New York Appellate Court Denies Summary Judgment To Medical Malpractice Defendants Who May Have Improperly Transferred Patient To Hospice Care

The New York medical malpractice plaintiff alleged that the defendant emergency room physician was negilgent in referring him to hospice care where he remained for over 18 months when he did not require such care.

The trial court denied defendants St. Barnabas Hospital, Quarry Road Emergency Service, P.C. and Steven Winograd, M.D.’s motion for summary judgment dismissing the causes of action for medical malpractice, loss of services, and negligent infliction of emotional distress as against them. The New York Appellate Division, First Department unanimously affirmed the denial of summary judgment in its decision filed on January 11, 2024 stating:

Defendants failed to demonstrate, prima facie, either the absence of any departure for the accepted medical practice, or that any departure was not a proximate cause of the plaintiffs’ injuries. According to defendants’ expert, the applicable standard of care required an emergency medicine physician to evaluate the patient, take a medical history, and determine an appropriate disposition. However, there is conflicting evidence as to whether defendant Steven Winograd, M.D., departed from accepted practice by improperly recording plaintiff’s self-reported pancreatic cancer as stage IV, resulting in plaintiff’s transfer to hospice. Nothing in the record supports defendants’ contention that plaintiff informed Dr. Winograd that his pancreatic cancer was at stage IV, which plaintiff explicitly denied at his deposition, testifying that defendants staged his cancer. Defendants’ expert’s conclusory opinion that this alleged departure could not have caused any of plaintiff’s claimed injuries was also insufficient to establish, prima facie, their entitlement to judgment on causation.

Even if defendants had met their initial burden, plaintiffs’ expert affirmation raised triable issues of fact as to whether plaintiff’s claimed injuries were caused by defendants’ departure from accepted practice. Plaintiffs’ expert opined that the standard of care required emergency room physicians to, among other things, order an oncology consult when a patient reported a history of pancreatic cancer, which defendants did not do, thus raising an issue of fact as to whether they departed from accepted practice.

On the issue of causation, plaintiffs’ expert further opined that it was a departure for Dr. Winograd not to confirm that plaintiff had stage IV pancreatic cancer before referring him to hospice, where plaintiff remained for over 18 months under the false premise that he required end of life care. The record supports plaintiffs’ contention that but for this incorrect diagnosis, plaintiff would not have been allowed in hospice, where he allegedly suffered mental anguish, chemical dependency, and other injuries.

Summary judgment dismissing the loss of consortium claim was properly denied. The fact that plaintiffs had not lived together since 1991 did not entitle defendants to judgment as a matter of law. Mrs. Candelario testified that despite living apart plaintiffs continued to provide each other with practical and emotional support, affection, and companionship sufficient to articulate a loss of consortium claim based on plaintiff’s alleged misdiagnosis and resulting hospice stay.

Summary judgment dismissing plaintiff’s cause of action for negligent infliction of emotional distress was also properly denied. Plaintiff’s claimed emotional anguish was a direct result of defendants’ alleged misdiagnosis of stage IV pancreatic cancer resulting in plaintiff’s transfer to hospice, during which he believed that he only had months to live.

Source Candelario v MJHS Hospice & Palliative Care, Inc., 2024 NY Slip Op 00125. 

If you or a loved one suffered harm due to hospice malpractice in New York or in another U.S. state, you should promptly find a New York medical malpractice attorney or a medical malpractice attorney in your state who may investigate your hospice malpractice claim for you and represent you or your loved one in a hospice malpractice case, if appropriate.

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