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Hospital law decisions of note.

NY: Did Misdiagnosed Pt. Continue Treatment? Did 'continuous Treatment' Trump Limitations?

CASE FACTS: Huntington Hospital Dolan Family Health Center, Inc., owns and operates both Huntington Hospital (Hospital) in Huntington and. Dolan Family Health Center (Dolan Center) in Greenlawn. On. December 29, 2002, the plaintiff's decedent (decedent) sought treatment in the ER at the Hospital. She was erroneously diagnosed with a urinary tract infection and discharged. Later that day, hospital personnel realized that the decedent needed to return to the hospital for emergency surgical intervention to repair a perforated colon caused by diverticulitis. As part of the surgical repair, a colostomy was performed. The decedent was discharged on January 18, 2003. During the summer of 2003, the decedent returned to the Hospital to see the surgeon who performed her surgery, with respect to having the colostomy reversed. She was directed by Hospital staff to see the surgeon at his private office, and was provided with his address. She met with the surgeon on November 18, 2003. She met with him again on. January 6, 2004, when he wrote a prescription for her to go to the Dolan Center for referral to a gastroenterologist to perform a colonoscopy prior to reversal of the colostomy, which was to be performed at the Hospital. On March 3, 2004, the decedent was examined at the Dolan Center, and an appointment was scheduled for her on May 4, 2004. She failed to keep that appointment, and she did not have her colostomy reversed before she died in 2011. On July 21, 2006, the decedent commenced suit against the defendant alleging, inter alia, that it committed medical malpractice in misdiagnosing her condition of diverticulitis, which led to the emergency colon surgery and subsequent hospitalization. The defendant moved for summary judgment dismissing the complaint on the ground that the suit was time-barred. In opposing the motion, the decedent argued that the continuous treatment doctrine tolled the statute of limitations. The Supreme court denied the defendant's motion.

COURT'S OPINION: The Supreme Court of New York, Second Department, held that so much of the defendant's motion for summary judgment dismissing the complaint as time-barred be affirmed. The court held, inter alia, that the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint as time-barred. By demonstrating that this suit was commenced after the expiration of the 2 1/2 year limitations period applicable to medical malpractice claims. In opposition, the decedent raised a triable issue of fact as to whether the treatment received from the defendant was "continuous," whether the treatment she received at the Dolan Center on March 3, 2004, was related to her original condition, which the court determined presented an issue of fact Salerno v. Huntington Hospital Dolan Family Health Center, Inc., 2012-060609, NYAPP 2 (8/8/2012)-NY

NY: Breast Reduction Surgery Complications: Judgment for Surgeon Affirmed on Appeal

CASE FACTS: Dr. James Miller, a board-certified plastic surgeon, performed numerous surgeries on Melissa Martino, including, in late September 2006, a bilateral breast reduction surgery, and at the same time, liposuction and brachioplasty. During the breast reduction surgery, Dr. Miller used a technique known as the pedicle technique, which involves preserving a pedicle of pyramid-shaped tissue attached to the nipple areolar complex (NAC). Melissa was released from the hospital and presented to Dr. Miller for follow-up care. On her third follow-up visit, Dr. Miller noticed that the NAC tissue on the right breast displayed some superficial skin loss and diminished sensation. The tissue continued to deteriorate and, by the end of November 2006, Dr. Miller informed Melissa that reconstructive surgery might be needed to correct the damage. Melissa ceased treating with Dr. Miller and filed suit for medical malpractice against him alleging that he was negligent in the manner in which surgery was performed and in the care he provided following surgery. Thereafter, Dr. Miller moved for summary judgment to dismiss the complaint. Melissa crossed-moved for summary judgment seeking to dismiss certain affirmative defenses raised by Dr. Miller. The Supreme Court granted Dr. Miller's motion and denied Melissa's motion. Melissa appealed.


COURT'S OPINION: The Supreme Court of New York, Third Department, affirmed the order of the trial court. The court held, inter alia, that as the movant for summary judgment, Dr. Miller was required to establish that during his treatment "there was no departure from accepted standards of practice or that Melissa was not injured thereby. In such a suit, the affidavit of a defendant physician may be sufficient to meet that burden if it is "detailed, specific and, factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of medical care." The court found that the defendant affirmed that there were no complications during the surgical procedure performed on Melissa, and that he comported with appropriate standards of medical care. He stated that he chose the pedicle surgical technique--one that he maintained is commonly employed in breast reduction surgical procedures performed in the United States--because "the viability of the NAC is maintained by preserving a pedicle of pyramid shaped tissue attached to the NAC." Conversely, the court found that the affidavit submitted by Melissa' expert medical witness, Dr. Peter Neumann, a board -certified plastic surgeon, restated many of the allegations set forth in Melissa's complaint. The court concluded that the affirmation of Melissa's expert failed to raise any triable issues of fact as to whether Dr. Miller deviated from the accepted standards of medical practice. Martino v. Miller, 2012-05688 NYAPP3 (7/19/2012)-NY

Meet the Editor & Publisher: A. David Tammelleo, JD. is a nationally recognized authority on health care law. Practicing law for over 40 years he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. he has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's Nursing Law's & Hospital Law's Regan Reports. his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer. have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers. Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.

A. David Tammelleo JD Editor & Publisher
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Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Article Type:Case overview
Geographic Code:1U2NY
Date:Sep 1, 2012
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