Legal Decisions of Note – Week of Nov. 17, 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living will), the 2016 healthcare proxy or the 2017 FLST governed this dispute and whether the 2016 health care proxy was revoked by decedent through conversations with his agents, pursuant to Public Health Law § 2985(a).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.”

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

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