Medical malpractice “where is the proximate cause” conundrum

Mi Jung Kim v Lewin, 2019 NY Slip Op 06487 (2d Dept. 2019)

This is a strange medical malpractice case. The allegation is that a doctor, known in the NY NF and WC circles performed back surgery, knew a second surgery was necessary following the post-op MRI and failed to immediately advise the Plaintiff about the same.

One month following MRI, the doctor told Plaintiff she needed another back surgery. She went to another doctor and it was performed at that date.

The jury found a departure and proximate cause. Supreme Court set aside the verdict and the App. Div. affirmed the vacatur of the verdict.

“Here, considering the evidence in the light most favorable to the plaintiff, there is a rational process by which the jury could have found that the defendant departed from accepted community standards of care by failing to recommend surgery to the plaintiff when he visited her at the rehabilitation facility on August 15, 2010, after reviewing the post-operative MRI study of her lumbar spine. The plaintiff testified that the defendant did not discuss surgery during that visit, and her expert testified that the defendant’s failure to present surgical alternatives to the plaintiff “in a timely fashion” after reviewing the post-operative MRI was a departure from accepted community standards of care.

However, there is no rational process by which the jury could have found that the defendant’s departure from the standard of care proximately caused the plaintiff’s injuries (see Gayle v Newman, 91 AD2d 75, 80; cf. Fellin v Sahgal, 35 AD3d at 802). The plaintiff’s expert opined that the eight-month delay between the August 2010 post-operative MRI, which indicated that there was still compression on the nerve, and the second surgery in April 2011 caused the plaintiff’s injuries and resulted in a “worse outcome.” However, it is uncontested that she was appropriately advised of surgical options on September 13, 2010. Thus, the plaintiff decided to cease treatment with the defendant after the November 2010 visit and to begin receiving treatment from another physician in December 2010. The plaintiff’s expert failed to present any evidence to show that the approximate one-month period between the August 2010 visit following the post-operative MRI and the defendant’s advice about surgery on September 13, 2010, was a substantial factor in causing her injuries (see Previtera v Nath, 164 AD3d 848, 851).”

I have to say good job to the plaintiff attorney for beating a 4401 dismissal and getting a jury to award money on this case. The trial court and the Appellate Division were correct in setting aside the verdict. But this is a case that makes you scratch your head.

Put on a case at your own risk after the Plaintiff rests

People v Stone, 2015 NY Slip Op 08205 (3d Dept. 2015)

The defendant cured the deficiencies in Plaintiff’s proof through putting on an affirmative case.  The risk of putting on a case is quite apparent here.

“Here, the victim testified to dozens of incidents wherein defendant [engaged in acts].  The victim’s sister was present for some of those incidents and confirmed that they had occurred. The victim further testified that the bulk of those incidents occurred after she turned six or seven, meaning that they would have occurred no earlier than 2005. Defendant’s current spouse, in turn, testified that defendant was born in 1979, making her well over 18 years of age when the abuse occurred. The fact that defendant called her spouse to testify is of no moment, as “a defendant who does not rest after the court fails to grant a motion to dismiss at the close of the People’s case . . . proceeds with the risk that he [or she] will inadvertently supply a deficiency in the People’s case””

Judgment as a matter of law due to opening statement

Okunubi v City of New York, 2013 NY Slip Op 05886 (2d Dept. 2013)

This must be the worst nightmare of every practitioner.  I think I would not sleep for a week if this happened to me.

“An application for judgment as a matter of law may be made at the close of an opposing party’s case, or at any time on the basis of admissions (see CPLR 4401). The grant of such an application prior to the close of the opposing party’s case is generally disfavored (see Kamanou v Bert, 94 AD3d 704De Vito v Katsch, 157 AD2d 413, 416-417). However, judgment as a matter of law may be warranted prior to the presentation of any evidence if the plaintiff has, “by some admission or statement of fact, so completely compromised his or her case that the court was justified in awarding judgment as a matter of law to one or more defendants” (Beshay v Eberhart L.P. No. 1, 69 AD3d 779, 781; see Ballantyne v City of New York, 19 AD3d 440Schomaker v Pecoraro, 237 AD2d 424, 425-26; see also Hoffman House, N.Y. v Foote, 172 NY 348, 350; Hardy v State of New York, 294 AD2d 400, 401; Fuller v New York City Bd. of Educ., 206 AD2d 452, 453; De Vito v Katsch, 157 AD2d at 416-417). [*2]

Here, prior to the presentation of evidence, the plaintiff’s counsel made certain admissions and statements of fact which demonstrated, as a matter of law, that the police had probable cause to arrest the plaintiff. Probable cause to believe that a person committed a crime is a complete defense to causes of action alleging false arrest and malicious prosecution” 


“This admission by the plaintiff, through his counsel, “so completely compromised” his position that the police lacked probable cause to arrest him, that the Supreme Court was justified in awarding judgment as a matter of law to the City “

A less than credible Plaintiff sinks his own case

Bennice v Randall, 2010 NY Slip Op 02253 (4th Dept. 2010)

This was a summary jury trial in a 5102(d) matter – no fault’s increasingly grumpy sister.  The Supreme Court granted Plaintiff’s motion for judgment as a matter of law, following an adverse jury award, on the basis that a jury could not rationally find that Defendant’s admitted negligence was not a substantial factor in causing Plaintiff’s injuries.  The Appellate Division reversed and reinstated the jury’s verdict.

I included this case in here because I like how the Appellate Division characterized the testimony of the Plaintiff:

“Here, there is a rational process by which the jury could have found that defendant’s negligence was not a substantial factor in causing plaintiff’s alleged injuries. Plaintiff presented the testimony of several medical experts who examined him and concluded that the cervical and lumbar injuries at issue were causally related to the accident. Nevertheless, the lack of candor demonstrated by plaintiff when questioned on cross-examination about his preexisting injuries, together with his failure to advise some of those experts of his history of back pain, could have led the jury to reject the opinions of those experts (see Salisbury v Christian, 68 AD3d 1664, 1665). Further, the jury was entitled to credit the report of defendants’ expert neurologist, who concluded that plaintiff’s complaints of pain were subjective and could not be linked to the accident. The further allegation of plaintiff that the accident caused him to sustain urinary problems was not conclusively supported by his treating urologist and, in any event, that allegation was contradicted by defendants’ expert. Thus, we agree with defendants that the JHO erred in granting the motion”