Friday, May 31, 2013

Med Mal Cases Heard This Week at the Court of Appeals

In Kowalski v. St. Francis Hospital and Health Centers, the plaintiff (with a blood alcohol content of .369) checked himself into St. Francis for detoxification. Kowalski later left the hospital unsupervised (and still highly intoxicated) and was hit by a car, rendering him quadriplegic. The plaintiff brought a medical malpractice action claiming that Dr. Chintapalli and his employer (Emergency Physician Services of New York) were negligent in not detaining him and supervising him sufficiently once admitted.
The defendants moved for summary judgment, explaining via medical expert affidavits, that the plaintiff could not have been involuntarily detained as he did not pose an imminent threat to others. The court, however, denied the motion based on expert affidavits from the plaintiff stating that the defendants should have searched for the plaintiff or called the police once he left the hospital in his intoxicated condition. The Second Department then reversed stating that the defendants "lacked authority to confine the plaintiff upon his departure from St. Francis, where he voluntarily sought treatment." The Court of Appeals heard the case on Tuesday. Audio of the oral argument will be available on the Court’s website next week.
In James v. Wormuth, the plaintiff brought a medical malpractice action against Dr. Wormuth after he left a surgical wire in James’ chest during a lung biopsy. After James complained of pain, Dr. Wormuth removed the wire two months later. At trial, the plaintiff relied on res ipsa loquitur, instead of providing evidence that Dr. Wormuth was negligent in not initially removing the wire. The Supreme Court granted a directed verdict for the defense holding that res ispa loquitur did not apply because the wire was intentionally left in the patient after Dr. Wormuth decided it was in James’ best medical interest to leave the wire in, rather than keep her under general anesthesia longer and make a larger incision to remove it. In a 3-2 decision, the Fourth Department affirmed since the plaintiff failed to argue at trial that leaving the wire in her thorax was unintentional. The dissent, however, argued that res ipsa loquitur did apply because the wire should never have been left inside the plaintiff’s chest.
The Court of Appeals heard oral argument on both cases on Tuesday. On Thursday, the Court also heard reargument on Applewhite v. Accuhealth. At issue in Applewhite is whether the City was performing a governmental function giving rise to a special duty to the plaintiff when it sent a Basic Life Support (BLS) ambulance in response to a 911 call and, whether, if the City assumed a special duty, the plaintiff can establish justifiable reliance because in response to the plaintiff’s request for immediate transport to the hospital, the EMT’s said they should wait for an Advanced Life Support (ALS) ambulance. Audio of each of the oral arguments will be available on the Court’s website next week. 

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