The Supreme Court of the State of New York Appellate Division, Fourth Department (“New York Appellate Court”) held in its Memoradum and Opinion dated February 7, 2020: “we conclude that “‘[t]he conflicting opinions of the experts for plaintiff and defendant[s] with respect to . . . [ECMC’s and Myers’] alleged deviation[s] from the accepted standard of medical care, present credibility issues that cannot be resolved on a motion for summary judgment’””
The Underlying Facts
The decedent’s surgery was canceled after the defendant nurse employed by the defendant hospital (“ECMC”) and the defendant anesthesiologist were unable to intubate the decedent and the decedent was subsequently discharged from ECMC. The decedent returned a few hours later with difficulty breathing and angioedema of the neck and tongue, and an emergency tracheostomy was performed. The decedent sustained a hypoxic anoxic brain injury and remained in the hospital for over one month before he suffered acute respiratory failure and died.
The plaintiff filed her New York medical malpractice wrongful death action against ECMC and a separate action against the other defendants, seeking damages for medical malpractice and wrongful death arising from the death of her husband (the decedent).
The trial court granted the defendants’ motion for summary judgment, and the plaintiff appealed.
New York Appellate Court Opinion
The New York Appellate Court stated that on a motion for summary judgment in a New York medical malpractice action, a defendant bears the initial burden of establishing either that there was no deviation or departure from the applicable standard of care or that any alleged departure did not proximately cause the plaintiff’s injuries. The New York Appellate Court held that the defendants in the case it was deciding had established their prima facie entitlement to judgment as a matter of law, which shifted the burden to the plaintiff to submit evidentiary facts or materials to rebut the prima facie showing by the defendants that the defendants were not negligent in treating the decedent so as to demonstrate the existence of a triable issue of fact.
The New York Appellate Court stated that the plaintiff’s expert anesthesiologist opined that, based on, the decedent’s baseline oxygen saturation, his oxygen saturation at the time of discharge from ECMC, and the decedent’s personal risk factors, the defendants deviated from the appropriate standard of care by discharging the decedent. The plaintiff’s expert anesthesiologist further opined that the deviation from the standard of care proximately caused the decedent’s death because the decedent’s hypoxic event could have been avoided had the decedent not been discharged because he would have received a more timely tracheostomy. Thus, the New York Appellate Court held “‘[t]he conflicting opinions of the experts for plaintiff and defendant[s] with respect to . . . [ECMC’s and Myers’] alleged deviation[s] from the accepted standard of medical care, present credibility issues that cannot be resolved on a motion for summary judgment’.”
The New York Appellate Court further held: “ECMC correctly concedes that an issue of fact exists whether Myers was its employee and thus whether ECMC may be held vicariously liable for Myers’ conduct.”
Source Edwards v. Myers, 832 CA 18-02363.
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