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Legal Decisions of Note – Week of Dec. 7, 2022

Submitted on Mon, 12/12/2022

These are recent case decisions regarding medical malpractice that we think are interesting. Thefirm of Sholes & Miller is not involved in these matters.

Rivera v Advanced Allergy & Asthma Assessment & Diagnostics, P.C. (Supreme Court of the State of New York: Appellate Division, Second Dept.December 7, 2022): Plaintiff allegedly was injured when she was given an allergy shot intended for another patient. The appellate division held this claim sounded in medical malpractice, as the challenged conduct constituted medical treatment, or at least bore a substantial relationship to the rendition of medical treatment by a physician. The administration of the injection involved a matter of medical science or art requiring special skills not ordinarily possessed by lay persons. As such, a 2 1/2-year statute of limitations applied.

Source:  https://www.nycourts.gov/reporter/3dseries/2022/2022_06283.htm
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Bhuiyan v Germain (Supreme Court of the State of New York: Appellate Division, Second Dept.December 7, 2022): Where hospital staff, such as resident physicians and nurses, have participated in the treatment, the hospital may not be held vicariously liable for resulting injuries where the hospital employees merely carried out the private attending physician’s orders, except when the hospital staff follows orders knowing they are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders, the hospital’s employees have committed independent acts of negligence, or the words or conduct of the hospital give rise to the appearance and belief that the physician possesses the authority to act on behalf of the hospital.
Source:  https://www.nycourts.gov/reporter/3dseries/2022/2022_06901.htm
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Legal Decisions of Note – Week of Nov. 17, 2022

Submitted on Fri, 11/18/2022

This is a recent case decision regarding medical malpractice that we think are interesting. Thefirm of Sholes & Miller is not involved in this matter.

Lanzetta v Montefiore Med. Ctr., 2022 NY Slip Op 06554 (Supreme Court of the State of New York: Appellate Division, First Dept. – November 17, 2022): Bronx County Supreme Court (Gonzales, J.) granted Montefiore Medical Center and Dr. Robert Potenza’s motion for summary judgment.  The First Department REVERSED, reinstating the complaint as to those defendants. In 1993, decedent had signed a HCP and living will which indicated that the health care agents (his wife and plaintiff-son) were to decline anything other than comfort measures if he became terminally ill. In 2016, decedent sought treatment at Montefiore and completed a new HCP, naming his daughter as his health care agent, and plaintiff-son as an alternate; this HCP directed the agent to “use any means necessary to save his life.”  On April 7, 2017, plaintiff-son and an attending signed a “Forgoing Life-Sustaining Treatment Including DNR” form, advising of decedent’s wishes not to be resuscitated or intubated. The plaintiff was told by the defendants that the patient’s condition was terminal about a week later.  He received medical treatment until his death a few weeks after that. Plaintiff son sued in malpractice based on the various health proxies and forms, and alleged defendants breached their agreement with decedent by administering antibiotics and IV hydration after the terminal diagnosis, and that this prolonged his life and suffering.  “Here, there are issues of fact that preclude summary judgment. It is unclear whether the 1993 healthcare proxy (and the living will), the 2016 healthcare proxy or the 2017 FLST governed this dispute and whether the 2016 health care proxy was revoked by decedent through conversations with his agents, pursuant to Public Health Law § 2985(a). Significantly, it is not clear from the record whether the treatment prolonged decedent’s life, as neither side submits an expert affidavit. There is also a question as to whether decedent’s health care agents approved the very treatment for which they now seek to hold defendants liable.”

Source:  https://www.nycourts.gov/reporter/3dseries/2022/2022_06554.htm
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Legal Decisions of Note – Week of Nov. 9, 2022

Submitted on Wed, 11/16/2022

These are recent case decisions regarding medical malpractice that we think are interesting. Thefirm ofSholes & Miller is not involved in these matters.

Wijesinghe v Buena Vida Corp., 2022 NY Slip Op (Supreme Court of the State of New York: Appellate Division, Second Dept.November 9, 2022):  The Second Department noted that the granting of summary judgment to the active tortfeasor, required dismissal of claims of vicarious liability against the employer. “A claim of vicarious liability cannot stand when “there is no primary liability upon which such a claim of vicarious liability might rest”. Dismissal of the direct claim of medical malpractice mandates dismissal of the derivative cause of action (cit.om.)”

Source:  https://www.nycourts.gov/reporter/3dseries/2022/2022_06283.htm
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Legal Decisions of Note – Week of Oct. 20 – 27, 2022

Submitted on Fri, 11/04/2022

These are recent case decisions regarding medical malpractice that we think are interesting. Thefirm ofSholes & Miller is not involved in these matters.

Zomber v Forde,2022 NY Slip Op 05891 (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 22, 2022)  The decedent was treated with opioids by pain management defendants for facial pain, for 2 ½ years.  The decedent was also being treated by a neurologist, who described the decedent as depressed with suicidal ideation.  The decedent was found dead at home.  The medical examiner determined the death to be accidental, caused by acute intoxication with hydromorphone and gabapentin.  The plaintiff brought an action for medical malpractice and wrongful death.  Defendants moved for summary judgment.  The Appellate Division noted that “the certified death certificate submitted by the defendants in support of their motion was prima facie evidence that the decedent’s death was accidental”, citing Public Health Law 4103(3).  However, this evidence is rebuttable; and the plaintiff’s expert’s affidavit was sufficient to raise a triable issue of fact as to whether the decedent died by suicide.  Given that the decedent suffered from depression and intractable pain, had access to opioids, and expressed to his treating neurologist that he had suicidal ideation, the plaintiff’s expert’s opinion that the decedent committed suicide was not speculative.  As such, the denial of the motion was proper.

Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05891.htm
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

Baltzer v Westchester Med. Ctr.,2022 NY Slip Op 05826 (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 19, 2022)  Between January 6, 2017, and April 7, 2017, the plaintiff was hospitalized at the defendant Hospital, where he allegedly developed severe decubitus ulcers, or pressure sores. After his discharge, he was treated for this condition at several other medical facilities. He returned to defendant Hospital for an unrelated outpatient procedure in September 2018. In May 2019, the plaintiff began a course of treatment for his decubitus ulcers with a private physician, who subsequently referred the patient back to defendant Hospital, where between July 25, 2019, and July 29, 2019, he was evaluated for surgical management of the worsening decubitus ulcer located on his left hip joint.  On September 26, 2019, the plaintiff commenced the instant action for medical malpractice. WMC, a public corporation, moved pursuant to CPLR 3211(a)(5) and General Municipal Law § 50-e(1)(a) to dismiss on the grounds, that the complaint was time-barred, and that the plaintiff failed to serve the Hospital, a municipal corporation, with a notice of claim. The plaintiff cross-moved, inter alia, for leave to serve a late notice of claim, and for leave to amend the complaint to include allegations regarding WMC’s treatment of the plaintiff in July 2019. By order dated April 24, 2020, the Supreme Court denied that branch of WMC’s motion to dismiss the causes of action based on treatment rendered during the plaintiff’s admission to WMC between January 6, 2017, and April 7, 2017, as time-barred.   * * * The appellate division held that plaintiff failed to raise a triable issue of fact as to the existence of a continuous course of treatment with WMC for the decubitus ulcers. The plaintiff’s only treatment by the Hospital after his April 2017 discharge was either unrelated to the condition at issue or was initiated only upon his current wound specialist’s referral. Under the circumstances, the plaintiff failed to raise a triable issue of fact as to whether treatment was anticipated to continue by the plaintiff or the Hospital after April 2017, or whether there was “a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment”.  As such, the Appellate Division reversed and dismissed the claim.

Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05826.htm
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

Fasce v Catskill Regional Med. Ctr.,2022 NY Slip Op 05906 (Supreme Court of the State of New York: Appellate Division, Third Dept. – October 20, 2022) Third Department opinion on SJM’s in medical malpractice case  The complaint alleged failure to request a renal consultation and lactic acid level, and continuing diuretics at 80 mg daily by IV (when the patient’s usual dose was only 40 mg) despite kidney dysfunction and reduced GFR.  It was claimed that the defendant hospital was vicariously liable for the negligence of its agents and employees.  In opposition to summary judgment, plaintiff claimed the defendant was vicariously liable for a hospitalist who admitted the decedent to the hospital. Plaintiff submitted an affirmation of an internal medicine physician alleging the hospitalist failed to take a proper history, failed to form a differential diagnosis regarding dyspnea, and failed to document a systolic murmur, and also failed to obtain a nephrology consult.  The affirmation also criticized a cardiologist.  The Third Department noted that the hospitalist and the cardiologist were not mentioned in the complaint or bill of particulars.  The cardiac claims, it held, were entirely different from the theories of liability in the pleadings and did not necessarily flow therefrom.  however, the Third Department held that the claims against the hospitalist pertaining to  his care of the renal condition were not waived, because the underlying theory in the complaint had to do with the decedent’s renal failure.  Note: the hospitalist was deposed and admitted at his deposition that he did not take a history pertaining to kidney disease.  

Source: Fasce v Catskill Regional Med. Ctr. (2022 NY Slip Op 05906) (nycourts.gov)
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

Messina v Rivera, 2022 NY Slip Op 05999 (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 26, 2022) Summary Judgment Motion, reliance on referral to specialist, appealability of orders  – The plaintiff’s bariatric surgeon  referred the plaintiff to a gastroentorologist, for the plaintiff’s reported gastrointestinal issues. When the plaintiff later reported symptoms related to her gastrointestinal issues at an office visit at the bariatric surgeon’s office after the visit where the gastroenterologist ordered the appropriate testing, she was directed to return to the gastroenterologist. Although a referring physician may be held liable for his or her own independent conduct that proximately causes a patient injury, defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them to the extent of dismissing all claims for medical malpractice arising from care by relying on a referral to a specialist, for the plaintiff’s reported gastrointestinal issues and directing her to return to [that specialist] when she reported further symptoms. In opposition, the plaintiffs failed to demonstrate the existence of a triable issue of fact.

Source: Messina v Rivera (2022 NY Slip Op 05999) (nycourts.gov)
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted and edited by Ellen A. Fischer, Sholes & Miller, PLLC

 

Busch v Sherman, 2022 NY Slip Op 06049, (Supreme Court of the State of New York: Appellate Division, Third Dept. – October 22, 2022) expertise of plaintiff’s expert in opposition to sjm in medical malpractice case,  an expert affirmation in opposition to summary judgment motion failed to describe how expert he was familiar with hip replacement surgery and the standards for post-operative care. The Appellate Division held that he fact that the expert was a board-certified orthopedic surgeon was “sufficient to support the inference that his opinion regarding [plaintiff]’s treatment was reliable, and any alleged lack of skill or experience goes to the weight to be given to the opinion, not its admissibility”.

Source: Busch v Sherman (2022 NY Slip Op 06049) (nycourts.gov)
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted and edited by Ellen A. Fischer, Sholes & Miller, PLLC

 

Legal Decisions of Note – Weeks of Oct. 5 – 13, 2022 

Submitted on Tue, 11/01/2022

These are recent case decisions regarding medical malpractice that we think are interesting. Thefirm of Sholes & Miller is not involved in these matters.

Balbuenas v New York City Health & Hosp. Corp., 2022 NY Slip Op 05526, (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 5, 2022) Bellevue Hospital Center, the defendant, is a municipal hospital operated by NYCHHC.   Actions against NYCHHC shall be brought in the City of New York, in the county in which the cause of action arose (Uncons. Laws of NY 7401[3]).  However, this venue statute is not jurisdictional in nature, and can be waived if a timely demand to change venue is not filed (as here).  In determining whether to extend time to file a notice of claim, the court must consider all relevant facts, including whether the municipality had actual knowledge of the essential facts of the claim within 90 days of accrual “or a reasonable time thereafter”.  The Court held that in a medical malpractice case, when the medical records themselves detail the procedures and injuries, and suggest the public corporation may be responsible for those injuries, the public corporation will be held to have had such actual knowledge.  The alleged malpractice must be “apparent from an independent review of the medical records.” Here, plaintiff failed to establish the medical records on their face made it apparent that defendant caused the relevant injury.  The next inquiry was as to “prejudice”; the Court felt the plaintiff met the burden on the motion of providing a “plausible argument supporting a finding of no substantial prejudice.” Respondents’ claim of prejudice was found to be generic and speculative.   Next, the court considered the reasonableness of the excuse for the delay in serving a notice of claim.  Here, plaintiff established that her emotional and psychological injuries, and the prompt retention of counsel and investigation of the claim after the plaintiff’s cessation of mental health treatment, established such a reasonable excuse for the plaintiff (but not her spouse).  Leave to serve a late notice of claim was granted to the injured plaintiff, but not her spouse.
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05526.htm
Source:NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

Coffey v Mansouri, 2022 NY Slip Op 05678 (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 12, 2022) The Second Department reversed the lower court’s denial of summary judgment in this medical malpractice action.  The defendant planned to perform right femoral popliteal bypass surgery.  Plaintiff’s expert opined that the defendant departed from accepted standard of care by not choosing a different vessel once the popliteal artery was found to be diseased.  “While the expert opined [defendant] should have used a different vessel, he failed to specify which vessel should have been used (see Matter of Joseph v City of New York, 74 AD3d 440). For that same reason, the assertion by the plaintiff’s expert that ‘the vessel should have been bypassed more distally’ was conclusory and speculative.”  [N.B. – useful case for purposes of reply on summary judgment motions by defendants].

Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05678.htm
Source:NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

Malefakis v Jazrawi, 2022 NY Slip Op 05685 (Supreme Court of the State of New York: Appellate Division, Second Dept. – October 12, 2022)   The Appellate Division addressed the issue of apparent or ostensible agency by estoppel out of the Mduba context, and noted that “In order to create such apparent agency, there must be words or conduct of the principal, communicated to a third party, which give rise to the appearance and belief that the agent possesses the authority to act on behalf of the principal. The third party must reasonably rely on the appearance of authority, based on some misleading words or conduct by the principal, not the agent. Moreover, the third party must accept the services of the agent in reliance upon the perceived relationship between the agent and the principal, and not in reliance on the agent’s skill'” (Keesler v. Small, 140 AD3d 1022, quoting Dragotta v Southampton Hosp., 39 AD3d at 698; see Sampson v. Contillo, 55 AD3d 588, 590).”

Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05685.htm
Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC
#summary judgment #reply #ostensible agency

Legal Decisions of Note – Week of Sept. 21 – 28, 2022 

Submitted on Wed, 10/05/2022

These are recent case decisions regarding medical malpractice that we think are interesting. The firm of Sholes & Miller is not involved in these matters.   

Byner v Murray-Taylor – NY Slip Op 05201 (9/21/22 – Supreme Court of the State of New York: Appellate Division, 2nd Dept) –  The plaintiff died in June 2014.  An application was filed for a certificate of voluntary administration fairly quickly; however, no application was made for letters testamentary until May 2017.  These were issued in October 2017.  Shortly thereafter, a motion was made to lift the stay imposed by the death of the plaintiff, substitute the administrator, and amend the complaint to add a cause of action for wrongful death. Defendant cross-moved pursuant to CPLR 1021 to dismiss, for failure to substitute a proper party within a reasonable time.  The Court denied plaintiffs’ motion and granted defendant’s cross-motion to dismiss.  The Second Department affirmed.   The three-year delay showed a lack of diligence.  Furthermore, the plaintiffs failed to show they had a potentially meritorious action (the pleadings, attorney affirmation, and certificate of merit were insufficient for this purpose).   The cause of action for wrongful death was barred by the two-year statute of limitations, which was not tolled during the pendency of the application for letters of administration.
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05201.htm
Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Aronoff v Dewitt Rehabilitation & Nursing Ctr., Inc. (9/21/2022 – Supreme Court of the State of New York: Appellate Division, First Department – J. Kelley) – This case includes a discussion of the effect of Executive Order 202.8 and the 13 extensions of that EO.  Judge Kelley held that pursuant to the Second Department’s decision in Brash v. Richards, 195 AD3d 582 (2nd Dept. 2021), ” the EOs effectuated a true tolling of the limitation applicable to any claim that had accrued prior thereto, and not a mere suspension of the limitations period, as asserted by the moving defendants. ”

A toll suspends the running of the statutory period and is excluded from the calculation of the relevant time period, unlike a suspension, which simply delays the expiration of the period.

Judge Kelley explained, “Contrary to the moving defendants’ interpretation, the EO provision reciting that the toll was no longer in effect as of November 4, 2020 cannot be construed to mean that the toll was intended to inure only to the benefit of litigants who were obligated to commence an action or file papers between March 20, 2020 and November 3, 2020. Such an interpretation makes no logical sense, as it would require a litigant who was subject to a limitations deadline of November 5, 2020 strictly to comply with that deadline, as if the toll simply didn’t exist for that litigant. Such a construction would both defeat the purpose of creating a true “tolling period” and contradict the Court of Appeals’ definition of a “tolling period.” The subject language means only that the length of the tolling period terminated at 228 days and would not be extended any further.”

Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source:  https://www.nycourts.gov/reporter/pdfs/2022/2022_33225.pdf

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Cristiano v Sacca (9/21/22 – New York Sup Ct – J. Kelley) – “With respect to a cause of action predicated on lack of informed consent, ‘where a private physician attends his or her patient at the facilities of a hospital, it is the duty of the physician, not the hospital, to obtain the patient’s informed consent’” (Cynamon v Mount Sinai Hosp., 163 AD3d 923, 925 [2d Dept 2018], quoting Salandy v Bryk, 55 AD3d 147, 152 [2d Dept 2008]; see Mirshah v Obedian, 200 AD3d 868, 874-875 [2d Dept 2021]; A.A. v St. Barnabas Hosp., 176 AD3d 582, 584 [1st Dept 2019]). The only exception to this rule is when a hospital should have known that the treating physician had not obtained informed consent for the procedure that was performed (see Bradshaw v Lenox Hill Hosp., 126 AD3d 484, 485-486 [1st Dept 2015]).   The hospital met its burden of proof by establishing the patient’s physician was an independent attending and treating physician who had obtained the patient’s consent.  GSH also demonstrated that it did not improperly grant operating privileges to the patient’s physicians. This may be a useful case to look at if you have a negligent credentialing cause of action.

Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source:   Cristiano v Sacca (nycourts.gov)
Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Hoffman v Taubel (9/27/22 – First Dept.) – The appellate division held that the supreme court properly denied the defendants’ motion for summary judgment, but should have done so on the ground that defendants failed to meet their burden of proof on the motion. Defendant’s expert claimed the patient’s symptoms “can” be affected by other conditions; “are likely related to” other medical conditions; and urinary complaints “can” be affected by mental state without harm being caused to the bladder.  This was deemed insufficient to make out the burden of proof.  The defendants’ motion therefore should have been denied without regard to the sufficiency of the papers in opposition, as the burden never shifted to the plaintiffs.

Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source:   https://www.nycourts.gov/reporter/3dseries/2022/2022_05272.htm

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Legal Decisions of Note – Weeks of Sept. 13 – 21, 2022

Submitted on Mon, 09/26/2022

These are recent case decisions regarding medical malpractice that we think are interesting. The firm of Sholes & Miller is not involved in these matters.

Clarke v. NYCH&H (Kings Co. 9/13/2022): J. Graham denied defendant hospital’s motion for an Order dismissing plaintiff’s complaint for “willful failure of the plaintiff to renew and update the Letters of Administration which would have had the effect of the representatives having the necessary authority to prosecute this matter.” Defendant further moved to preclude evidence at the time of trial regarding misreading of a CTA as an abandoned claim. The Court was advised prior to commencement of trial that the Temporary Letters had expired several years prior.  The Court marked the case off the trial calendar. Defendant hospital requested dismissal for failure to substitute a proper party within a reasonable time after the event requiring substitution. The Court noted the defendant was not prejudiced by this delay (which was approximately five years), continuing to engage in discovery and settlement negotiations, and that the action had potential merit. As such, this motion pursuant to CPLR 3211(a)(3) was denied. The defendant argued that the CTA claims were new; but the Court held that the “allegation regarding the [CTA] merely amplifies and elaborates upon the facts and theories that were already alleged”, pointing to the broad allegation that defendant “failed to timely and appropriately have and report on results of tests ordered, including but not limited to pathology and blood and radiology studies.” Furthermore, the defendant had responded to this allegation presented in an EWD by immediately serving its own radiology EWDs disputing this claim. As such, preclusion was denied.

Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source:  https://www.nycourts.gov/reporter/pdfs/2022/2022_33110.pdf

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

Dantzig v Mueller (New York Co. 9/14/2022): J. Kelley issued a detailed opinion on a summary judgment motion in this medical malpractice action involving claims of failure to properly treat coronary artery disease, including failure to properly insert a stent in the radial artery. The plaintiff was a medical doctor and submitted his own opinion in opposition to the defendants’ showing. First, the opinion was set forth in an affirmation, which is not permitted when the affirmant is a party, even if he is a doctor. Second, he was a dermatologist, and therefore not qualified to opine about the standard of care for cardiology, interventional cardiology, cardiothoracic surgery, and cardiovascular medicine. There is a good discussion of various cases in which physicians in different specialties were not permitted to opine outside their specialty. There is also a useful analysis of the lack of a requirement that the defendant serve a 3101-d disclosure prior to summary judgment motion. Finally, the decision lays out case law in the first department pertaining to informed consent causes of action and the necessity for expert opinion as to qualitative insufficiency of the consent.

Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source: https://www.nycourts.gov/reporter/pdfs/2022/2022_33119.pdf

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

Byner v Murray-Taylor – NY Slip Opinion 05201 (2nd Dept 9/21/22): In this matter, the plaintiff died in June 2014. Plaintiff failed to file for letters testamentary until May 2017. These were issued in October 2017. Shortly thereafter, plaintiffs moved to lift the stay imposed by the death of the plaintiff, substitute the administrator, and amend the complaint to add a cause of action for wrongful death, and a cross-motion to dismiss pursuant to CPLR 1021 for failure to substitute a proper party within a reasonable time. The Court denied plaintiff’s motion and granted the cross-motion to dismiss. The Second Department affirmed. The three-year delay showed a lack of diligence. Furthermore, the plaintiffs failed to show they had a potentially meritorious action (the pleadings, attorney affirmation, and certificate of merit were insufficient for this purpose). The cause of action for wrongful death was barred by the two-year statute of limitations, which was not tolled during the pendency of the application for letters of administration.

Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_05201.htm

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

 

Legal Decisions of Note – Week of August 4 – August 18, 2022 

Submitted on Fri, 09/02/2022

These are recent case decisions regarding medical malpractice that we think are interesting. The firm of Sholes & Miller is not involved in these matters.

Malpractice v Ordinary Negligence; New Theory in Opposition to Summary Judgment; Continuous Treatment in the Second Department

Rojas v. Tandon (2nd Dept 8/17/22)  In March 1999, then newborn plaintiff was dropped in the delivery room shortly after her birth.  She commenced an action for damages in January 2020.  Defendant moved to dismiss as time-barred, since the infancy toll (CPLR 208) is limited to ten years for medical malpractice claims.  Plaintiff argued that the case sounded in ordinary negligence.  The Supreme Court (Judge Genine D. Edwards, Kings County) denied the motion, agreeing the claims were for ordinary negligence, and as such the action was timely commenced prior to the plaintiff’s 21st birthday.  The Second Department reversed, holding that “[i]n determining whether conduct should be deemed medical malpractice or ordinary negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached (cit. om.). A negligent act or omission by a health care provider that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient constitutes medical malpractice (cit. om.).”  The conduct at issue derived from the duty owed to plaintiff as a result of the patient-physician relationship and was substantially related to plaintiff’s medical treatment.  As such, the toll for infancy had expired.

Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source:  https://www.nycourts.gov/reporter/3dseries/2022/2022_04989.htm

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

Walker v. Jamaica Hospital Medical Center (2nd Dept. 8/17/2022) Summary judgment in favor of defendant hospital reversed.  The case involved alleged failure to administer tPA.  The Supreme Court (Judge Peter J. O’Donoghue, Queens County) found the opposition raised new theories of liability for the first time in opposition to defendants’ motions.  “Although the plaintiffs’ theory regarding the administration of aspirin was not specifically alleged in the complaint or bill of particulars, this theory was referred to by the plaintiffs’ counsel when deposing [the physician defendant], and thus, was appropriately raised in opposition…”.   Furthermore, the hospital defendant improperly relied on the affirmation contained in a codefendant physician’s expert affidavit, despite the fact that the expert did not address the allegations specific to the hospital defendants.  N.B. – Beware! Where there are questions about a particular theory at deposition, even if it is not in the bill of particulars, the

Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source: https://www.nycourts.gov/reporter/3dseries/2022/2022_04996.htm

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

Weinstein v. Gerwitz (2nd Dept. 8/17/2022)  New case on continuous treatment.
“‘Under the continuous treatment doctrine, the limitations period does not begin to run until the end of the course of treatment if three conditions are met: (1) the patient continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period; (2) the course of treatment was for the same conditions or complaints underlying the plaintiff’s medical malpractice claim; and (3) the treatment is continuous'”.  “The critical inquiry is not whether the defendant failed to make a diagnosis or undertake a course of treatment during the period of limitation, but whether the plaintiff continued to seek treatment for the same or related conditions giving rise to his or her claim of malpractice, during that period (cit. om.)”  As such, “a defendant cannot defeat the application of the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, if the defendant treated the plaintiff continuously over the relevant time period for symptoms that are ultimately traced to that condition” (cit om.).”  In this matter, the patient was seen for perimenopausal and gynecological conditions, and no complaints were made or treatment sought for symptoms related to osteoporosis.  “Since there was no actual course of treatment for osteoporosis or for symptoms related to osteoporosis, there could be no resultant continuous treatment tolling the statute of limitations.”  Plaintiff attempted to argue that due to her atrophic vaginitis and post-menopausal bleeding, a bone density test should have been undertaken which would have revealed the osteoporosis.  However, there was no medical evidence supporting that there is causation or correlation between atrophic vaginitis/post menopausal bleeding, and osteoporosis.  The fact that all three conditions are listed on a “Sono/Bone Density Progress Note Form”, did not suffice to establish such a link without expert opinion.  The fact that the progress notes included sections for “bone density” and the word “no” was entered beside it by the practitioner, does not show that the practitioner was monitoring the patient’s bone health.  The references to Vitamin D and calcium supplements, furthermore, did not establish a course of treatment for later-diagnosed osteoporosis. The fact that the medical records reference the negative family history for osteoporosis, also does not establish continuous treatment for osteoporosis. The mere treatment for post-menopausal symptoms does not establish treatment of osteoporosis. There is an extensive dissent disagreeing with these contentions by Judge Duffy.

Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source:   https://www.nycourts.gov/reporter/3dseries/2022/2022_04997.htm

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Legal Decisions of Note – Week of July 27 – August 4, 2022 

Submitted on Fri, 08/12/2022

These are recent case decisions regarding medical malpractice that we think are interesting. The firm of Sholes & Miller is not involved in these matters.

Gaston v. NYCH&HC  (2nd Dept 2022)Plaintiff’s decedent appeared at Kings County Hospital with scratches on his forearm and stated that he had attempted to commit suicide.  After 20 hours of treatment and observation, he was discharged.  He committed suicide the next morning.  Plaintiff alleged medical malpractice. The defendant moved for summary judgment, meeting its burden of proof by submitting a board-certified psychiatrist’s opinion that the discharging physician made a reasonable decision in accordance with the appropriate standard of care when she determined that the decedent was no longer an immediate risk to himself, and referred him to an outpatient clinic for follow-up.  The Second Department noted that in order to “hold a physician or his or her employer ‘responsible for damages resulting from the actions of a psychiatric patient who has been released when the patient’s release is a matter of professional judgment … it must be shown that the decision to release the patient was something less than a professional medical determination founded upon a careful examination of the patient’ (cit om).”  The plaintiff’s expert opinion was held to be conclusory, speculative, and unsupported by the evidence.

Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source:   https://www.nycourts.gov/reporter/3dseries/2022/2022_04716.htm

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

Jean-Paul v. Jamaica Hospital Medical Center (2nd Dept. 2022) – Plaintiff alleged an “occupational therapist failed to exercise a heightened level of care to avoid burns, properly supervise the therapy session, or provide the plaintiff with instructions for burn care”.  The Court held such claims “sound in medical malpractice, not ordinary negligence. Because the plaintiff challenged the occupational therapist’s assessment of the plaintiff’s supervisory needs during his physical therapy session, the conduct at issue derived from the duty owed to the plaintiff as a result of the physical therapist-patient relationship and was substantially related to his medical treatment (cit. om.).”  This is significant in cases where plaintiffs attempt to allege ordinary negligence instead of malpractice, in the context of provision of therapy services.

Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source:
 https://www.nycourts.gov/reporter/3dseries/2022/2022_04794.htm

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Legal Decisions of Note – Week of July 20 – 22, 2022 

Submitted on Fri, 08/12/2022

This is a recent case decision regarding medical malpractice that we think is interesting. The firm of Sholes & Miller is not involved in this matter.

Vargas v. Lee, (1st Dept. 2022) – denial of summary judgment affirmed; Court held that defendant, Wyckoff Heights Medical Center, failed to meet its initial burden of proof.  Wyckoff failed to establish that a physician was a private, independent physician, where he was “assigned by Wyckoff to render a vascular surgical consultation to [plaintiff] in connection with his postoperative care and treatment (cit. om.).”    The court referenced not only the Mduba rule (that liability may attach where a patient comes to emergency room seeking treatment from the hospital and not a particular physician of the plaintiff’s choosing”) but added: “or a nonemployee physician otherwise acted as an agent of the hospital, or the hospital exercised some control over the physician”. (citing Mitchell v. Goncalves).

Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source:  https://www.nycourts.gov/reporter/3dseries/2022/2022_04661.htm

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Legal Decisions of Note – Week of July 13 – 20, 2022 

Submitted on Fri, 08/12/2022

These is a recent case decision regarding medical malpractice that we think is interesting. The firm of Sholes & Miller is not involved in this matter.  

 

Borek v. Seidman (Supreme Court NY County, J. John J. Kelley) – This case has an interesting discussion of the standard for obtaining a preliminary injunction, the circumstances under which a patient’s request for his own records may be denied pursuant to Public Health Law 18, and the doctrine of collateral estoppel or issue preclusion. This is an action for medical malpractice, in which plaintiff claims that his psychiatrist improperly prescribed certain psychiatric medications. The plaintiff sought a preliminary injunction prohibiting defendant psychiatrist from disposing of or destroying his treatment records during the pendency of the action and compelling her to provide a copy of the records. In a previous Article 78 proceeding, the plaintiff had been denied access to his own records. Collateral estoppel applied and the request for his own records was denied.

Source:  NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source:  https://www.nycourts.gov/reporter/pdfs/2022/2022_32329.pdf

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Legal Decisions of Note – Week of July 8 – 13, 2022 

Submitted on Mon, 07/18/2022

This is a recent case decision regarding medical malpractice that we think is interesting. The firm of Sholes & Miller is not involved in this matter.  

 

Bhim v. Platz (Appellate Division 2nd Dept. July 13, 2022): During summation in this Nassau County medical malpractice case, defense counsel displayed a printed enlargement of the written testimony of the plaintiff’s expert witness, claiming the expert had responded affirmatively to a certain question. During jury deliberations, it emerged that the enlargement omitted colloquy and a second half of the question that was between the first part of the question, and the answer. The court called the jury back to the courtroom and provided a read-back of the complete testimony. Plaintiffs’ counsel moved to set aside the verdict on the grounds they were deprived of a fair trial, and for a judgment pursuant to CPLR 3001 declaring defense counsel had committed a fraud on the court. The motions were denied, and plaintiffs appealed. 2nd Dept. noted, “while defense counsel’s misrepresentation of the subject trial testimony during his summation was, at a minimum, inexcusably careless, it did not constitute a fraud on the court. Generally, an isolated incident of misconduct will not rise to the level of a fraud on the court particularly where, as here, the alleged fraud occurred in the context of a summation, which does not constitute evidence.” The Appellate Division held counsel’s conduct was not so pervasive or prejudicial as to have deprived the plaintiffs of a fair trial, and the Court had appropriately cured the issue by reading back the correct testimony. The declaratory relief sought was properly denied, as it did not relate to a dispute between the parties involving substantial legal interests for which a declaration of rights would have some practical effect, and as such there was no justiciable controversy under CPLR 3001.

Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
Source:  https://www.nycourts.gov/reporter/3dseries/2022/2022_04531.htm 

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

Legal Decisions of Note – Week of July 1 – 8, 2022

Submitted on Fri, 07/08/2022

These are recent case decisions regarding medical malpractice that we think are interesting. The firm of Sholes & Miller is not involved in these matters.

Hernandez v. City of NY (2nd Dept 2022):  In this Kings County case, Plaintiffs had requested an autopsy of their decedent at the defendant hospital.  The body was transferred to the Medical Examiner’s office, but thereafter released to the funeral home and embalmed.  Plaintiff made a complaint to the Hospital’s Guest Relations department, claiming the doctors failed to explain the circumstances of the decedent’s death, failed to perform an autopsy, and then allowed the funeral home to take the body and embalm it.  They commenced this action for violation of the common-law right of sepulcher.   Supreme Court granted a motion to compel the Guest Relations file, determining they were not privileged or confidential, and denied the request for a protective order.  The Hospital had submitted its Director of Quality Management’s affidavit, a privilege log, and produced the Guest Relations file in camera.  The Appellate Division found that the Supreme Court was correct – this showing was insufficient to demonstrate the documents were generated by or at the behest of the Quality Assurance committee.
https://www.nycourts.gov/reporter/3dseries/2022/2022_04296.htm

Schuster v. Sourour (2nd Dept 2022):  In this Nassau County case, the Court prevented a defendant from cross-examining the plaintiff’s expert witness regarding whether several doctors, who consulted on the decedent’s case prior to her diagnosis with lymphoma, also departed from accepted medical practice.  The Appellate Division noted that if the jury found those doctors departed from the standard of care, and this deprived the plaintiff of a chance for a better outcome, they could be found at fault along with the defendant, which was relevant under CPLR Art. 16.  The court’s error in precluding this testimony deprived the defendant of substantial justice, and a new trial was warranted.
https://www.nycourts.gov/reporter/3dseries/2022/2022_04317.htm

Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service
https://www.nycourts.gov/reporter/slip-service.shtml

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC

 

 

Understanding Guardianships in New York State: Article 81 of the Mental Hygiene Law

Submitted on Tue, 06/16/2020

The New York Times featured an article entitled, “As Cognition Slips, Financial Skills Are Often the First to Go.” According to the research cited therein, approximately 50% of adults in their 80s have dementia or some other cognitive impairment. Further, studies have revealed that “the ability to perform simple math problems, as well as handling financial matters, are typically one of the first set of skills to decline in diseases of the mind, like Alzheimer’s.” Unfortunately, this may leave the elderly vulnerable to poor decision-making or to exploitation by others.

Fortunately, there are protective mechanisms by which one can safeguard one’s finances or property, in the face of cognitive decline or impairment. Those include a durable power of attorney, which is a legally executed and witnessed document that allows an individual to appoint a competent adult to act on one’s behalf. A power of attorney can be granted for a specific, limited purpose or period of time. It can also be granted for much broader purposes such as handling all financial affairs on behalf of another person. It would remain in effect even when the individual (or “Principal”) is no longer able to make decisions due to health or mental capacity.

If an individual is receiving Social Security benefits, it is important to note that the U.S. Treasury Department does not recognize a power of attorney for the purpose of negotiating federal payments, including Social Security or SSI payments. In that instance, an individual or entity that wants to help manage another’s federal benefits must be designated as a Representative Payee. The designation requires approval from the Social Security Administration. Once approved, the Representative Payee is authorized to receive the federal benefits on behalf of the incapable or incompetent beneficiary.

An issue arises when an individual is no longer capable of managing his/her affairs, but does not have any protective mechanisms in place, including a power of attorney or a designated Representative Payee. In certain cases, one might have to resort to pursuing guardianship of an individual if there are no available alternatives.

The second form of guardianship is found within Article 81 of New York’s Mental Hygiene Law. An Article 81 guardianship is often used in the case of an individual with Alzheimer’s disease, dementia or some other extent of cognitive impairment. It is generally appropriate for an individual who at one time was competent, but now suffers from cognitive or functional limitations that are likely to cause the person harm. It may also be pursued for an intellectually disabled or developmentally disabled individual who may not fit into the requirements for a 17-A guardianship.

Unlike the Article 17-A guardianship, which gives broad powers to guardians that are similar to the authority a parent has over a child, Article 81 provides framework where the Court specifies exactly what decisions are made by the incapacitated person and what decisions are made by the guardian. This provides a tailored plan that meets the specific needs of the incapacitated person. A “Guardian of the Person” appointed under Article 81 can take care of assuring the person’s safety, health care, living arrangements, meals and/or other day-to-day activities and needs. A “Guardian of the Property” may also be authorized to manage the incapacitated person’s finances, property and other assets. The personal needs guardian and property guardian need not be the same individual. In some instances, it might be appropriate to have individuals act as co-guardians, with the joint goal of preserving the incapacitated person’s well-being and property affairs.

Article 81 allows for a broad range of individuals to petition for guardianship, including the alleged incapacitated person (AIP) him/herself, an adult relative, the CEO of a facility in which the AIP is a resident or patient, or any person otherwise concerned with the welfare of the AIP.

In order to obtain an Article 81 guardianship, the petitioner must file an order to show cause and verified petition with the Supreme Court for the county where the individual resides or is physically present. Typically, the Court will appoint an attorney for the alleged incapacitated person and/or a Court Evaluator, who is tasked with investigating the allegations in the petition.

The Court will schedule a hearing, and the AIP has a right to be present at the hearing. If, for any reason, the AIP is unable to attend the hearing at the courthouse, then the hearing will be conducted wherever the AIP is located (e.g. a nursing home, hospital, etc.). In some circumstances, the AIP’s presence at the hearing may be waived if it is found that the AIP is completely unable to participate in a hearing or if no meaningful participation will result from the AIP’s presence.

At the hearing, it must be proved that the appointment of a guardian is necessary and that the AIP either agrees to the appointment or is deemed incapacitated. An AIP is found to be incapacitated if he/she is unable to provide for himself/herself, and cannot understand the consequences of that inability. The parties will have the right to present evidence, and call and cross-examine witnesses, in order to establish whether a guardianship is appropriate. The burden is on the petitioner to prove that a guardian is necessary and that the AIP is either incapacitated or consents to the appointment.

If the petitioner is successful in establishing the need for a guardian, the Court will make certain findings, including the specific powers that an appointed guardian will be authorized with. The powers must be the least restrictive form of intervention aimed at addressing the specific needs of the AIP. The Court’s findings will be memorialized in an Order & Judgment, and thereafter, the appointed guardian must obtain a “Commission,” which is the official document that gives guardians the legal power to act on behalf of another adult. The guardian also completes an Oath and Designation, which attests that the guardian will carry out his/her responsibilities faithfully, honestly and carefully, and allows the county clerk to be served with any legal papers if the guardian cannot be found. In some cases, the Court may require the guardian to obtain a fiduciary bond, which is an added layer of protection for the AIP in case money is lost due to a guardian’s actions or mistakes. The Court may also require an appointed guardian to take a training course.

Any suitable adult can become a guardian. However, family members are typically given preference. A not-for-profit corporation, social services official, or a public agency can also be granted guardianship.

A guardian must file regular reports with the Court and visit the incapacitated person at least four times per year.

The guardianship lasts for the life of the incapacitated person. During the guardianship, the Court may be further petitioned to terminate the guardianship, modify the order and judgment, expand or remove powers given to the guardian, or remove the guardian from his/her appointment.

An Article 81 proceeding is generally more formal than an Article 17-A proceeding. It typically requires attorney involvement to guide petitioners through the legal process of obtaining a guardianship to safeguard an individual. Every situation is different, and it is always recommended that potential petitioners consult with a professional well-versed in Article 81 matters to help determine the best course of action for an individual’s situation and ongoing needs.

Virtual Mentorship on Career Choices for Haldane Students

Submitted on Mon, 06/15/2020

By Robert Irving Miller, June 2, 2020


Students from Haldane High School’s Aspire Internship Program enjoyed an online Zoom meeting that included Robert Irving Miller, founding partner of Sholes & Miller PLLC. This collaborative meeting was part of a three-week virtual mentoring program that was organized as a safe alternative to in-person student internships during this time of COVID-19 social distancing. The goal of the program is to encourage and advise students about how to achieve their professional dreams, specifically working towards their career goals. Mr. Miller focused on the fields of law and nursing, since he is an experienced attorney and also a registered nurse.

Melissa Seideman, Haldane High School Social Studies Teacher and Aspire Internship Coordinator hosted the Zoom meeting on June 4th, which included 45 seniors and juniors. Mr. Douglas Cunningham, editor and publisher of The Putnam County News and Recorder, joined them as an additional mentor. Students posted their questions on Zoom using the chat feature. The panelists found the students to be enthusiastic and serious about choosing careers paths in which they hope to enjoy and find success.

The students picked up tips on preparing for interviews, with the specific advice of coming prepared with questions to interview the prospective employer. Impressions made on the students included instilling the confidence to fulfill their dreams by following their interests to achieve success, and the idea that it is feasible to change careers, or have more than one career.

Reflecting on the meeting, Mr. Miller recalls some of the best advice that he was given while considering expanding his career path. He was told, “If there is something you want to do, do it.” Mr. Miller shared his story of how this simple but effective advice inspired him to start his journey towards becoming a lawyer.

This virtual meeting of the minds followed the theme of Haldane High School’s vision of a community of learners working to become self-directed, creative and adaptive problem solvers.


Robert Irving Miller, R.N., M.S., J.D. is a registered nurse and attorney in the Hudson Valley who has worked in ERs and ICUs, taught community health courses and served on a county board of health.

Living With Someone Who Has Dementia? A Few Words of Advice

Submitted on Mon, 06/15/2020

By Robert Irving Miller, June 8, 2020


Having a family member with dementia is usually very difficult and challenging. We often work with families of people with dementia, to assist with their legal needs. Over time, I have learned that there are ways to deal with the situation that might help, even if they do not necessarily make it any easier. Here are some of the things that I have learned over the years:

A new “behavior problem” in an elderly person is often actually a sign of a physical illness, or possibly a reaction to a medication. If an elderly person’s behavior changes significantly, you should bring the person to see a doctor. Examples of behavioral changes include increased anger, increased falls, yelling, lethargy, loss of appetite and aggressiveness. There are plenty of other ways in which behavior can change as well.

Often a person with dementia follows another person around everywhere they go. This can be extremely frustrating for the person being followed. It is not unusual behavior in dementia, because the individual is trying to understand what is happening and wants some assistance to know what to do next.

People fall. Elderly people fall more and are at greater risk of injury. However, keeping someone mobile is usually better than them being confined to a chair or a bed all day. Immobility may cause a rapid deterioration in a person’s condition and place her or him at risk of serious medical complications. It seems important to maintain mobility, even if there is a risk of a fall.

One of the best things a family living with a relative suffering from dementia can do is to become educated about how to communicate with and respond to that person. The federal Centers for Medicare and Medicaid Services (CMS) has a training program for nursing homes called “Hand in Hand Dementia Training.” If you search on the Internet for CMS Hand in Hand program, it will lead you to videos of the various training modules for the program. I have taken some of that training and find it very useful. Someone who is caring for a family member or living with a family member or friend who has dementia can benefit greatly from the Hand in Hand training. Of course, the person with dementia also benefits because he or she is assisted by more knowledgeable people. If you have a relative in a nursing home, it is also good to take the Hand in Hand training, to understand the disease process and reduce some of your stress as a result.

If the person with dementia is living at home or with relatives, there is always the possibility that he or she may wander off and become lost. Sometimes wandering cannot be predicted. It is important to anticipate that such wandering may occur. Experts advise having a “Safe Return Program” that includes notifying neighbors and nearby businesses about the possibility that the person will need assistance if he or she is seen walking around. Some people keep a log, noting the person’s clothing each day. Therefore, the police and neighbors can be told to be on the lookout for a person wearing a particular color shirt, a specified color pair of pants, and a certain color or style jacket. It is also useful to have printed photographs of the individual to hand out in the neighborhood in case the person with dementia disappears and later goes to a neighbor’s home or a nearby store. Showing someone the photo on your phone is okay, but there may be someone else on duty at the store, or someone else may be answering the door at a residence hours later, when the wandering person shows up. Of course, the paper with the photograph on it can also have the family telephone number and contact information, so that someone can come back and retrieve the wandering relative. However you do it, it is important to have a response plan for the possibility that your relative with dementia may disappear.


This blog is not intended to be specific legal or nursing advice for any particular situation. We strongly encourage you to communicate with your family physician and to develop a relationship with your county office for the aging, where you can obtain additional information about how to cope with the stress and difficulty of having someone in the household with dementia.

The Reality of COVID-19 – A Nurse’s Perspective

Submitted on Fri, 06/12/2020

By Robert Irving Miller, R.N., M.S., J.D., May 19, 2020


People who have never worked in an ICU have no idea how difficult it can be to keep a critically ill patient alive. Survival is not always possible. Illness, suffering and death are not abstractions to nurses. Nurses know all too well the high cost and ravaging effects of pulmonary infections and systemic sepsis. People who refuse to wear masks in public places, who deny the existence of a life-threatening virus, or don’t comply with social distancing recommendations most likely have no idea how much harm they are possibly causing, until they or someone they love becomes ill with the COVID-19 virus. They are literally putting their own and others’ lives at risk. They are also putting our economy at risk because infecting others will prolong the pandemic. Apparently, it is at least as easy to catch COVID-19 as it is to catch a head cold.

In a very ill person, coronavirus pneumonia interferes quite badly with the respiratory gas exchange between the lungs and the blood vessels. Not enough oxygen can get into the body, which is needed for the function of all the important organs, including the brain, kidneys and heart. The waste products of cellular metabolism need to leave the body or they accumulate in the blood as acids. Usually some acids leave the blood in the lungs, become carbon dioxide and are exhaled. But if a person cannot exhale efficiently, the acids accumulate and cause harm throughout the body. Acidosis can lead to death, just as can lack of oxygen. To facilitate breathing and the blood/lung gas exchange, the patient will often be put on a ventilator, a machine which mechanically moves breathable air into and out of the lungs.

A patient on a ventilator with COVID-19 pneumonia needs a plastic tube positioned from outside their mouth into their trachea, with a cuff around the outside of the tube that is inflated to prevent air and oxygen from the ventilator from escaping up and around the outside of the tube. It is called an endotracheal tube, which is connected to the ventilator by other tubing. The tube is pretty much intolerable to a conscious person, so the patient is sedated. The ventilator moves oxygenated air into the lungs and facilitates exhalation of carbon dioxide, if the patient’s lungs will permit that. Because the patient is unable to cough in the normal way while on the ventilator, and needs to have secretions removed from the lungs, a nurse or respiratory therapist will periodically disconnect the ventilator, put the ventilator alarm ‘on pause’ and introduce a suction catheter through the endotracheal tube and into the patient’s lungs. The procedure of having secretions sucked out of the body and into a plastic canister is extremely uncomfortable if the patient is conscious and causes coughing or choking reactions on the part of the patient.

The nurse talks to the patient a lot, even if it is not clear that the patient can hear. The nurse is always explaining to the patient what is about to be done to them, and why it is being done. The nurse tries to reassure and distract the patient, since the reality of being very ill with a fever, on a ventilator, in an ICU, and surrounded by people wearing hazmat outfits can be terrifying and depressing.

Of course, the nurse has reason for apprehension as well, given the risk of contracting the patient’s life-threatening infection. Health care providers have disproportionately become infected and many have died because of COVID-19.

This process of suctioning an intubated patient with COVID-19 poses a grave threat to the nurse and respiratory therapist. Suctioning may release the potentially lethal virus into the air. The nurse, therapists and others caring for the patient will wear a face mask or two, a fluid impermeable gown if one is available, gloves and a face shield. Nurses spend a lot of time at the bedside of a ventilated patient managing intravenous fluids, administering mediations, listening to the patient’s lungs, checking their heart rhythm on the cardiac monitor, and checking blood pressure, temperature and blood oxygen saturation levels. They reposition the patient regularly and may percuss the chest periodically with cupped, gloved hands to break up congestion in the lungs. They also make sure that the patient is getting nutrition through one tube or another, and attend to the patient’s hygiene, among many other things. Drawing blood from the patient, checking fingerstick blood sugars, communicating findings to the physicians and implementing orders are among the many activities of an ICU nurse.

If the patient is very fortunate, he or she will recover lung function and be weaned off the ventilator. Repositioning heavyset patients in a way that takes abdominal pressure off the chest has sometimes been found to be helpful, even to the point of eliminating the need for mechanical ventilation. Patients have reportedly required a week or more of mechanical ventilation before beginning to recover, all the while receiving attentive and continuous care around the clock from highly skilled and educated nurses.

The nurses, along with social workers and others, are also usually the COVID-19 patient’s only link to their family. Hospital staff members try to find opportunities for patients to see loved ones via video using phones or tablets. Sadly, those are often the last communications between the patient and their family.

Despite all these efforts, most patients placed on a ventilator do not recover. They die. Reports indicate that 80% of patients who required mechanical ventilation for COVID-19 died during a period of several weeks. COVID-19 patients reportedly are at risk of developing blood clotting complications in organs including the lungs, kidneys and brain. Some COVID-19 patients have had strokes.

Inside those uniforms: the gown; the mask; the gloves and the face shield; it is hot and uncomfortable. Nurses used to be able to wear separate masks for separate patients and had access to several masks each day. Now they often have to put their only mask in a paper bag at the end of the shift and use the same mask the next day – and the day after that, while standing next to, turning, washing, suctioning, medicating and consoling their COVID-19 infected patients. Changing out of their gown and other protective equipment, even for a restroom visit, is complicated and risky.

If a store won’t let you in without a face mask, they are trying to protect their customers and workers from an infection that may land them in an ICU, may put them through hell, and may ultimately kill them. You have no good reason whatsoever to refuse wearing a face covering in public. You have no legitimate reason to ignore social distancing recommendations.

As mentioned, nurses are well acquainted with suffering and death. Do your best to make sure that it is not your suffering and death they have to deal with next.

“Enough is Enough”: What You Need to Know About the Law

Submitted on Mon, 08/03/2015

The passage of the New York State Education Law that’s being called “Enough is Enough” means that all private colleges and universities in the state must amend their Title IX policies (“codes of conduct”) to incorporate the requirements of the new law, or risk losing state aid and assistance. A certificate of compliance with the provisions of the statute must be filed annually with the Education Department commencing on or before July 1, 2016. In addition, each institution must file its amended code of conduct with the state by July 1, 2016, and thereafter every ten years.

The stated purpose of the new law is to reduce the incidence of sexual assault, dating violence, domestic violence and stalking on campuses statewide. Toward this goal, institutions of higher learning must, among other things, adopt policies stating that the affirmative consent of both parties is required for sexual activity and that there will be amnesty for students who report sexual assault/violence that occurred while they were violating policies on drug and alcohol use. Institutions must also annually distribute to all students a “Students’ Bill of Rights” that informs victims of sexual violence of their legal rights, including their right to disclose the sexual assault/violence to both the school and outside law enforcement agencies such as the state police.

The law requires schools to provide numerous other disclosures to students who report (“reporting individuals”) sexual assault/violence. Institutions are also now required to make at least annual “campus climate assessments” to gauge the general awareness of the new law’s requirements. This will be done by anonymous questionnaires and the results published on the school website. Each school must also adopt an ongoing education campaign, consistent with the Clery Act and the Violence Against Women Act, to train all first year and transfer students on a number of topics concerning sexual assault, domestic violence, dating violence, and stalking.

The law is complex and detailed. The importance of timely and full compliance with it cannot be overstated, as state financial aid is at stake. Sholes & Miller has many years of experience in investigating all types of Title IX complaints on campus, involving students, faculty and employees. We can assist colleges and universities in rewriting their policies so as to be in compliance with the law, in providing Title IX training, and in investigating Title IX complaints.

– Sarah E. Sholes

Going To Court: Can I Do It Myself?

Submitted on Wed, 07/22/2015

We have seen some rather terrible things happen to people when they have gone to court without at least consulting an attorney. Therefore, we always recommend that people at least speak with an attorney before deciding to proceed without one.

New York State does, however, have “do-it-yourself forms,” and computer programs that are designed to help people fill out certain legal papers without the assistance of an attorney. Through a program called Access to Justice, the New York State court system provides programs and advice for people who wish to fill out the following court forms:

  1. Small Estate Affidavit;
  2. 17-A Guardianship Petition;
  3. Name Change Petition;
  4. Support Modification Petition;
  5. Paternity Petition;
  6. Support Enforcement/Violation Petition.

The information and forms can be found at: www.nycourthelp.gov

This and our other blogs are not intended to be legal advice for any particular situation.


This blog is not intended to be specific legal or nursing advice for any particular situation.