Questions of Fact about Whether Duty Arose in Medical Malpractice Action

Tom v. Sundaresan:

In this medical malpractice action, Dr. Sundaresan moved for summary judgment on the basis that he lacked a duty of care to the plaintiff.  In particular, he claimed that one phone conversation with a doctor at another hospital in reference to the plaintiff did not give rise to a physician-patient relationship.  In opposition, the plaintiff claimed that since the two doctors discussed his transfer to defendant’s hospital, his condition, and agreed to perform surgery together on the plaintiff during the course of the phone call,  Dr. Sundaresean owed him a duty of care.

The First Department agreed, holding that the Supreme Court properly denied summary judgment to Dr. Sundaresan, since there was a triable issue of fact regarding whether or not a duty of care arose.  The Court found “a jury could reasonably infer that both doctors expressly contemplated treating plaintiff as part of the surgical team managing his care.”  However, it dismissed the cause of action against Dr. Sundaresan that alleged lack of informed consent, because it was the other doctor who obtained the plaintiff’s consent in this case.

DOMA and Prop 8 Cases Decided by Supreme Court

In March, we made two brief posts about oral arguments in two significant U.S. Supreme Court cases, one considering the Defense of Marriage Act and the other considering California's Proposition 8.  This morning, the U.S. Supreme Court issued decisions in both cases.  In United States v. Windsor, the Court held key provisions of the Defense of Marriage Act unconstitutional.  In Hollingsworth v. Perry, the Court dismissed due to a lack of jurisdiction over the appeal.  For the same reasons that the Supreme Court lacked jurisdiction, the Court also held that the Ninth Circuit lacked jurisdiction as well.  The effect  of those actions in Hollingsworth is to allow the District Court's decision stand.  The District Court had struck down Proposition 8.

Fourth Department Grants Leave in Case Deciding Right of Nonparty Witness' Attorney to Participate in Deposition

Sciara v. Surgical Associates of Western New York:

In this medical malpractice action, plaintiff alleges the defendant doctor negligently performed laparoscopic surgery on her.  During the non-party pathologist’s deposition, there was a verbal altercation between plaintiff’s counsel and respondent pathologist’s counsel.  The plaintiff moved to preclude the nonparty pathologist’s counsel from the rest of the deposition.  The Supreme Court required the pathologist to finish her deposition and permitted the pathologist’s counsel to be involved in the deposition as provided by 22 NYCR § 221.2 and 221.3.

The Fourth Department reversed holding that “counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition.”  The Court found that the Supreme Court erred in relying on 22 NYCR § 221.2 and 221.3, which allows an attorney of a nonparty to interrupt a deposition in specified circumstances.  The Fourth Department found that CPLR 3113 (c) is also applicable, as it provides depositions should commence “as permitted in the trial of actions in open court,” and it is well established that counsel for nonparty witnesses are not able to object or participate during trial.  Further, the Court pointed out that if there was a conflict between CPLR 3113 (c) and 22 NYCR § 221.2 and 221.3, the statute controls over the regulation.  While no participation by the nonparty’s counsel should be permitted, the court stated the nonparty had the right to seek a protective order if necessary.
 

Two members of the Fourth Department dissented.  They argued that there was no conflict.  According to the dissent, the rules were adopted twenty-three years after CPLR 3113 (c) came into existence, and as such, would not have been adopted if in direct conflict with the already existing statute.  In addition, the dissent cited to a Second Department case (Horowitz) in which the court took into account objections made by a nonparty’s counsel in the deposition context.

The Fourth Department granted leave to appeal to the Court of Appeals on June 7, 2013.

Court Makes Rare Request For Amicus Participation

In a rare move, the New York Court of Appeals has requested the participation of Amicus Curiae after granting leave to appeal in Clemente Bros. Contracting Corp. v. Hafner-Milazzo.  Underlying the appeal is New York’s Uniform Commercial Code and a bank’s liability to a customer when the bank pays a check on a forged signature.  The plaintiff’s claims stem from Capital One Bank’s payments on checks that were allegedly forged by the plaintiff’s former employee.  One of the issues to be heard involves an agreement between the bank and its customer to shorten the statutory time to make a claim from one-year to fourteen days.

Loss of Chance Challenge Found Unpreserved

On June 6th, the Court of Appeals issued its decision in Wild v. Catholic Health Sys., a case we previously reported on here involving a challenge to the loss of chance doctrine and charge.  Unfortunately, however, the Court found that the defendants had failed to preserve the argument that a "loss of a chance" charge should not be given on the ground that New York does not recognize that doctrine. The Court instead found that the defendants had merely preserved the argument that the facts did not support a "loss of a chance" charge, an argument that the defendants did not make in the Court of Appeals. Having found that the "loss of a chance" language in the charge was not at issue, the Court took the defendants' challenge to the charge to be the argument that the lower court misstated the plaintiff's burden of proof. The Court held that, putting the "loss of a chance" language aside, the charge did not improperly decrease the plaintiff's burden of proof because it required the jury to find that the defendants' acts or omissions were a substantial factor in causing the injury and instructed the jury that the plaintiff must prove her case by a preponderance of the evidence.

Because the Court found the "loss of a chance" issue unpreserved, medical malpractice practitioners are left where they were before leave was granted in this case. Defense attorneys should be careful to object to a plaintiff's request for a "loss of a chance" charge both because the facts and expert testimony do not support the charge, if that is the case, and because "loss of a chance" has not explicitly been recognized by the New York Court of Appeals. Practitioners should argue that the "loss of a chance" concept lowers the plaintiff's burden of proof and would permit plaintiffs to have a recovery when it is not more likely than not that the alleged malpractice was the cause of the injuries sued upon. See T. O'Shaughnessy, Loss of a Chance: Finally Back in the Court of Appeals (N.Y.L.J. 7/16/12). In addition, they can argue that if the judge is inclined to give a "loss of a chance" charge, the plaintiff should only be able to recover damages reflective of the amount of chance actually lost. For example, if the jury finds that the plaintiff had a 40 percent chance of a cure in the absence of malpractice, the court would later multiply that percentage by the total damages awarded to determine the verdict amount against the defendant. This approach, referred to as the "proportional" approach to the "loss of a chance" problem, has been adopted by about 20 states (id.).