New York Legal Update

Psychiatrist May Be Liable For Faling To Rule Out Physical Condition

You go to a psychiatrist to be treated for an emotional or mental condition. Suppose in addition that  the psychiatrist regards complains of pain as psychosomatic. Can the psychiatrist be held liable if he fails to rule out an actual physical condition? Yes.

Take the example of a case decided by the Second Department last week - Swezey v Montague Rehab & Pain Mgt., P.C., 2008 NY Slip Op 01939. In that case, the plaintiff had been treated by various chiropractors and acupuncturists, and in the course of that treatment, but unbekownst to her, an acupuncture or electromyography needle penetrated the right ventricle of her heart. The plaintiff then came under the care of the defendant psychiatrist where she allegedly made repeated complaints of chest and other physical pain. She further alleged that the psychiatrist treated these complaints as psychosomatic, and that he did nothing to rule out an actual physical condition. After eventually discovering the true cause of her pain and having the acupuncture needle surgically removed, she commenced a medical malpractice action against the psychiatrist, along with others.

The psychiatrist denied that she ever agreed to diagnose, evaluate or treat the plaintiff for any physical malady or condition, and alleged that the plaintiff never complained to her of "chest pain, heart pain or palpitations.

However, the Second Department found that the psychiatrist's assertions that no such complaints were made merely raised issues of fact and thus, affirmed denial of the psychiatrist's motion for summary judgment. The Second Department did not address the psychiatrist's claim that she never agreed to diagnose, evaluate or treat the plaintiff for any physical malady or condition. This being the case is it now required for psychiatrists to rule out physical conditions any time a patient makes some complaint of pain?

Heating Pad - Medical Malpractice Or Negligence?

You go to the doctor, or maybe a physical therapist, and they apply a heating pad for treatment. If you are burned by the heating pad was there medical malpractice or simple negligence? That was the issue last week in Morales v Carcione, 2008 NY Slip Op 01513 before the Second Department.

The plaintiff claimed that she sustained burns from heating pads applied to her legs by technicians at the defendant Central Westchester Neuromuscular Care, P.C. where she was receiving treatment for neuropathy and other neuromuscular ailments. The defendant moved to dismiss the action because it was not commenced within the two years and six months medical malpractice statute of limitations of CPLR 214-a.  The Supreme Court found that the plaintiff's action was timely because it was commenced with the the three-year statute of limitations period applicable to actions to recover damages for personal injuries CPLR 214(5).

However, the Second Department reversed finding that the action sounded in medical malpractice, and thus, should have been dismissed as untimely. The Court explained:

Conduct may be deemed malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician. When the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence (citations and quotes omitted).

Here, the incident which resulted in the alleged injuries to the plaintiff arose out of the physician-patient relationship and was substantially related to the rendering of medical treatment to combat her neuropathy and other neuromuscular ailments. Accordingly * * *  as it sounds in medical malpractice, [the action] * * * is therefore subject to the limitations period of two years and six months.

Doctor's Malpractice Insurance Does Not Cover Sexual Assault Claim

Does a medical malpractice insurer have to cover a claim of sexual assault against the insured doctor? Not in the case of Elashker v Medical Liab. Mut. Ins. Co., 2007 NY Slip Op 09638 decided by the Third Department on Thursday. The doctor at issue was an attending physician at a nursing home. He was accused by a nurse employed by the nursing home of sexual assault. The doctor referred the claim to his medical malpractice insurance carrier. The insurance carrier investigated the claim but then denied coverage.

The doctor then commenced a declaratory judgment action that the insurer was obligated to defend him because the nurse had also been a patient of the doctor and she had testified in her underlying action that the doctor had been palpating her thyroid when the attack occurred.

The Third Department affirmed summary judgment in favor of the insurer. The medical malpractice policy at issue only covered claims brought against an insured for "Professional Services" that were provided or should have been provided. The Court stated that there was no evidence that the nurse ever complained about the doctor's "professional services" or asserted that his conduct was professional malpractice. In such circumstances, the Court stated that the thyroid examination described by the nurse merely provided the occasion for the alleged assault and did not convert the doctor's acts into professional malpractice.

I wonder if medical malpractice carriers offer a separate sexual assault rider to their policies.   

Make Sure You Have The Right Expert

Not all cancer experts are alike or qualified to testified about cancers not in their field. This is demonstrated by the Second Department's decision Tuesday in de Hernandez v Lutheran Med. Ctr., 2007 NY Slip Op 09559. In that medical malpractice action the plaintiff offered the testimony of a physicist who studied the growth patterns of breast cancer in general. However, the decedent at issue had a retroperitoneal sarcoma. Thus, the Court affirmed a dismissal of the plaintiff's action finding that the proposed expert, who was not a physician, was unqualified to render expert testimony regarding the rate of growth of the decedent's tumor as he showed no specialized knowledge, experience, training, or education from which it could be inferred that his opinion regarding the growth of the decedent's sarcoma would be reliable. And thus, since the plaintiff was not able to present any relevant expert testimony, the plaintiff was unable to present a prima facie case of medical malpractice.

"You Gave Me A Cancerous Kidney!" - Is It Medical Malpractice Or Negligence?

The Statute of Limitations for medical malpractice actions in New York is  2 1/2 years (CPLR 214-a). The Statute of Limitations for ordinary negligence is 3 years. Where does supplying organs for transplants fall - is it medical malpractice or negligence? The First Department decided this issue yesterday in Rodriguez v Saal, 2007 NY Slip Op 06336.

In February 2002, decedent Juan Rodriguez underwent a kidney transplant procedure at the Rogosin Institute, with a replacement kidney from a cadaver supplied by the defendant New York Organ Donor Network (NYODN). Four and a half weeks later, a kidney biopsy was performed at New York Presbyterian Hospital which revealed lesions in the new kidney. Neither Rodriguez nor his wife was informed by Presbyterian of this finding. After several visits to Presbyterian for treatment to the implanted kidney, Rodriguez's wife was advised that the kidney had been rejected and needed to be removed. The kidney was removed in September, 2002, but Rodriguez's spouse maintained that neither she nor decedent was informed of the prior biopsy results at that time. The pathology examination report of the donor kidney, dated September 3, 2002, showed extensive tumor infiltration of the organ. Four days later it was determined these tumors were evidence of lymphoma. Decedent died on September 19, 2002. On or about October 24, 2002, Rodriguez's wife received the autopsy report on decedent. It noted that decedent had metastatic undifferentiated malignant neoplasm (cancerous tumors) in a majority of his major organs. She claimed this was the first time she learned the transplanted kidney had been cancerous.

Rodriguez's wife thus commenced an action against several defendants including the organ donation service NYODN. The action against NYODN was not commenced within 2 1/2 years, but it was commenced within 3 years. Thus, NYODN moved to dismiss the action as barred by the 2 1/2 year medical malpractice statute of limitations.

The First Department found that the plaintiff's action against NYODN was one for negligence and not medical malpractice, and thus, allowed the action to proceed. The Court stated that conduct is deemed medical malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician. However, when a complaint does not allege negligence in furnishing medical treatment to a patient, but rather the failure of a medical provider in fulfilling a different duty, the claim sounds in negligence. The Court stated that in order for a cause of action sounding in medical malpractice to be maintained, the claim must be predicated upon the existence of an express or implied physician-patient relationship, and such a relationship is created when the professional services of a physician are rendered to and accepted by another person for the purposes of medical or surgical treatment. Here, the Court found that NYODN did not provide any type of medical treatment directly to decedent. Rather, the case against NYODN turned on its duties as a collection and distribution center of donated organs, and the issue to be resolved was whether NYODN breached its duty to exercise due care in its organ collection activities.

It does not appear that NYODN had anything to do with the kidney once it was supplied. But if it had, such as testing, or monitoring the kidney for rejection, could it then have escaped under the shorter 2 1/2 year medical malpractice statute of limitations? 

Obstetrician Not Liable For Being Late To Delivery

Litigation against obstetricians has exploded in recent years for injuries caused during birth both to the mother and child. Obviously if the obstetrician himself is performing the delivery his duty to the patient seems straightforward. But what about the following situation. Suppose an obstetrician's patient goes into labor, and for whatever reason the obstetrician is unable to make it to the hospital in time. So he calls in and has others cover for him to perform the delivery. Can the late obstetrician still be liable if injuries occur during delivery? This was the claim raised in Brown v Bauman, 2007 NY Slip Op 06251decided yesterday by the First Department.

In that case, the defendant Dr. Bauman was a solo practitioner and board-certified obstetrician/gynecologist who treated the plaintiff-mother during her pregnancy. When the mother went into labor, Dr. Bauman was unexpectedly late in proceeding from his home to the hospital to attend his patient's labor and delivery. Nonetheless, he confirmed by telephone that an on-call attending obstetrician and the chief obstetrical resident were caring for the patient pending his arrival. These two other obstetricians delivered the infant, and Dr. Bauman eventually arrived at the hospital shortly after the birth, at which time the covering obstetricians were engaged in repairing a perineal laceration sustained by the mother during the delivery. After the delivery, the mother began to suffer urinary incontinence, and about one year later from fecal incontinence, which she claimed was caused  by a torn sphincter and nerve damage.

The mother contended that with proper management by an experienced obstetrician/gynecologist, the perineum tear could have been avoided. The mother argued that had Dr. Bauman been present, his experience might have led him to perform an episiotomy, which would have prevented the perineum tear that extended into her anal sphincter. Instead, she claimed, the delivery was left to inexperienced residents, who performed a faulty repair of the perineal laceration.

Dr. Bauman moved for summary judgment dismissing the complaint. The motion was denied with the motion court finding that there were issues of fact as to the existence and scope of the duty owed by Dr. Bauman to his patient which should be resolved by a jury. However, the First Department reversed stating that the duty owed by Dr. Bauman to his patient was a legal question to be decided by the courts. The First Department stated that a physician who is unable to care for the patient does not depart from the standard of care so long as he or she arranges to transfer the care of the patient to another well-qualified physician. And on the record before it, the First Department found that Dr. Bauman established that he complied with this requisite standard of care. In addition, regardless of whether Dr. Bauman satisfied his duty to the mother, the First Department also found that the mother failed to submit any evidence to show the existence of an issue of fact as to causation. Thus, the action was dismissed.

In this case, Dr. Bauman was able to call ahead to arrange for qualified obstetricians to cover for him. Does the decision in this case necessarily mean that if Dr. Bauman did not call in he would be liable?

Differential Diagnosis Methodology By Itself Insufficient To Establish Causation In Medical Malpractice

Some medical events are hard to explain. Doctors use a methodology called "differential diagnosis" to come up with an explanation of medical events. "Differential diagnosis" essentially is a process of elimination where a doctor lists the likely causes of an event and then asks questions and performs tests to eliminate possibilities until he or she is satisfied that the single most likely cause has been identified. However, what if the single most likely cause identified is one which is not generally accepted by the scientific community. An interesting medical malpractice action from the First Department last week - Marso v Novak, 2007 NY Slip Op 06170 - answers this problem.

In that case, the plaintiff suffered a bilateral stroke at the age of 43. Upon her admittance to the hospital, one of the first findings made by her treating physician, was that the plaintiff was suffering from bradycardia since her heart beat had slowed to 27 beats a minute. Subsequently, the treating physicians at the hospital became convinced that bradycardia was the only possible cause of the bilateral stroke, and that the stroke could have been prevented had the defendant, Dr. Novack, inserted a pacemaker in the year prior to plaintiff's stroke.

The treating physician at the hospital, who was also plaintiff's expert witness on causation at trial, testified that all other possibilities for causation of the stroke were excluded by testing. He admitted, however, that it was not generally accepted in the scientific community that bradycardia is a risk factor for the type of embolic stroke suffered by plaintiff.

The jury returned a verdict for the plaintiff. However, the defendants moved for a judgment notwithstanding the verdict on the grounds that the plaintiff had failed to present a prima facie case because her theory of causation (bradycardia caused the stroke) was not generally accepted in the scientific community. The trial court granted the defendant's motion and dismissed the case, and the First Department affirmed. The Court rejected the plaintiff's argument that since "differential diagnosis" was a generally accepted scientific methodology; its results should be sufficient to establish a prima facie case of causation. The Court noted that the plaintiff's own expert testified that bradycardia was not accepted by the scientific community as a cause of the type of stroke suffered by the plaintiff. And it reasoned that to accept a methodology-only approach would circumvent the rule of permitting before the jury only expert testimony which is based on generally accepted scientific principles. The Court also noted that it was the plaintiff's burden to show that his theory of causation was generally accepted by the scientific community, and in essence, the only thing that the plaintiff demonstrated was that the "differential diagnosis" methodology was generally accepted. And this simply was not enough. 

Chiropractors, Cancer, And Medical Malpractice

Are chiropractors qualified to diagnose cancer? If they fail to diagnose cancer, are they liable for medical malpractice? A case from the Second Department last week illustrates that it is probably unwise to even ask your chiropractor if certain symptoms could be cancerous. The case was Patrella v Atlantic Chiropractic Group, 2007 NY Slip Op 05710. In that case, the plaintiff had been treated by a chiropractic group for approximately a month. As part of the treatment, one chiropractor had taken X-rays of the plaintiff's spine, which he used to diagnose a narrowing of vertebral discs. When he was reviewing the X-ray film, the plaintiff asked the chiropractor if certain abdominal pain she was feeling could be cancer. The chiropractor responded that there was nothing on the X-ray film to indicate the presence of cancer. The plaintiff was subsequently treated by a neurologist and several other physicians, none of whom diagnosed her with cancer. She finally was diagnosed with cancer of the appendix approximately a year later. The plaintiff then commenced a medical malpractice action against her chiropractors.

At trial, a chiropractic expert for the plaintiff testified that the defendants departed from good and accepted chiropractic practices by attempting to diagnose cancer, and by failing to refer the plaintiff to an internist or general surgeon. A chiropractic expert for the defendants characterized the idea that the defendants were attempting to diagnose cancer as "absurd," and testified that they did not depart from accepted practices. In addition, an oncologist who testified as an expert for the plaintiffs, admitted that there was no evidence of cancer on the X-ray films, but also testified that X-rays are not used to diagnose cancer.

A jury returned a verdict for the defendant chiropractors. The Second Department affirmed the jury's verdict stating there was a valid line of reasoning by which the jury could have concluded that the defendants did not depart from good and accepted chiropractic practice, and that the jury was entitled to credit the testimony of the defendants' expert over that of the plaintiffs' expert.

This case raises interesting questions of whether a chiropractor can be found liable for failure to diagnose cancer, or at least failing to refer a patient to specialists, if the type of cancer falls more within a chiropractor's knowledge. Chiropractors typically examine such structures as the spine and pelvis to see if they are in alignment, and use x-rays to check such structures. What if, instead of the cancer being in the appendix (where apparently nothing would show up on x-rays), something suspicious showed up on one of the bony structures of the spine or the pelvis? Under these circumstances perhaps a more credible argument could be made that since a chiropractor is more familiar with such bony structures, anything that looked suspicious should be referred to a more qualified physician or oncologist.

Another question that arises is: In Patrella, should the chiropractor have simply responded to his patient - "I am not qualified to diagnose cancer, you should seek the opinion of an oncologist." Perhaps. But this is probably not realistic given that all medical providers want to provide their patients both with accurate information and some degree of comfort in responding to patient questions. This is all that the chiropractor in Patrella seems to have done, and it appears that the jury's verdict recognized this.