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New York Public Health Law § 2805-d


A New York Criminal Lawyer said that, in this action, the plaintiffs seek to recover damages for medical malpractice and lack of informed consent. They allege that the defendants were negligent in failing to timely diagnose and treat the plaintiff stroke symptoms as a result of which she suffered a stroke which has left her with permanent “locked-in” syndrome, a condition which renders her unable to speak or to move below the neck. The defendants seek summary judgment dismissing the complaint. They maintain that when they treated her, plaintiff did not present with stroke symptoms which are required before the drugs tissue Plasminogen Activator (“t-PA”) can be administered intravenously and that by the time that her stroke was diagnosed, the three-hour window of time in which that drug could have been given expired. In addition, a number of the defendants allege that they had no contact with her until after the three-hour window for the administration of t-PA expired, thus requiring dismissal of the complaint against them. As for their failure to administer the drug t-PA intra-arterially which has a six-hour window for its administration, the defendants maintain that that drugs was experimental and had not been approved by the Federal Drug Administration and accordingly, their failure to administer it cannot serve as grounds for a finding of malpractice.

A New York Drug Crime Lawyer said that, the plaintiffs maintain that the defendants unreasonably delayed in diagnosing her stroke in light of which the time in which both intravenous as well as intra-arterial t-PA could be administered expired with devastating consequences. The plaintiffs also maintain that the hospital, per the defendant failed to establish appropriate protocols and procedures for caring for a patient who presents with possible stroke symptoms and that the hospital also failed to enforce them which contributed to their failure to timely diagnose and treat plaintiff.

A New York DWI Lawyer said that, in their complaint and Verified Bills of Particulars, the plaintiffs fault the defendants for failing to be aware of or recommend that plaintiff discontinue Ephedra; failing to recognize the significance of her heaviness and tingling; failing to refer her to an appropriate specialist; failing to obtain a complete history regarding the onset of her symptoms; failing to appreciate the significance of blood pressure readings and the toxicology report; and, failing to timely diagnose her stroke and to administer t-PA. On their Amended Bill of Particulars, the plaintiffs fault the defendants for not following the doctor’s recommendations, failing to order further diagnostic tests, attributing the plaintiff’s condition to a drug overdose and failing to obtain appropriate consults by specialists. The plaintiffs also allege that the doctor failed to diagnose a stroke on the December 12, 2003 MRI/DWI. The plaintiffs also fault the doctor and the hospital for not establishing and/or following appropriate standards and protocols for treating patients with stroke symptoms.
The issue in this case is whether the motion for summary judgment dismissing the complaint should be granted. Arraignment was next.

The court in deciding the case said that, on a motion for summary judgment pursuant to CPLR 3212, the criminal proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once the movant’s burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference.

The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury.’ Thus on a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby.

Pursuant to New York Public Health Law § 2805-d, a cause of action for lack of informed consent is limited to cases involving non-emergency treatment, procedure or surgery or a diagnostic procedure involving an invasion or disruption of the patient’s body. Thus, the “plaintiff must allege that the wrong complained of arose out of some affirmative violation of plaintiff’s physical integrity.”

If the moving defendant only establishes that he did not commit medical malpractice, in opposing the motion, the plaintiff must establish the existence of a material issue of fact with respect to only that issue. Similarly, if the moving defendant establishes a lack of proximate course, the plaintiff need establish only the existence of a material issue of fact with respect to that issue. However, if the moving defendants establishes both a lack of negligence as well as proximate cause, in opposing the motion, the plaintiff must establish an issue of fact as to both of those issues. “General allegations of medical malpractice which are conclusory in nature and unsupported by competent evidence tending to establish the elements of medical malpractice” do not suffice. The plaintiff’s expert must set forth the medically accepted standards of care and explain how they were departed from. And, the plaintiffs expert must address all of the key facts relied on by the defendant’s expert. An expert’s affidavit which lacks evidentiary support in the record or is contradicted thereby is not sufficient to raise a triable issue of fact. “An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion. “To establish proximate cause, the plaintiff must present ‘sufficient evidence from which a reasonable person might conclude that it was more probable than not that’ the defendant’s deviation was a substantial factor in causing the injury.” The plaintiffs expert need not” ‘quantify the extent to which the defendant’s act or omission decreased the plaintiff’s chance of better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased the injury. However, the defendant may establish a lack of proximate cause if she/he establishes an “intervening act which is extraordinary under the circumstances and not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct which may well be a superseding act which breaks the causal nexus. This was not medicaid fraud.

In general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee, and may not be held concurrently liable unless its employees committed independent acts of negligence or the attending physician’s orders were contraindicated by normal practice such that ordinary prudence required inquiry into the correctness of the same.” Where, however, there is evidence that allegedly negligent medical decisions were made by a hospital’s employee, both may be liable. Indeed, a hospital may be held liable for punitive damages when a plaintiff establishes that it failed to have an attending physician with adequate experience to address the serious nature of a critically ill patient’s condition evaluate and treat him/her in a timely fashion and for failing to provide proper supervision to the attending resident.

Where a general physician refers a patient to a specialist for treatment of a specific condition and is led to believe that that expert has assumed such care, the general physician is absolved of liability. Finally, “summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting expert opinions. Such credibility issues can only be resolved by a jury.” The plaintiffs’ claim for lack of informed consent pursuant to Public Health Law § 2805-d(2) is dismissed. The emergent circumstances here preclude such a claim.
The plaintiff’s expert criticizes the defendants for diagnosing a drug overdose. She notes that the only way to definitively do that is to determine blood levels which was never done. S/he also notes that her condition waxed and waned and her MRI had visible bilateral changes on the pons, which are not indicative of a drug overdose. The plaintiffs’ expert also opines that there was no basis for considering an infection in light of the sudden dramatic onset of symptoms including altered consciousness, extensor posturing and other neurological signs.

This court will not consider the plaintiffs’ claims that any of the defendants acted negligently in not administering intra-arterial t-PA. Suffice it to say, it is not disputed that in 2003 that drug was experimental and not approved by the Federal Drug Administration. Accordingly, it was not a generally accepted treatment in the medical community and a doctor’s failure to use it simply may not be considered negligent and serve as grounds for a finding of medical malpractice. Not only has this court been unable to unearth a case allowing the failure to employ experimental drugs or procedures to serve as the basis for a finding of negligence, curiously, the cases which have addressed this issue have found, inter alia, issues of fact as to whether the use of experimental drugs or procedures was negligent.

In view of the defendants involvement with plaintiff’s case after the three-hour window for the administration of t-PA expired, their actions or inactions could not have proximately caused plaintiff’s alleged injuries. The complaint against them is dismissed.

The plaintiffs have raised a material issue of fact with respect to the physicians, as well as the hospital’s liability for plaintiff’s alleged injuries. There is also an issue of fact as to whether the administration of t-PA was contraindicated by plaintiff’s condition. Both the physicians were involved in plaintiff’s care during the critical three-hour window. There is an issue of fact as to whether the doctor was negligent in her advising the other physician and implementing proper treatment for plaintiff and, whether the hospital was negligent in leaving a resident doctor alone to care for plaintiff, a critically ill young woman, when time was of the essence.

Nevertheless, the doctor’s failure to perform an MRA on December 8, 2003 cannot serve as grounds for negligence as it was not set forth in the plaintiffs’ Bills of Particulars. In any event, the conclusions relied upon by the plaintiffs’ expert are entirely speculative, i.e., that an MRA would have shown a vertebral artery dissection and treatment thereof could have prevented or mitigated plaintiff’s injuries.

Accordingly, the court held that, upon the foregoing papers, this motion by the criminal defendant for an order pursuant to CPLR 3212 granting him summary judgment dismissing the complaint against him’ is granted. This cross-motion by the defendant for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them, is granted. The motion by the defendants, for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is granted to the extent that the complaint against the defendants is dismissed. This motion by the defendants, for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them, is denied.

If you are involved in a similar case, seek the representation of a New York DWI Attorney and New York Drug Crime Attorney. At Stephen Bilkis and Associates we can handle your case competently.

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