August 8, 2016 | Vol. 66

MUST READS
(4 summaries)
NOTEWORTHY IF YOU MUST READ

Med Mal   Accepted Practice   Causation   Loss of Chance   Expert Aff   Duty  

Second Deptartment

In an action where plaintiff’s decedent developed metastatic breast cancer, the Second Department spends 11 pages evaluating the required detail in expert affirmations to eliminate or establish questions of fact on departure, causation, and loss of chance of a better outcome (not just a cure). The decision is an excellent primer for how to approach summary judgment motions in medical malpractice cases.

The OB/GYN defendant met his initial burden of showing that he did not depart from accepted practice by his expert’s opinion that ordering a sonogram and cytology study of the discharge from the left breast was within accepted practice. In response, plaintiff’s expert raised a question of fact by opining that discharge from the left breast after she stopped breast feeding was a sign of malignancy warranting a mammogram instead of a sonogram because no lumps or lesions could be palpated which meant that the lesions at that time were smaller than 1 cm and a mammogram is capable of detecting breast tumors as small as 0.2 cm.

The OB/GYN also met his initial burden on causation by his expert’s opinion that the negative sonogram and cytology results meant that the cancer was not present at that time, or if it was, it would have been at the same stage as when later diagnosed and the treatment and prognosis would have been the same. Plaintiff’s expert raised a question of fact by opining that the decedent’s tumor was fast growing with a short doubling time, that delays in diagnosis with such fast growing tumors have a significantly negative impact on the patient’s outcome, that when the OB/GYN ordered the sonogram the cancer was a most stage 1 or 2, that the delay caused the decedent to lose the chance for a better outcome including elimination of the cancer through surgery and chemotherapy, and that early diagnosis would have positively impacted her outcome based on her positive response to chemotherapy after she was eventually diagnosed. Plaintiff’s expert opined that it was “medically more probable than not” that had treatment begun 7 months earlier she “would have been cured and the immense suffering of the continuing cancer therapy and eventual progression of the cancer would have been avoided.” Such opinion is sufficient even if the expert cannot quantify the degree to which the omission decreased the plaintiff’s chance of a better outcome.

Radiology center granted summary judgment on ground that its duty was limited to take and interpret the sonogram, which was negative, and it noted on its report that the “diagnostic value of the sonogram may be limited for the detection of a solid mass.” Neyman v Doshi Diagnostic Imaging Servs., P.C.


MVA   Admissibility   Pain/Suffering   Loss of Services   Materially Deviates  

Second Deptartment

In a damage only trial the lower court precluded the defendant from cross-examining the injured plaintiff regarding the fact that he worked for the law firm representing him and his wife and any questions regarding the fact that they referred him to specific doctors, which the lower court found was part of the defendants attempt to prove that he was “working the system.” The Appellate Division found that this was an appropriate use of the trial court’s discretion in limiting cross examination and upheld as not materially deviating the award of $150,000/50,000 past/future pain/suffering, $505,050 future medical expenses, and $100,000 loss of services. Sehgal v www.nyairportsbus.com, Inc.


Untimely   Reasonable Excuse   CPLR § 2004  

Second Deptartment

The lower court improvidently exercised its discretion in denying plaintiff’s motion to extend his time to submit opposition to the defendant’s motion to dismiss where the defendant had stipulated to extend the time but the court rejected the stipulation, the plaintiff moved to extend the time within 4 days of the stipulation being rejected, and the defendant did not oppose the plaintiff’s motion. CPLR §2004 allows the court to extend time before or after the expiration of the time fixed unless expressly prohibited by law. Appeal from order granting dismissal of the action was dismissed as no appeal lies from an order entered upon default but the case was remanded for a decision on the merits. Calderone v Molloy Coll.


Med Mal   Pain/Suffering   Wrongful Death   Late Notice of Claim   Actual Knowledge   Reasonable Excuse   Prejudice  

Second Deptartment

Grant of leave to deem Notice of Claim for pain/suffering claim filed 9 months after plaintiff’s decedent’s death reversed where plaintiff failed to show that defendant had actual knowledge of the essential elements of the cause of action within 90 days and 9-month delay was too long to be considered within a reasonable time after the 90 days. Even though NYCHH did not argue prejudice, plaintiff failed to show a reasonable excuse and in balancing the factors the lower court should have denied the application. Matter of Shun Mao Ma v New York City Health & Hosps. Corp.

NOTEWORTHY
(15 summaries)
MUST READS IF YOU MUST READ

Med Mal   Vacate Default   Reasonable Excuse   Meritorious Action   Conclusory   Expert Aff  

Second Deptartment

Plaintiff’s motion to vacate order dismissing the Complaint for failure to appear at a compliance conference in case involving claims of malpractice during arthroscopic knee surgery denied where plaintiff’s expert’s affirmation was conclusory and did not establish a meritorious defense. Plaintiff alleged that her attorney’s disbarment for neglecting legal matters represented a reasonable excuse. Defendant only argued meritorious action. Addison v Avshalumov


Labor Law §240   Labor Law §200   Sole Cause   Control   Indemnity  

Second Deptartment

Plaintiff made out prima facie entitlement to summary judgment on Labor Law §240(1) where scaffold he was instructed to use wobbled and wheel went into a hole in the floor where tiles were being removed for electrical work, but defendant raised an issue of fact that the plaintiff was the sole proximate cause of the accident because he was using the scaffold in an unsafe and prohibited manner. [The court does not give the details of the manner in which the scaffold was being used].

Construction manager denied summary judgment on Labor Law §200 and common law negligence where the claim arose out of the “means and methods” of the work and testimony showed that it was responsible for job coordination and safety supervision, had a superintendent at the worksite daily, had authority to stop work for safety concerns, regulated which workers and equipment were allowed in which areas, and held weekly safety meetings with every subcontractor at which it gave directions to the subcontractors’ supervisors. Summary judgment denied on third-party indemnity claim because there was a question of fact regarding whether the accident arose out of the work to be performed pursuant to the contract indemnification clause. Caban v Plaza Constr. Corp.


Med Mal   Statute of Limitations  

Second Deptartment

Hospital granted summary judgment on statute of limitations where claims that hospital failed to properly assess the plaintiff’s decedent’s supervision needs, where decedent fell out of bed, were “’an integral part of the process of rendering medical treatment’ and diagnosis,” for which the shorter medical malpractice statute of limitations applied. Bell v WSNCHS N., Inc.


MVA   Prior Written Notice   Create Condition   Intervening Cause  

Second Deptartment

County denied summary judgment where it shoveled snow onto sidewalk obstructing the sidewalk so that plaintiff had to walk in the street where she was struck by a car. While the county did not have prior written notice, it failed to meet its burden of showing that it did not create the condition and since its making the sidewalk impassable would naturally cause people to walk in the street, it cannot be considered an intervening cause. Piazza v Volpe


Med Mal   Set Aside Verdict  

Second Deptartment

Plaintiff’s motion to set aside defense verdict, which answered a special verdict question that plaintiff did not experience “intraoperative conscious awareness” during surgery, denied as the jury could reach the verdict on a fair interpretation of the evidence. Where both parties present experts, it is up to the jury to determine their credibility. Marmo v Terracciano


Premises Liab   Assumption of Risk   Open/Obvious   Indemnity  

Second Deptartment

Father who volunteered at his son’s baseball game at a parochial school field that he had been at several times before over several years was deemed to have assumed the risk of a white 12” drain cover which starkly contrasted with the green grass where he fell while running between bases. School granted summary judgment on contractual indemnity against the team where agreement required that they be indemnified for all injuries “including attorney’s fees.” Siegel v Albertus Magnus High Sch.


MVA   Comparative Fault   Respondeat Superior  

Second Deptartment

Plaintiff denied summary judgment where defendant, in order to avoid an accident, crossed into HOV lane where plaintiff was riding his motorcycle which struck the car. Plaintiff failed to eliminate question regarding his own comparative fault because he still had an obligation to act reasonably in light of the circumstances and avoid the accident. Corporate defendant granted summary judgment where the driver was using his own car to commute to work, was not required to commute via car, and was not acting in the furtherance of his employer’s business and, therefore, there could be no respondeat superior. Beres v Terranera


Labor Law §240   Labor Law §241   Labor Law §200   1-2 Family Exception   Control  

Second Deptartment

Defendant wife entitled to 1-2 family exception to Labor Law §§240-241, on proof that she owned the home which was a 1-2 family house and did not control the work being performed. Defendant husband was not entitled to exception because he did not own the house, but showed that he did not control the “means and methods” of work where the plaintiff, whose employer was hired to perform stucco work, fell from a ladder when his coworker let go of the ladder. Rodriguez v Mendlovits


Discovery   CPLR §3124   Hippa   BP   Preexisting  

Second Deptartment

Plaintiff’s motion to compel depositions of 3 additional witnesses beyond the general manager produced by the defendant denied and defendant granted a protective order against the demand where plaintiff failed to show that the general manager had insufficient knowledge and that the additional witnesses had relevant information. Defendant’s cross motion to require plaintiff to provide an unrestricted authorization granted because of the broad allegations of the BP, including claims of exacerbation of pre-existing injuries. and loss of enjoyment of life. O’Brien v Village of Babylon


MVA   Rear End   Serious Injury  

Second Deptartment

The lower court’s grant of summary judgment to defendant on serious injury reversed where plaintiff raised an issue of fact in response to the defendant’s showing by competent medical evidence that there was no serious injury. The court does not give the details of the proofs on injury. The appellate court granted plaintiffs’ cross motion for summary judgment on liability where plaintiffs established that they were stopped for 20 seconds in heavy traffic when their car was struck in the rear by the defendant’s car, establishing both defendant’s liability and plaintiff-driver’s lack of comparative fault. Defendant did not oppose the cross motion and offered no nonnegligent explanation. Karademir v Mirando-Jelinek


Default Judgment   Meritorious Action  

Second Deptartment

Lower court’s order denying plaintiff’s motion for default judgment modified to remove language that the defendants had appeared in the action where plaintiff established that defendants had not “timely” appeared or moved for leave to serve a late Answer, and denied default judgment with leave to renew upon proper papers where plaintiff failed to establish “a viable cause of action” in his papers. Charmon v Pavy


MVA   Premises Liab  

Second Deptartment

Energy company granted summary judgment on proof that excavation work it did was on sidewalk 3 lanes away from the lane of traffic where plaintiff’s decedent was injured when he struck a pothole. Burton v City of New York


Personal Juridiction   Service   Motion to Dismiss  

Second Deptartment

The lower court should have conducted a hearing to determine whether proper service was made under CPLR §308(2)(person of suitable age and discretion) rather than dismissing action based on defendant’s claim that no one meeting the process server’s description of the “Jane Doe” served lived with him. Fuentes v Espinal


Defamation   Vacate Default   Service  

Second Deptartment

Defendant’s motion to vacate an order granting a preliminary injunction requiring defendant to remove its blog and enjoining defendant from republishing the blog claimed to be libelous, for defendant’s failure to oppose the motion, denied where defendant failed to offer any reasonable excuse for its default and defendant’s claim, by its attorney, that defendant was not properly served was rejected where plaintiff filed proof of service in response to the motion to vacate and the court found that the defendant’s attorney could not have personal knowledge of a lack of service. Dae Hyun Chung v Google, Inc.


Premises Liab   Dangerous Condition  

Second Deptartment

Golf club granted summary judgment where plaintiff was injured when club manager stepped back from a table where he was standing with his back to the plaintiff as she walked towards him, bumped the plaintiff who fell to the ground. Plaintiff failed to show that the placement of the table created a dangerous condition or that the defendants, including the club manager, were otherwise negligent. Weinstein v Seawane Golf & Country Club, Inc.

IF YOU MUST READ
(1 summaries)
MUST READS NOTEWORTHY

MVA   Serious Injury  

Second Deptartment

Plaintiff raised a question of fact in response to the defendant’s prima facie entitlement to summary judgment on serious injury by competent medical proof. The court does not give the details of the proofs on injury. Gomez v New York City Tr. Auth.

About Matt McMahon

Civil trials and appeals since 1984
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