Arons v. Jutkowitz, ___ N.Y. ___ (2007), a medical malpractice action, discussed the issue of a personal injury plaintiff's refusal to sign HIPAA compliant authorizations permitting the treating physicians to discuss the plaintiff's medical condition and treatment with defense counsel. The trial court there issued an order compelling the plaintiff to do so, thus allowing the defense the opportunity to speak with the plaintiff's treating providers. The Court of Appeals held that this was entirely proper for the trial court to do. The Court did not go one step further and require the treating providers to discuss the plaintiff's condition and treatment with the defense counsel if they do not wish to. However, this case does, at the least, support a defendant's position that authorizations allowing speaking authority with the treating providers must be forthcoming.

The defense moved for summary judgment in a one- car motor vehicle accident case which occurred at that defendant's gas station. The defendant gas station's motion was supported by an affidavit of a professional engineer who stated that the defendant's parking lot was not improperly designed. The Fourth Department held in Paul v. Cooper, 2007 WL 4144920 that the expert's affidavit was insufficient to support the motion for summary judgment because the affidavit indicated only that he was a "professional engineer" with no further information offered to establish any specialized knowledge, expertise, training or education with respect to the relevant subject matter.

Herrgesell v. Genesee Hospital, 2007 WL 4144924 involved a wrongful death action arising out of alleged medical malpractice. The defendant health care providers there moved for summary judgment. The plaintiff's decedent allegedly contracted hepatitis B while caring for her father who was infected with that disease. The defendants were the various health care providers for the plaintiff's decedent's father. The Fourth Department held that those health care providers who did not establish a physician-patient relationship with the plaintiff daughter prior to her contracting hepatitis B owed no duty to warn the daughter of the risks associated with caring for her infected father. As to such defendants, the Court held that even if the medical providers knew that the non- patient was caring for the infected person, no duty arises absent the establishment of a physician- patient relationship.

Readers of this newsletter are likely aware that policy exclusions are afforded a strict and narrow construction in New York State. The Fourth Department continued this trend in Gallo v. Mid State Mutual Insurance Company, 2000 WL 4144928. There, the plaintiff's building was damaged when the water pipes at his property froze. The plaintiff's policy with the defendant carrier covered freezing of a plumbing system so long as the insured had "used reasonable care" to maintain heating the building. Utility company records indicated that there was no service to the building at the time the incident occurred. However, the plaintiff's property manager testified that, prior to the loss, he had illegally restored electric power to the building by tampering with the electric meter. Under these facts, the Court granted summary judgment against the defendant-carrier construing the "reasonable care" language against the defendant insurer.

White v. Continental Casualty Company, ___ N.Y. ___ (2007) involved a claim by oft-used IME physician for benefits under his disability policy with the defendant. Dr. White contended that he had sustained an injury which prohibited him from performing surgery. Dr. White further contended that this constituted a "total disability" within the meaning of his disability income policy. The Court of Appeals held, however, that because Dr. White was able to earn a living as an expert witness, IME physician and consultant, his condition did not constitute a "total disability" as defined in the policy. The policy definition of "total disability" was that the claimant be unable to "perform the duties of any gainful occupation for which he is reasonably fitted by education, training, or experience."

The Fourth Department had occasion to consider two cases involving destruction of potentially relevant evidence by defendants and issued two decisions on the issue on November 23, 2007. One of these was Call v. Banner Medals, Inc., 2007 WL 4144899. There, the plaintiff brought a personal injury action arising out of alleged products liability when a truck ramp collapsed injuring the plaintiff. One of the defendants, West Seneca Welding, had apparently disposed of the ramp at issue. The plaintiff moved for spoliation sanctions including striking of the spoliating defendant's answer. West Seneca Welding not only avoided having its answer struck, but prevailed on a cross motion for summary judgment establishing that it did not perform any maintenance or repair work on the ramp before plaintiff's accident despite the fact that the ramp was unavailable to be examined. Similarly, in Piatko v. Children's Hospital of Buffalo, 2007 WL 4144915, the defendant hospital in a medical malpractice action was able to secure summary judgment in its favor despite the plaintiff having raised the issue of the hospital's role in the destruction of video footage of the plaintiff's surgery.

Vanderpool v. Adirondack Neurosurgical Specialists, P.C. involved an appeal from a defense verdict after the trial of a medical malpractice action. The plaintiff alleged that the defendant physician had performed unnecessary fusion surgery as a result of the physician's failure to properly diagnose the plaintiff's condition. The trial court charged the jury that the defendant-physician could not be found liable for an "error in judgment" if he acted as a reasonably prudent doctor would. Upon plaintiff's appeal, the Appellate Division, Fourth Department held that the correct standard to be charged was whether the defendant physician's conduct constituted a deviation from medically accepted standards of care. This fairly benign distinction was sufficient to warrant an entire new trial in this action.

Anania v. Verdgeline, 2007 WL 4144902 involved a personal injury action arising out of a motor vehicle accident. The claimed injury was carpal tunnel syndrome. The defense moved for summary judgment under the "serious injury" tort threshold. The defense submitted evidence that the plaintiff's complaints were related to a prior condition. This shifted the burden on the plaintiff to create a question of fact as to the issue of causation. The plaintiff did submit an affidavit of the treating orthopedic surgeon stating that the plaintiff's carpal tunnel syndrome and resulting surgery were causally related to the motor vehicle accident. This was deemed insufficient to create a question of fact. The Appellate Division, Fourth Department held that the treating physician's affidavit was not supported by the requisite competent medical evidence based upon objective medical findings and diagnostic tests.

Jones v. Lei-Ti Too, LLC, 2007 WL 4144896 involved a wrongful death action arising out of a sledding accident which occurred on the defendant's property. The defendant moved for summary judgment under General Obligations Law §9-103 which immunizes property owners from liability for permitting certain recreational activities including sledding on their property. The trial court denied summary judgment however, finding an exception where permission to pursue such activities was granted for consideration. The Appellate Division, Fourth Department affirmed finding that because there was a question of fact as to whether the property owner required consideration for permission to engage in a sledding activity, summary judgment was inappropriate.

Prepared by Scott R. Orndoff