Appellate Division Upholds Decision Blocking New York City "Big-Soda Ban"

For a copy of the First Department's decision upholding an order striking down the City's ban on sugary drinks over 16 ounces, click here.

 

Email Confirmation Constitutes Binding Settlement Agreement

In Forcelli v. Gelco, the Appellate Division, Second Department held that emails can be treated as enforceable agreements satisfying the requirements of CPLR 2104.  CPLR 2104 provides that an agreement is not binding “unless it is in a writing subscribed by” the party or the party’s attorney.  In Forcelli, a claims adjuster for one of the defendants sent an email to the plaintiff confirming that the plaintiff “accepted my offer of $230,000 to settle this case.”  In addition to holding that the email constituted a writing under CPLR 2104, the Court also held that the e-mail satisfied the “subscribed” requirement of 2104.  According to the Court, the email was “subscribed” because the claims adjuster’s name was typed at the end “under circumstances manifesting an intent that the name be treated as a signature.”
 

Two Recent Wrongful Death Decisions with Dissents

Rose v. Conte:

In this wrongful death action based upon medical malpractice, the plaintiff alleged Dr. Conte deviated from accepted medical standards when he failed to order a CT scan or a gastrointestinal work-up in February of 2001 when plaintiff was complaining of pain and other abdominal symptoms.  As a result, plaintiff claimed that an abdominal tumor was not identified until March 2002, by which time the plaintiff was “deprived of the opportunity for a cure.”  When surgery was performed in May 2002, the tumor could only be partially resected leading, despite continued treatment, to the plaintiff’s death in September 2007.

At trial, the jury returned a verdict in favor of the decedent but the Supreme Court set aside the verdict and granted a new trial.  The First Department reversed, stating, “it cannot be said that the jury could not have reached its verdict upon any fair interpretation of the evidence.”  The First Department interpreted it as a “battle of the experts,” whose credibility is “peculiarly within the province of the jury.”

Judge Freedman, however, issued a dissent.  He argued that the verdict was against the weight of the evidence, especially since the decedent refused Dr. Conte’s advice starting from September 2001 to go for a full gastrointestinal work-up.  In addition, multiple experts called by the defense explained that the tumor was an extra-gastrointestinal stromal tumor (EGIST), which would not have been visible in February 2001 since it evades early detection and grows rapidly.  Judge Freedman also noted that plaintiff’s own expert, Dr. Singer, called the tumor an EGIST in expert disclosure but then changed his testimony for trial to claim the tumor was just a gastrointestinal stromal tumor (GIST), which is more easily detected sooner. 

Wilk v. James:

In this medical malpractice and wrongful death action, defendants allegedly failed to timely diagnose and treat plaintiff’s aortic dissection.  Plaintiff went to one of the defendant hospitals (Kaleida) on two separate occasions only two days apart, both times complaining of severe back pain.  While a CT scan with contrast would have allegedly led to an aortic dissection diagnosis, the doctors at Kaleida ordered no tests on the initial visit on February 13, 2004 and ordered only a CT without contrast on the second visit on February 15th.  Plaintiff subsequently visited another defendant, Mercy Ambulatory Care Center, in which the documentation incorrectly reflected the plaintiff’s condition, and completely omitted the fact that he was in the hospital twice in the previous two days for severe back pain.  On February 18th, the plaintiff returned to Kaleida with increased back pain and the inability to feel his legs.  With massive internal bleeding, he subsequently died on March 3rd.

Defendants moved for summary judgment, which the Supreme Court denied finding that “issues of fact” were raised by plaintiff’s expert affidavit.  After reviewing all medical records, plaintiff’s expert concluded that the doctor at Kaleida deviated from accepted medical practice by failing to take an accurate history, failing to pursue an aortic dissection as a differential diagnosis and failing to order a CT scan with contrast.  The expert stated that these departures were a substantial factor in the plaintiff’s injuries and eventual death, raising issues of fact regarding causation.  In addition, the expert opined that Mercy’s failure to accurately document plaintiff’s history and symptoms was a deviation from the accepted standards of medical care.  Neither hospital argued they were not vicariously liable for their doctors, so the defense forfeited those arguments.  The Fourth Department affirmed, explaining that the contradictory evidence “supports our conclusion that there is a clear issue of fact.”

Judge Peradotto dissented, arguing that the plaintiff’s expert affidavit’s were “conclusory and did not directly address or refute the prima facie showing in the detailed affidavits of defendants’ experts.”  In particular, Judge Peradotto took issue with the idea that the aortic dissection was present in the earlier hospital visits, as the death certificate listed the aortic dissection as occurring only a few days prior to the plaintiff’s death and nothing in the medical record indicated its presence prior to that.
 

Fourth Department Holds That Second Prong of Lack of Informed Consent Test Does Not Require Expert Testimony

In order to establish a lack of informed consent claim in a medical malpractice action, a plaintiff needs to prove (1) that the medical practitioner failed to disclose the material risks, benefits and alternatives to the surgery, which would have been disclosed by a reasonable medical practitioner and (2) that a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed (Public Health Law §　2805-d).　Furthermore, CPLR 4401-a requires medical malpractice actions based solely on lack of informed consent to be supported by expert medical testimony "in support of the alleged qualitative insufficiency of the consent."

 

In Gray v. Williams, the defendant claimed that CPLR 4401-a required expert testimony as to both parts of the informed consent analysis.　The Fourth Department disagreed holding that "expert testimony concerning what a reasonable person would have done in plaintiff’s position is not necessary to maintain a cause of action premised upon lack of informed consent." This holding is consistent with its prior decisions, as well as with the First and Third Departments.  The Second Department's position on this issue, however, is unclear.  　　　　
 

In Faulknor v. Shnayerson (273 A.D.2d 271 [2000]), the Second Department treated it as though expert testimony was necessary for both parts of the informed consent test.　There, the Court held "a case of malpractice based on lack of informed consent may not be submitted to a jury in the absence of expert medical testimony to support the qualitative insufficiency of the consent i.e., that a reasonably prudent person in the patient’s position would not have undergone the treatment if fully informed."　While there has been case law at the trial level that recognizes the apparent disparity between the Departments (Tullo v. Tartack, 325/98, 2002 WL 31925590 [N.Y. Sup. Ct. July 24, 2002]), the Second Department has never subsequently relied on Faulknor for this proposition.  In addition, some subsequent cases seem to imply that the Second Department does not require expert testimony on the second prong of the analysis, but make no mention of Faulknor (see e.g., Sarwan v. Portnoy, 51 A.D.3d 655 [2nd Dept. 2008]).  Thus, subsequent cases will have to clarify where the Second Department falls on this issue.   
 

Hospital Has No Duty to Detain Voluntarily Admitted Intoxicated Individuals

Court of Appeals - Kowalski v. St. Francis Hosp. & Health Ctrs.:

In this medical malpractice and negligence case, previously discussed here on the MLN blog, the plaintiff claimed the hospital and emergency room doctor should have stopped him from leaving the hospital after he voluntarily admitted himself while highly intoxicated.  The Appellate Division reversed the Supreme Court and granted summary judgment to the defendant.  The Court of Appeals affirmed the Appellate Division explaining, “there are surely few principles more basic than that the members of a free society may, with limited exception, come and go as they please.”  While common law exists allowing “the restraint of people whose mental state might make them a danger to themselves or others in extreme circumstances,” these facts did not allow the hospital to detain the plaintiff without being exposed to liability for false imprisonment. The majority also discussed Mental Hygiene Laws Sec. 22.09 which provides an avenue to detain highly intoxicated individuals if they are brought to the hospital against their will and in danger of self injury.  No equivalent exception, however, exists for intoxicated individuals who voluntarily admit themselves, as plaintiff did in this case.

 

In dissent Judge Pigott argued that the Mental Hygiene Law did not apply, but rather the common law imposed a duty on the defendant to follow its own protocols and procedures.  According to the plaintiff's experts, the hospitals policies required one-to-one surveillance for an individual who arrived in the emergency room in a potentially unstable condition.  Judge Pigott maintained that the alleged violation of these hospital protocols raised triable issues of fact.

First Department Determines Doctor Not Responsible for Care of Patient Once Admitted to Hospital

In Perez v. Edwards, the decedent presented to Dr. Edwards with a sore throat. Two days after the office visit, the decedent was admitted to the hospital where he developed a hyperosmolar condition caused by diabetes that led to his death six days later. The plaintiff commenced this action against Dr. Edwards claiming that he failed to diagnose the decedent with diabetes during the initial exam and then failed to properly treat the decedent after he was admitted to the hospital.

 

The Supreme Court denied Dr. Edwards’ motion for summary judgment, but the First Department reversed. The Court held that there was no support in the record that Dr. Edwards was ever informed of symptoms that could suggest diabetes; rather, these symptoms were only presented to the hospital two days later. Furthermore, the Court held "defendant owed decedent no duty to treat or manage his hyperosmolar state once he was admitted to the hospital." As the Court explained, the doctor was "entitled to rely on the treatment rendered to decedent in this hospital by specialists better equipped to handle decedent’s condition."