In September, HPM&B attorneys gained summary judgment dismissals in two high exposure cases that were venued in The Bronx and another summary judgment dismissal by the Appellate Division, Second Department in a Brooklyn case involving the continuous treatment doctrine.

Summary Judgment in Bronx County

In the first case, plaintiff jumped out of his apartment window eight hours after he left the emergency room of a major metropolitan hospital before he could be seen by a physician.  Plaintiff, a twenty-year-old college student, claimed that a triage nurse failed to do a proper assessment of his mental status, as a result of which he was kept waiting in the emergency room for several hours before allegedly being told to return the following day.  The fall resulted in severe facial disfigurement, the loss of an eye, extensive fractures throughout both lower extremities, requiring multiple surgeries.

HPM&B attorneys Robert Gibson and John Leifert moved for summary judgment on the ground that the emergency room staff did a proper assessment and had no reason to suspect that plaintiff was a danger to himself or others when he arrived in the emergency room complaining of anxiety.  In granting summary judgment, Justice Green of Bronx County adopted our arguments that plaintiff’s expert misstated the evidence in assuming that the ER nurse did not thoroughly interview plaintiff (he did) and that plaintiff was desperate for a psychiatric consultation and in a psychotic state (plaintiff denied suicidal ideation).   The court also noted that plaintiff’s expert did not adequately rebut our expert’s opinion that plaintiff’s conduct upon leaving the hospital, including stopping for food, meeting his girlfriend, playing video games and traveling to and from his workplace, was inconsistent with suicidal behavior.

Our success in this case was notable because the best defense in psychiatric malpractice cases is a showing that the defendant exercised his or her best judgment after undertaking a careful evaluation of the patient.  Here, the claim was premised on plaintiff’s allegation that he was virtually ignored while he was in the emergency room, then told to leave, but our attorneys established that plaintiff’s expert misstated the facts and speculated about how plaintiff’s outcome might have been prevented. To view full decision, click here. 

Summary Judgment in Bronx County

In the second case, Eric Gingold successfully moved for summary judgment in a case involving a decedent who received treatment for an inguinal hernia in the emergency room of HPM&B’s client, a major metropolitan hospital, and was discharged based on an assessment that decedent did not require surgery.  Two days later, decedent was admitted to another hospital with a recurrent hernia and other symptoms, necessitating surgery.  Decedent deteriorated over the next month before he died at the age of 57.  His post-operative course included liver failure, encephalitis, kidney disease secondary to cirrhosis and septic shock.  In moving for summary judgment, we showed that our client’s treatment was appropriate and did not cause the recurrence of the hernia or the infection and overall poor health that ultimately led to decedent’s death. In a lengthy decision, Justice Green of The Bronx agreed with our position that plaintiff’s opposing expert opinion was conclusory, speculative, and factually inaccurate. To view full decision, click here.

Appellate Practice Group Obtains Summary Judgment Dismissal

Finally, in the appellate matter, plaintiff claimed that our client did not properly diagnose and treat bladder cancer.  Plaintiffs’ decedent received treatment from the defendant over a 17-year period for recurrent bladder tumors. After his initial diagnosis, in 1991, the decedent typically returned for treatment only when he was symptomatic, experiencing hematuria. Thus, between December 1999 and April 2003, and again, from December 2004 until October 2007, the decedent did not visit with the defendant.   In Kings County Supreme Court (Karen Grottalio and Patricia Thornton) and in the Appellate Division (Daryl Paxson), we argued that the action was time-barred and that the continuous treatment did not toll the limitations period.  The Appellate Division ultimately agreed with our position that in light of these temporal gaps, there was no evidence that decedent continued to seek a course of treatment, and that any continuity in treatment that had existed was severed.  The court went on to hold that there were no triable issues of fact with respect to the care and treatment within the limitations period.  The import of this new appellate precedent is that the continuous treatment will not apply where there were multiple and lengthy gaps between visits. To view full decision, click here.