A More Divided Court

This weekend the New York Times published an article showing that the frequency with which Chief Judge Lippman dissents is markedly higher than either of his two most recent predecessors. In fact, according to the article, Chief Judge Lippman's 15 dissents over this past term nearly matches that of the total number dissents authored by Chief Judge Kaye over her 16 years on the bench.  That there has been an increased frequency in dissents under the Lippman Court, however, is not new.  Judge Lippman himself has previously spoken about his philosophy at the Court of Appeals.  In an article last year year he stated, "I am a result-oriented person . . . and the result I am looking for is not necessarily unanimity.”  What this article adds is that according to recent research by Professor Vincent Bonventre, Judge Lippman's dissents reflect his "staunchly liberal" positions regarding the rights of criminal suspects and the injury claims of plaintiffs.  It also depicts Judge Lippman as leading a 3-judge liberal minority intent on either making their policy positions known to the Legislature and the public, or influencing future decisions.  For the full article click here. 

Court of Appeals Dismisses Complaints From 1993 World Trade Center Bombing Victims

Today, the Court of Appeals in Matter of World Trade Center Bombing Ltg. dismissed a lawsuit brought against the Port Authority for the 1993 World Trade Center Bombing.  The Court held that in performing security for the general public the Port Authority was performing a governmental or proprietary function and that it properly exercised its discretion in its security decisions to entite it to the common-law defense of governmental immunity. 

According to the 4-3 majority: "Our courts simply cannot ignore that this policy-based doctrine is intended to afford deference to the exercise of discretion by the officials of municipalities and governmental entities, especially with respect to security measures and the deployment of limited police resources. Governmental entities cannot be expected to be absolute, infallible guarantors of public safety, but in order to encourage them to engage in the affirmative conduct of diligently investigating security vulnerabilities and implementing appropriate safeguards, they must be provided with the latitude to render those critical decisions without threat of legal repercussion."

This case is also notable in that Chief Judge Lippman and Judge Smith did not take part.  Justice Mercure from the Third Department and Judge Prudenti from the Second Department sat by deisgnation.  Judge Mercure joined the majority and Judge Prudenti joined the dissent. 

Panel Drops Jury Award by 99% in Medical Malpractice Case

In Hugh v. Ofodile, the First Department cut by 99% a jury verdict to a plaintiff who claimed injuries following a thigh lift procedure. The medical malpractice action alleged a lack of informed consent and deviations from accepted practice. The plaintiff claimed injuries to her genital area, including scarring and a flattening of the labia majora. The jury awarded the plaintiff $60 million in pain and suffering damages [$10 million for past pain and suffering and $50 million for future pain and suffering]. Upon Post Trial Motion, the jury’s verdict was reduced to $4 million [$1 million for past pain and suffering and $3 million for future pain and suffering].

The Appellate Division sustained the liability findings, although noting that “the evidence of a departure was not overwhelming.” In reducing the pain and suffering award to a total of $600,000 [$300,000 each for past and future pain and suffering], the Appellate Division relied on the medical records which repeatedly described the plaintiff’s genitalia as “normal,” and the absence of expert testimony linking any alleged pain to the thigh lift surgery. In a partial dissent, Justices Richter and Catterson agreed with the reduction of the past pain and suffering award, but would have reduced to the future award to $1.3 million based on, among other things, the plaintiff’s long life expectancy.

Second Department Further Narrows Scope Of Medical Malpractice Actions Asserted By Nonpatients

Today the Second Department issued an interesting decision in the case Fox v. Marshall.  The Fox case arose out of the murder of Denice Fox by her neighbor the defendant Evan Marshall.  Marshall had a history of substance abuse and psychiatric problems and had been treated numerous times at different drug abuse and mental health facilities.  The plaintiff alleges that on the day before the murder, Marshall, who had voluntarily admitted himself to defendant SLS Residential Inc.'s substance abuse and mental health facility, received a pass to leave the facility to visit his mother.  Marshall allegedly then purchased cocaine and spent the night at his mother's house.  The next morning after allegedly driving his car into a woman jogging, he forced his way into Fox's house and killed her.  

The plaintiff commenced an action in negligence and medical malpractice against SLS, its related corporate entities and various employees of those entities, as well as against Marshall and his mother.  On the medical malpractice action against SLS and a psychiatrist that worked for SLS, the plaintiff claimed that they breached their duty to the public by failing to properly diagnose Marshall and giving him a pass to leave the facility.  

Each of the defendants moved to dismiss the complaint.  The Supreme Court denied the motions holding that a mental health facility may owe a duty to protect the public from the actions of an outpatient where there is evidence that the facility has the ability to control the patient's actions and has knowledge that the patient may be a danger to others.  The Second Department modified dismissing only the medical malpractice causes of action and cause of action against Marshall's mother.

With respect to the medical malpractice cause of action, the Court assessed a physician's duty of care in light of it previous decision in Donohue v. Copiague Union Free School Dist. (64 A.D.2d 29 [2nd Dept. 1978]).  Based on the duty analysis set forth in Donohue, the Court held that extending "a physician's duty of care beyond a narrow class of potential defendants, such as immediate family members, cannot be supported under any analysis of duty."  Furthermore according to the Court, "'[w]hile moral and logical judgments are significant components of the [duty] analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that the legal consequences of wrongs [are limited] to a controllable degree'. Therefore, regardless of any sense of outrage which is evoked by the heinous actions of Evan Marshall, society's interest is not best served by concluding that a doctor who treats a patient, within the context of mental health, undertakes a duty to the public at large." (internal citations omitted).

Notably, last year we published an article in the New York Law Journal titled, "Defining the Duty of a Physician: Recent Developments" (Sept. 8, 2010).  In that article we discussed several recent cases that had addressed the issue of duty in a medical malpractice case.  In particular, we argued that the approach taken by the First Department in Cregan v. Sachs (65 A.D.3d 101 [1st Dept. 2009]) failed to properly treat the issue of duty as a legal question to be initially decided by the court.  In contrast, today's Fox decision properly recognizes that the issue of duty is a legal question for the court and adopted an analytical approach that coincides very nicely with the analysis we advocated in our article.   

It is also notable that the Court's implicit restriction of a doctor's duty to third-parties as limited to when those third parties are family members is similar to a limitation used by the Court of Appeals in Laratro v. City of New York (8 N.Y.3d 79 [2006]).  In Laratro, at issue was whether the City had a special relationship with the plaintiff sufficient to give rise to a duty of care where a co-worker called 911 on behalf of the incapacitated plaintiff and received assurances from emergency personnel that help was on the way.  The Court of Appeals held that while a special relationship can be created where the caller is not the plaintiff, those circumstances should be limited to where the caller is a family member. 

Suffolk County Pilot Program For E-Discovery In Med Mal Cases

Below is the release from the Suffolk Bar:

"On August 17, 2011 at the Suffolk County Bar Association Headquarters at 5:30 p.m. there will be an informational session regarding a new pilot program concerning the early resolution of electronic discovery issues in medical malpractice cases. At a date to be determined, the parties to a medical malpractice assigned to PART 17 (Justice Peter H. Mayer's Part), will be required to complete an electronic discovery Order. The session will cover information regarding the substance of the Order as well as any related procedural issues. Comments and questions from the Bar will be appreciated. Please contact Jill at Justice Mayer's Chambers (631) 852-1760 or jmeise@courts.state.ny.us."

First Department Finds That Agreement Signed By Only One Party Is Insufficient To Trigger Additional Insured Provision

In Cusumano v. Extell Rock, LLC, an unsigned Construction Agreement that named Hard Rock Cafe as an additional insured, and a "Work Authorization" signed only by the named insured, Region Facility Services, was held to be insufficient to trigger Twin City Fire Insurance Company's additional insured provision that requred a written contract or agreement requring Region to add Hard Rock as an additional insured. The Court found that an agreement signed by only one party is not "executed" as that term is used in an insurance policy (Nicotra Group LLC v. American Safety Indem. Co., 48 AD3d 253). Therefore, the Court held that Twin City was not obligated to defend or indemnify Hard Rock.

The Court further held that a declaration that Twin City was not obligated to defend or indemnify Hard Rock in the underlying actions was the proper method for disposing the action, rather than by judgment dismissing the complaint against Twin City (Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]).

First Department Addresses Causation In Medical Malpractice "Loss of Chance" Case

In King v. St. Barnabas Hospital, a Riker's Island correctional officer, Thorrie Murray, was playing a basketball game at the facility's gym when he suffered a cardiac arrest.  When medical personnel arrived, he was unconscious and not breathing.  After using the "quick look" function on the defibrillator to see whether there was electrical activity in the heart and finding a mixture of asystole and some V-fib, the defendants shocked Officer Murray in an attempt to restore his heartbeat.  Those efforts, as well as others, however, were unsuccessful. 

Officer Murray's estate commenced this medical malpractice action alleging that it was a departure from emergency protocols to defibrilate the decedent while he was in asystole and in failing to timely administer epinephrine and atropine.  The defendants moved for summary judgment arguing that the defendants acted within accepted standards of practice and that nothing they did had a detrimental effect on the outcome.  The trial court agreed and granted the motion.  The court noted that even under "the best circumstances, plaintiff's expert cannot predict whether Officer Murray could have been saved or if cardiac function could have been restored." The court further found that the plaintiffs failed to offer any statistics of survival rates of patients in asystole or whether the administration of epinephrine or atropine increases the chances of survival.  The First Department, however, reversed.

The Court held that New York permits claims for negligent resuscitation efforts to the extent the defendants departed from life support protocols and deprived the plaintiff of "any possibility of survival."  According to the Court "[W]e cannot endorse a rule that would essentially absolve first responders of liability where they deviate from life support protocols.  The very fact that advanced life support protocols exist for patients in an asystolic state means that adherence to the protocols afford a chance of reviving the patient, notwithstanding the grave nature of the condition.  It necessarily follows that failure to follow the protocols reduces the chances of reviving the patient."  Thus, even in the absence of the ability to quantify whether the defendants actions decreased the chances of survival, the Court held that the protocols raised a question of fact sufficient for the jury.  

While the correctness of this decision is certainly an debatable issue, this case now presents an opportunity to face head-on a further issue that has long been lingering in "loss of chance" cases in New York.  That issue is, whether damages in a loss of chance case should be limited to the percentage of the chance lost or whether the plaintiff should receive full damages?  A further discussion of this issue is contained in an article we published, "Loss of Chance: Confusion in New York's Standard of Proof" (Nassau Lawyer, October 2007).