare-enrolled hospitals and skilled nursing facilities from 2016-2022, as well as their payment policies and rates. The aim is to improve transparency, safety, accountability and quality in healthcare. The data is intended to enable researchers, enforcement officials and the public to analyze trends and examine the relationship between ownership of healthcare facilities and variables such as costs and outcomes on patients. CMS noted that making change of ownership information public will permit researchers to identify trends and issues related to changes of ownership and consolidation, particularly in relation to healthcare prices, accessibility and quality.

Nursing Home Minimum Staffing Laws Are Colliding With Spiking Worker Costs
State minimum staffing laws, especially in New York, are colliding with spiking worker and temp agency costs, with some facilities forced to continue or increase the use of expensive temporary staff to meet state requirements.  The average cost for a Medicaid resident is $265 per day, but the average reimbursement in New York is $211 per day. Meanwhile, agencies in some cases are charging up to $70 an hour for certified nursing assistants (CNAs).

Former Nurse Found Criminally Responsible in Accidental Medication Error
A Tennessee jury has found a nurse guilty of gross neglect of an impaired adult and criminally negligent homicide for a fatal drug error that occurred in 2017, in a case that has drawn concern from nursing advocacy groups nationally.  The nurse who made the fatal medical error resulting in the death of an elderly patient, now faces six years in prison for neglect and two more for negligent homicide.   
 
Not surprisingly, many medical professionals have watched this case with great concern, as it could seemingly set the stage for criminalizing medical mistakes across the country.  This comes at a time when nurses and medical professionals are under increasing pressure for patient care and record keeping, and many are concerned that this may discourage some from entering the profession altogether, or negatively impact patient safety culture by discouraging the reporting of medical mistakes.  Although no similar cases have immerged in New York State, we will continue to monitor for future developments. 
Analysis of Recent Court Decisions
March 21, 2022                 Buchanan v. Frederick R. Hesse
United States Court of Appeals, Second Circuit

Case dismissed where medical director had no interaction with decedent or supervision of her treatment, and therefore neither owed nor breached his duty.

Decedent’s parents brought this action against the medical director of a residential drug treatment facility on behalf of their daughter who died while undergoing substance abuse treatment. Defendant made the requisite showing that he did not depart from good and accepted medical practice, had never had any contact or communication with the decedent and that she was not his patient. Plaintiffs argued – without evidence - that even so, he failed to oversee the medical services provided at the facility and thus failed to meet his responsibilities as medical director. The District Court found that it was the responsibility of the nursing department, not defendant medical director, to ensure that emergency equipment was functioning properly and there was no record evidence that defendant owed or breached a duty to the decedent. As such, it was appropriate for the District Court to dismiss both the medical malpractice and negligence claims.

March 31, 2022                 Greenberg v. Montefiore New Rochelle Hospital et al.
Appellate Division, First Department

Medications administered in contravention of a DNR can support a claim for medical malpractice despite a claim for “wrongful life” not being recognized in New York.

Decedent – who was suffering from advanced Alzheimer’s and was unable to recognize his family or communicate in any meaningful way – had previously executed a healthcare proxy and living will which included a DNR if he became ill to such a degree. After a fall at his residential facility, he was taken to defendant’s hospital where staff confirmed his DNR which the facility and with his wife. Nevertheless, defendants ordered the administration of various medications and diagnostic tests, which prolonged decedent’s life by around 30 days. Defendants argued that the allegations in the complaint sounded in a claim for “wrongful life” which is disallowed in New York. The Appellate Court, however, found that plaintiff sought damages not for “wrongful life” but for pain and suffering due to medical malpractice in that had decedent not received treatment contrary to decedent's wishes and his health care agents' instructions, he likely would have died from sepsis within a few days. Instead, decedent endured pain and suffering over a period of approximately 30 days.  The Appellate Court found that the allegations support a claim that defendants breached the standard of care by administering treatments without consent and therefore reversed the lower court’s decision dismissing the complaint for failure to state of cause of action.

March 16, 2022                 Valentine v. Philip Webber et al.
Appellate Division, Second Department

Plaintiff’s expert affirmation not considered as he was not authorized by law to practice medicine in the State of New York.
 
Plaintiff underwent three surgical procedures performed by defendant due to complaints of abdominal bloating, pain, and difficulty swallowing related to her GERD condition. Plaintiff subsequently brought this action for medical malpractice, and the trial court awarded summary judgment in Defendant’s favor. The Appellate Court affirmed the lower court’s ruling and determined that plaintiff failed to raise a triable issue of fact as her expert witness was not authorized by law to practice medicine in New York State. Even if his affirmation could be considered, it was conclusory, without basis in the record, and failed to address the specific assertions of defendant’s expert.

 March 23, 2022                                Perez v. NES Medical Services of New York, PC
Appellate Division, Second Department 

Triable issues of fact remained regarding whether emergency room staff were independent contractors based on the defendant medical staffing company’s involvement in their training, improvement activities, and pay system.
 
Plaintiff presented to the emergency room with complaints of back pain, and subsequently alleged the physicians who treated him failed to timely diagnose and treat a spinal epidural abscess, causing injuries. Defendant – which contracted with the hospital to provide emergency room staff – was granted summary judgment and plaintiff appealed. The Appellate Court reversed the judgment, finding that there were triable issues of fact as to whether the physicians who treated plaintiff were independent contractors – particularly regarding defendant’s involvement in the training of the physicians with whom it contracted and the extent of defendant’s obligation to participate in quality assurance and peer review activities and implement quality improvement plans. Defendant additionally failed to submit any evidence regarding how its contracted physicians were paid.

March 30, 2022                 Stolz v. Manhattan Eye, Ear & Throat Hospital
Appellate Division, Second Department

The failure to disclose fact that plaintiff’s expert witness had previously examined plaintiff ten years prior warrants mistrial but not judgment as matter of law to defendant. 
 
During the course of a trial for medical malpractice arising from prolonged use of eye drops, defendant discovered that plaintiff’s expert witness had examined plaintiff more than a decade prior and had generated reports as a result of that examination, which were never provided to defendant. Defendant consequently moved to strike the expert’s testimony, for a mistrial, and to dismiss the complaint. The trial court found that the records should have been produced in discovery and both struck the expert’s testimony and granted a mistrial. Defendant was however denied judgment as a matter of law. The Appellate Court found that the lower court had properly denied defendant’s application for judgment as a matter of law, finding that there was a rational process that could lead a jury to find in favor of the plaintiff, even in the absence of the stricken testimony.

March 30, 2022                 Townsend v. Alex Vaisman, et al.
Appellate Division, Second Department
Summary judgment granted where plaintiff arrived at the hospital too late for specific therapies to be administered, negating her cause of action for failure to timely diagnose.


Plaintiff alleged that defendants failed initially to diagnose a stroke where she exhibited no stroke symptoms or neurological deficits. Defendants moved for summary judgment and submitted the affirmation of their expert witness who opined that, even if a stroke had been identified when plaintiff initially presented to the hospital, the outcome would have been the same as too much time had passed to administer stroke-specific therapies. Plaintiff failed to raise a triable issue of fact in opposition and crucially, did not dispute that it was too late to treat her by the time she initially reached the hospital. As such, the Appellate Court upheld the trial court decision granting defendants’ motion for summary judgment.

April 27, 2022                     Sherrod v. Mount Sinai St. Luke’s, et al.
Appellate Division, Second Department
Admission agreement with forum selection clause unenforceable for failure to establish signatory had authority to execute the agreement.

Defendant moved to change venue from Bronx County to Westchester County based on a venue selection clause contained in an admission agreement allegedly signed by decedent’s wife. Defendant submitted the agreement but did not provide an affidavit from anyone who signed it, or who was present when it was signed. There was no evidence that decedent was present when the agreement was signed or that he was aware of its existence. Defendants’ motion was granted, and plaintiff appealed on the grounds that the court should not have bound them to a clause in an agreement that was not signed by the decedent or enforceable against him. The Appellate Court found that defendant failed to establish that decedent’s wife was properly designated to execute the agreement on his behalf, and there were no admissible records establishing that decedent lacked the capacity to make a designation. As such, the Appellate Court reversed the lower court’s order.

March 31, 2022                 Bonner v. Patricia Lynott
Appellate Division, Third Department

Improper release of psychiatric records did not constitute medical malpractice where the conduct did not occur in the course of administering medical treatment.
 
Plaintiff was struggling with her veterinary residency when her professor reported erratic and concerning behavior to a school psychologist. That psychologist then contacted plaintiff’s treating psychiatrist – defendant – who informed him that she was a deteriorating, was “a mess,” but had no suicidal behavior or ideation. Plaintiff’s appointment was not renewed by the university the following year and plaintiff commenced this action for medical malpractice and breach of physician-patient confidentiality. The Trial Court granted summary judgment in favor of defendant, finding that the information disclosed was not confidential and that plaintiff failed to raise a triable issue of fact as to whether she sustained any damages as a result of the alleged breach. The Appellate Court however found that the information disclosed was confidential as plaintiff’s professors were not aware that her mental health condition was deteriorating. Furthermore, plaintiff articulated damages including mental distress and emotional harm related to the disclosure of her confidential medical information. Despite that, the Appellate Court ultimately found that plaintiff had no cause of action for medical malpractice as the challenged conduct did not constitute medical treatment.

April 7, 2022                       Liquori v. Lawrence Dolkart et al.
Appellate Division, Third Department

Question of fact as to whether the collaborating physician and majority owner of a midwifery practice owed her a duty of care, or was otherwise vicariously liable, precluding judgment as a matter of law.
 
Plaintiff raised this action for medical malpractice, stating she should have been prescribed progesterone in light of her four prior preterm pregnancies.  The moving defendant,  the collaborating physician and majority owner of a midwifery practice, claimed not to owe her a general duty of care besides the single isolated ultrasound he performed.  The Appellate Court, however, found that defendant was the owner and a collaborating physician of the practice that plaintiff attended, and she had been referred to him for collaborative care as she was considered a high-risk patient, which raised triable questions of fact. Additionally, there were questions of fact as to whether defendant was vicariously liable for any negligence by his practice in the course of plaintiff’s care. As such, The Appellate Court agree with the lower court’s ruling that precluded judgment as a matter of law.
Hurwitz & Fine's Medical & Nursing Home Defense Team
 
With over 50 years of combined experience in defending doctors, nurses, and medical professionals, as well as hospitals, institutions, and nursing homes, the Hurwitz & Fine Medical & Nursing Home Defense Team is here for you.  

Our defense team has the trial results and experience to vigorously defend our caregivers facing blame in the most trying of circumstances.  Patrick B. Curran has dedicated his 40-year legal career to defending medical professionals and nursing homes from claims of negligence and malpractice.  He has also served as an adjunct faculty member at the University at Buffalo School of Law, and lecturer for the University at Buffalo School of Medicine and School of Nursing, as well as for other health care professional and community groups.  V. Christopher Potenza is a seasoned and trial-tested litigator, having obtained defense verdicts across New York State on complex matters. He has substantial experience defending claims at the federal, state, and appellate levels.  Kara M. Eyre has 10 years’ experience defending physicians, hospitals, and medical institutions in complex matters involving medical malpractice and nursing home negligence through all phases of litigation, including trial and appeal.  Stephanie L. McCance offers her international legal experience with strong research, analysis and advocacy skills, with extensive involvement in complex litigation, including all phases of discovery, depositions, motions, and appeals.


As a public service, we are pleased to present this newsletter providing the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities.  In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.
 
If you know of others who may wish to subscribe to these legal alerts, please feel free to forward it. If you wish to subscribe or unsubscribe, please do so at the bottom of this newsletter.
Your Medical Malpractice & Nursing Home Defense Team
is here to answer your questions:

V. Christopher Potenza, Esq. (vcp@hurwitzfine.com)
Patrick B. Curran, Esq. (pbc@hurwitzfine.com)

Stephen M. Sorrels, Esq. (sms@hurwitzfine.com
Kara M. Eyre, Esq. (kme@hurwitzfine.com
Stephanie L. McCance, Esq. (slm@hurwitzfine.com)
Read Our Additional Newsletters
Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Contact Dan Kohane at ddk@hurwitzfine.com  to subscribe.

Employment & Business Litigation Pointers:  Employment & Business Litigation Pointers aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments.  Contact Joe Brown at jsb@hurwitzfine.com to subscribe.

Labor Law Pointers:  Hurwitz & Fine, P.C.’s Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law and construction accident case decided during the month by the Appellate Courts. Contact Dave Adams at dra@hurwitzfine.com to subscribe.

Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at jeb@hurwitzfine.com  to subscribe.

Products Liability Pointers:   This monthly
newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at vcp@hurwitzfine.com to subscribe. 
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