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Tag Archives: medical malpractice

Bongiovanni v Cavagnuolo, ___ AD 3d ___, 2016 NY Slip Op 00638

In a malpractice action an opinion as to causation may be rendered by an expert in a field related to the injury, even though the underlying claim of negligence relates to a specialist in a different field. In this malpractice action against a chiropractor, therefore, opinions as to the causation of plaintiff’s disk injuries could be received from non-chiropractors whose expertise was in orthopedics and radiology. These opinions related to causation only, which was within the experts’ fields of expertise, and not to the standard of care applicable to chiropractors.

One of the hallmarks of a professional negligence case is that the profession itself is generally allowed to set the standard of good and accepted practice. Negligent care, or malpractice, is a departure from that standard. It follows that expert testimony as to whether the care at issue departed from that standard must come from those whose expertise is established either by their being practitioners in the same field or through some other combination of training, skill or experience. The principle also extends to specialists: Expert opinion must come from specialists in the same field or those who can otherwise establish the reliability of their opinions.

In a chiropractic malpractice case such as this, therefore, whether the defendant departed from the standard of good and accepted practice would normally require expert testimony from chiropractors. Normally, an orthopedic surgeon could not testify as to whether a given chiropractic treatment deviated from the chiropractic standard.

There is, of course, a second issue: whether or not the acts of malpractice were the proximate cause of the plaintiff’s injuries. Here, expert testimony need not necessarily come from experts in the same field of treatment, but may come from anyone whose expertise as to the nature of the injuries would justify an opinion as to their origin and causation.

The plaintiff’s claim here was that the defendant chiropractor engaged in improper and unduly forceful manipulations of her thoracic spine, resulting in trauma to a cervical disk, requiring a discectomy and fusion surgery.

Defendant moved for summary judgment both as to a deviation from acceptable standards of care and as to causation. As to deviation, defendant offered his own affidavit, to the effect that there was no deviation from accepted standards. This is of course permitted.

Defendant then offered the affidavits of an orthopedic surgeon and a radiologist. Both of these were restricted to the issue of causation, saying nothing about the standard of chiropractic care. Both concluded that the injuries were degenerative, pre-existing the treatment at issue. In opposition, the plaintiff offered the affidavit of a radiologist, who also restricted his opinion to causation, finding that the injury was caused by a significant amount of force, consistent with the plaintiff’s claims.

Supreme Court held that the opinions of defendant’s experts were inadmissible, as the experts had not established a knowledge of chiropractic treatment. The court held that the defendant had accordingly not sustained his initial burden of proof on the motion, and denied it.

The Appellate Division affirmed, but on a different ground. The opinions of the experts, being limited to the causation of the plaintiff’s disk injuries, were squarely within their areas of expertise. They were therefore admissible on the motion. The disagreement between them raised a triable issue of fact, and that was the proper rationale for denial of the motion.

As to the issue of deviation from the standard of care, the Appellate Division held that the defendant’s affidavit failed to establish the applicable standard of care, rendering his opinion as to the lack of any deviation to be conclusory. He therefore failed to sustain his initial burden on this score, and the court did not consider the plaintiff’s opposition.

Tracy v Vassar Bros. Hosp.,

130 A.D.3d 713, 13 N.Y.S.3d 226 [2d Dept., 2015]

This is another of the many cases about the distinction between ordinary negligence and medical malpractice, with their differing limitations periods. Ordinary negligence claims get a 3-year period, but med mal claims get only 2 ½, and so many plaintiffs with claims falling on the edge between the two seem to sue right in that 6-month gap, giving folks like me something to write about.

Here, the main actor was a surgeon named Panos, who operated on the plaintiff on February 5, 2009, at the defendant hospital. Plaintiff’s lawsuit was commenced on January 26, 2012, well beyond 2 ½ years and just before the expiration of 3 years. The hospital, of course, moved to dismiss on limitations grounds. Supreme Court denied the motion, holding that some of plaintiff’s claims sounded in ordinary negligence and were timely. As to the others, Supreme Court denied the motion as premature in advance of disclosure on the plaintiff’s claim to an equitable estoppel.

The plaintiff’s claim of estoppel was based on the idea that the hospital knew of Panos’ negligence, and that its failure to stop him constituted a fraud on the public. The invocation of the word “fraud,” however, is not sufficient to justify an equitable estoppel against the limitations defense. In this context, the fraud must in some way have concealed the malpractice so as to prevent the plaintiff from bringing suit. Therefore, the medical malpractice claims against the hospital should have been dismissed. So far, there is nothing remarkable here.

It is the claims which the court sustained as ordinary negligence which I find interesting. The cases have acknowledged the difficulty in distinguishing between malpractice and ordinary negligence, especially in the hospital context. To say that the distinction lies in whether the hospital’s negligence was in fulfilling some duty other than treating the patient does not always make the question any clearer (see, Weiner v Lenox Hill Hospital, 88 NY2d 784, 650 N.Y.S.2d 629 [1996]). “Here, the allegations in the complaint pertaining to the number of surgeries Panos was scheduling for any given day, the allegations that Vassar failed to establish procedures regarding the number of surgeries that could be scheduled for a given day, and the allegations that Vassar failed to investigate or respond to warnings and complaints from its employees regarding Panos’s practices generally, all sound in ordinary negligence rather than medical malpractice”. The court found that these allegations do not involve medical judgment or analysis regarding the plaintiff’s treatment.

Walton v Strong Mem. Hosp.

___ NY3d ___, 2015 NY Slip Op 04786 [2015]

The Court of Appeals has just issued this significant opinion reviewing its major precedents concerning the foreign-object rule in medical malpractice cases, arriving at the factors determining when a given object may qualify for the discovery rule codified in CPLR 214-a, and when it must be excluded as a “fixation device.”

Recall that where a med mal action is based on the discovery of a foreign object in the patient’s body, the statute allows for an extension of the limitations period, for a year after the discovery. Excepted from consideration as “foreign objects” are chemical compounds, fixation devices, and prosthetic aids or devices. Defendants will argue for a broad definition of these terms, thus narrowing the category of foreign objects subject to the discovery rule. Plaintiffs, of course, take the opposite tack.

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Martens v St. Luke’s-Roosevelt Hosp. Ctr.,

___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 04199 [1st Dept., 2015]

In this medical malpractice case, the defendant moved for summary judgment on limitations grounds, and the plaintiff opposed, claiming a continuous course of treatment.

In June of 2002, the defendant Dr. Wu diagnosed certain growths as fibroids. Between then and September, 2009, the plaintiff and Dr. Wu agreed to monitor the fibroids instead of removing them. When the plaintiff returned for follow-up visits, Dr. Wu asked about the fibroids, monitoring them through the use of ultrasound and physical examinations. When the plaintiff eventually decided to remove the fibroids through surgery, she consulted with Dr. Wu. The plaintiff did not, however, return for follow-up visits each year, due to work and travel.

Unfortunately, the growths were cancerous tumors instead of fibroids, and plaintiff sued for the misdiagnosis.

Dr. Wu’s motion was to dismiss so much of plaintiff’s claim as concerned treatment earlier than December 4, 2007. The plaintiff’s showing of the facts recited, however, was sufficient to raise a triable issue of fact as to whether there had been a continuous course of treatment running from the initial diagnosis of fibroids, and so the motion was properly denied.

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