S.S. v New York City Health & Hosps. Corp. (Harlem Hosp.)
Annotate this CaseDecided on March 28, 2006
Supreme Court, New York County
S.S., an Infant, by Her Mother and Natural Guardian, Rohey Keita, Plaintiff,
against
New York City Health and Hospitals Corporation (Harlem Hospital); MOUNT HOPE MEDICAL GROUP, INC., MOUNT HOPE GROUP, INC., SIEGFRIED MAYER, M.D. and MARIA I. HOMER, M.D., Defendants.
105643/03
Stanley L. Sklar, J.
In this medical malpractice action, involving an infant who is allegedly brain damaged as a result of lead poisoning, defendant Siegfried Mayer, M.D., who provided medical treatment to the infant at the Mount Hope Medical Group, moves for an order permitting him to amend his answer to assert that plaintiff is precluded by the doctrine of collateral estoppel from recovering any amount of damages in this case and dismissing this action based on such doctrine, dismissing this case "under the doctrine of CPLR 3211 (a)(5), laches and res judicata", dismissing this case pursuant to CPLR 4517 (4) on the ground that testimony by plaintiff's expert in a prior action , commenced against, inter alia, the landlord and 7A Administrator of the lead contaminated apartment where the infant resided and still resides, requires dismissal because that expert allegedly established that no medical treatment was available, and granting Dr. Mayer an extension of time to move for summary judgment until 60 days after this "motion is decided and filed with notice of entry".
Codefendant New York City Health and Hospitals Corporation (HHC), which rendered pediatric care to the infant through Harlem Hospital ("the hospital"), where the infant was born and where her mother received pre-natal care, cross moves to add collateral estoppel as a defense and to dismiss this action based on that defense. HHC further seeks to renew a prior cross motion seeking dismissal of this case as to it on the ground that plaintiff failed to timely file a notice of claim, a cross motion which was denied by me via a November 2003 order. In the alternative HHC seeks to dismiss this action "pursuant to CPLR §3211 (a)(7)" (See Notice of cross motion) on the ground that it fails to state a cause of action .
This latter branch of the cross motion is based on HHC's assertion that HHC's alleged violations of various regulations give rise to no private right of action against it and because to require a hospital to provide adequate counseling to an infant's mother about the damages of lead would create such an onerous burden on health care providers that a cause of [*2]action alleging a failure to do so is as a matter of law not actionable. HHC also asserts that even if such a claim could be stated, it should not be sustained because juries would have to speculate as to whether the failure to provide information about the hazards of lead was a cause of an infant's injuries.
Then in its affirmation HHC, which did not in its notice of cross motion seek summary judgment, asserted that summary judgment dismissing the action must be granted to it because plaintiff will be unable to prove causation because the infant's mother during the time of the pre-natal care allegedly became aware of the risks of lead, and tried to get her landlord to remedy the condition of peeling paint, and because the mother frequently cleaned her apartment.
The branch of the cross motion which seeks to renew HHC's prior cross motion to dismiss the action based on the plaintiff's failure to timely file a notice of claim is denied. The basis for the motion to renew is that the Appellate Division, First Department's decision in Ocasio v New York City Health and Hospitals Corporation [14 AD3d 361 (1st Dept, 2005)] allegedly affected a change in the law. Such claim is without merit. The Appellate Division in that case simply determined that the trial court properly denied plaintiff's application for leave to file a late notice of claim because plaintiff failed to demonstrate a reasonable excuse for failing to timely file a late notice of claim and that defendant would not be substantially prejudiced by the delay. Clearly this is not new law. Rather, Ocasio simply involved the application of well settled principles to the particular facts of that case. Presumably in the instant case, where I denied HHC's prior application in November 2003, HHC only seeks to renew its prior application, rather than to reargue, by urging that I improperly exercised my discretion in permitting plaintiff to file a late notice of claim, because a motion to reargue has time limits. See CPLR 2221 (d)(3) If HHC felt aggrieved when it received a copy of my prior order it could have promptly moved to reargue or appealed. Since it chose not to do so, the application to "renew" is denied.
The branches of the motion and cross motion which seek amendment of the answers and dismissal based on collateral estoppel and/or res judicata are also denied. Those applications are based on the fact that there was a verdict against the plaintiff's landlord and the 7A Administrator in a prior action commenced by plaintiff in the Bronx against them and others seeking damages for injuries sustained by the infant plaintiff as a result of the ingestion and inhalation of lead, lead paint and lead paint dust in the apartment in which the infant resided from birth, through at least her mother's 2004 deposition in the instant action, and that plaintiff has been paid more than the amount the jury found plaintiff was entitled to.
It appears from the verdict sheet that the Bronx case went to the jury against only the landlord Harold Rosenbaum and Dennis Henriquez the building's 7A Administrator. The jury in essence found that there was paint containing lead in excess of the lawful limits in the apartment, that the two defendants knew or should have known that an infant under the age of seven resided there and that the infant suffered past and future damages totaling $ 100,000. That verdict was never reduced to judgment because prior to the verdict the plaintiff entered into a $375, 000/ $975,000 high/low agreement with Rosenbaum, whose insurer was then under liquidation by the Liquidation Bureau. The high/low agreement was contingent on there being a verdict for plaintiff or defendants. Pursuant to the agreement there would be no apportionment (See aff. in opp exh 9, pp 6, 12-13), no adjustment to present value of any future award, [*3]regardless of the number of years over which any such future item of damages was awarded (Id, p10), no costs or disbursements because "[t]his is a settlement amount, these are not judgment amounts" (Id 12) and no appeals or post-trial applications of any sort (Id 12). The settlement purported not to affect any other defendant, including any defaulting defendant. Id 11 It appears that a default was granted in 1997 against named defendants Sycam and Henriquez for failure to answer and that plaintiff's claims against named defendant the City of New York had been "withdrawn". See motion, exh H, ¶ 6
Once the jury reported its verdict the action was disposed of against Rosenbaum pursuant to an infant's compromise order signed in August 2003. Motion, exh K That order provided that the action was dismissed against the 7A Administrator, Sycam Corporation and The City of New York. Id, p 2 That order "authorized and empowered" plaintiff mother to execute, inter alia, a stipulation of discontinuance. A stipulation of discontinuance with prejudice as to all named defendants was executed by the appearing parties on August 19, 2003. Since the verdict was never reduced to judgment, and the action was settled as to Rosenbaum before the verdict was rendered and "dismissed" and "discontinued with prejudice" as to Henriquez, collateral estoppel does not apply. Peterson v Forkey, 50 AD2d 774 (1st Dept, 1975); See also State of Arizona v Schallock, 941 P2d 1275 (Sup Ct of A 211997) Also, res judicata does not apply since the parties in both actions are not the same. Accordingly the branches of the motion and cross motion seeking to amend the answer and then dismissal based on collateral estoppel and/or res judicata are denied.
The branch of defendant Dr. Mayer's motion seeking dismissal of this action based on laches is denied. According to this movant's counsel's memorandum of law certain of the infant's school records are allegedly unavailable. This memo even were it in affidavit form is inadequate to demonstrate that Dr. Mayer will be prejudiced. There is no claim that all of the infant's school records are missing or that her condition can not be ascertained through other means, e.g. medical records, other school records, including standardized tests, depositions of teachers and IME's. Moreover, laches does not apply to an action at law. Tejeda v Six Ten Management Corp., 15 AD3d 265 (1st Dept, 2005); Annenberg v Calvo, 7 AD3d 263 (1st Dept, 2004)
The branch of Dr. Mayer's motion which seeks to dismiss the action "[p]ursuant to CPLR 4517 (4)", because testimony of plaintiff's medical expert in the prior action allegedly established that no medical treatment in the form of chelation therapy was available and therefore plaintiff will be unable to prove a prima facie case, is denied. Initially it should be noted that CPLR § 4517 (a)(4) is simply an evidentiary rule as to when prior testimony of a physician may be used. It thus seems that what Dr. Mayer is actually seeking is summary judgment on the basis that plaintiff will not be able to prima facie establish either that Dr. Mayer was negligent in failing to ordering chelation therapy or that even if Dr. Mayer were otherwise negligent that chelation treatment could have cured the infant or improved her condition. This overlooks the fact that the issue on summary judgment is not what the plaintiff will be able to prima facie establish at trial but whether the movant has prima facie established his entitlement to summary judgment by eliminating all material issues raised by the pleadings. Dr. Mayer has failed to do this. Thus Dr. Mayer's application "pursuant to CPLR 4517 (a)(4)" must be denied regardless of the adequacy of the opposing papers. Indeed his counsel actually seeks an extension of time to [*4]move for summary judgment until 60 days after a decision on this motion is filed with notice of entry, because counsel believes it would conserve judicial resources if I granted Dr. Mayer's current motion without the need to address a summary judgment motion.
Dr. Mayer has not provided an expert's affidavit rebutting all the material issues raised by the pleadings including Dr. Mayer's alleged failures to timely take a proper history, to timely test the infant for lead in her blood, to correctly diagnose the infant's elevated lead levels in or about October 1992, when the infant was about 6 months of age, and to warn the mother of the risks posed by lead and how to avoid such risks. See Bill of Particulars That plaintiff's expert testified that the infant was ultimately diagnosed with an elevated lead level which was too low for chelation treatment, does not eliminate the possibility that appropriate medical care by Dr. Mayer could have eliminated or greatly reduced the infant's exposure to lead prior to her first lead blood test in 1994 when she was almost 2 ½ years old so as to have prevented or minimized injury to the infant. Dr. Mayer's counsel's attempt to assert new bases for his motion for the first time in reply papers is unavailing. See Dannasch v Bifulco, 184 AD2d 415 (1st Dept, 1992) Accordingly, Dr. Mayer's motion to dismiss pursuant to CPLR 4517 (a)(4) is denied.
Dr. Mayer's application for an extension of time to move for summary judgment until after the order on this decision is filed with notice of entry is denied. Movant had 60 days after the filing of the note of issue on May 23, 2005 to make all dispositive motions including one for summary judgment. That counsel wished to conserve judicial resources or counsel's resources is not an excuse for failing to move for summary judgment on all grounds available to counsel. Judicial resources could have been conserved if summary judgment had been included as a ground for dismissal because if one of the bases for dismissal were adequate, the other bases need not have been reached by me. CPLR 3212 was enacted to eliminate the trial delay caused by summary judgment motions occurring late in the course of litigation. Were I to permit successive post-note of issue dispositive motions where the grounds for such motions were known or could have been known at the time of the first dispositive post-note of issue motion, trials would be put off indefinitely. Thus the application for an extension of time to move for summary judgment is denied.
This leaves the branch of codefendant HHC's cross motion to dismiss pursuant to CPLR § 3211 (a)(7) for failure to state a cause of action. Initially it should be noted that previously because at the time plaintiff moved for leave to serve a late notice of claim some of her claims were already time-barred as to HHC, she limited that application to acts and omissions accruing on or and after April 23, 1993, two days short of the infant's first birthday. See cross motion exh D At that time I granted plaintiff leave to serve a late notice of claim as to claims accruing against HHC on and after April 23, 1993, and I granted HHC's cross motion to dismiss all claims accruing against HHC before April 23, 1993.
One basis for HHC's current cross motion to dismiss for failure to state a cause of action is predicated on HHC's counsel's assertion that the infant's lead levels were never high enough to warrant medical treatment in the form of chelation therapy thereby eliminating any claim regarding treatment of the elevated lead levels, and that therefore any other claim is necessarily based on alleged failures to perform preventive non-medical public health functions set forth in NY Public Health Law §§ 1370-1376 and implementing regulations. Defense counsel asserts that the failure to comply with such regulations and statutes which essentially [*5]require the health care providers to provide preventative education, also known as anticipatory guidance, to parents about lead risks and how to minimize and avoid such risks and to perform blood tests to determine if the child has an elevated lead level, and lead screening to ascertain if the child is at risk of being exposed to lead, gives rise to no private right of action and that accordingly the action must be dismissed. Defense counsel further maintains that the failure of a physician to provide preventive education to the parents of an infant gives rise to no cause of action for medical malpractice because to allow such a cause of action would "open the flood gates to litigation against health care workers". Caiazzo aff, ¶ 32 Defense counsel also asserts that such a cause of action should not exist because a jury will be required to speculate as to whether the alleged failure to provide preventative education was a cause of the child's injury, will have to decide who between the physician and parent is telling the truth about what was told, and will have to speculate as to whether the parent would have followed any advice given. Finally, HHC asserts that the alleged failure to provide preventative education to the mother is not viable because plaintiff mother "has failed to establish ... that any act or omission of the Harlem Hospital staff was the proximate cause of [the infant's] elevated blood lead levels". Caiazzo aff, p25 The basis for this assertion is that the plaintiff mother even if not given required lead education by HHC after the infant's birth became aware of the dangers of lead during her pregnancy and thus complained to the landlord about the paint condition before the infant was born and thereafter frequently mopped the apartment's floor. Thus HHC's counsel urges that plaintiff will not be able to establish that even had HHC given the required preventive counseling the infant's injuries would have been avoided. Then counsel who moved to dismiss for failure to state a cause of action pursuant to CPLR § 3211 (a)(7) (See Notice of Cross motion) asserted that HHC was entitled to "summary judgment". See Caiazzo aff, ¶ 48
HHC's application to dismiss the complaint for "failure to state a cause of action" and/or for summary judgment is denied. Whether or not plaintiff has a private right of action is irrelevant here where the allegations against HHC in the complaint are based solely on its negligence and medical malpractice based on its treatment of the infant (See complaint ¶ 16). See Doe v Lam, 268 AD2d 206 (1st Dept, 2000) HHC's reliance on Pelaez v Seide (2 NY3d 186) is misplaced because the hospital through its physicians and staff had a duty to the infant who was its patient. Moreover that plaintiff allegedly will be unable to prove causation is not the standard on a summary judgment motion. The burden is on the movant in the first instance to prima facie prove its entitlement to summary judgment by eliminating all material issues raised by the pleadings. This HHC has failed to do. There is no affidavit provided by a qualified medical expert opining for example that HHC had no duty to provide lead screening earlier, test the infant's blood earlier for lead, or to provide anticipatory guidance earlier. Nor has an expert's affidavit been provided by HHC on the issue of causation.
I note however that HHC has provided a copy of an expert's affirmation used by plaintiff in support of her prior motion for leave to serve a late notice of claim. That expert, Dr. Douglas Savino, opined based on a 1991 Center for Disease Control ("CDC") statement entitled "Preventing Lead Poisoning in Young Children" that in 1991 certain CDC recommendations [*6]became generally accepted practice among U.S. pediatricians[FN1]. According to Dr. Savino, pediatric health care workers were required to start asking screening questions of parents at every visit to ascertain whether the child was at high risk for lead exposure. Those at the highest risk for lead exposure were to be tested for the presence of lead in their blood beginning at 6 months of age. Otherwise, blood tests for lead should start at 12-15 months of age. In addition, Dr. Savino opined that anticipatory guidance was required. In other words the pediatric health care workers were required to educate the parents about the risks of lead exposure and the steps needed to avoid such exposure. Dr. Savino asserted that HHC departed from accepted standards of practice in failing to timely provide anticipatory guidance, lead screening and lead blood testing. That expert further opined that based on the condition of the plaintiff's apartment the infant was exposed to excessive lead levels beginning when she could crawl at about the age of six months and gradually became lead poisoned, and that the failures to timely test the infant's blood for lead and to provide anticipatory guidance by, inter alia, questioning the parents about the child's risk of lead exposure and instructing the parents to keep the infant away from peeling or chewable painted surfaces such as window sills, frequently wash the child's toys and hands and to clean the floors and window sills with a high phosphate solution caused the infant's neurological injury.
That the infant's lead level was not high enough for chelation therapy does not entitle HHC to dismissal of this case since HHC failed to prima facie establish that had the infant been screened earlier to determine whether she was at high risk for lead exposure, tested earlier for the presence of lead in her blood, at minimum around the infant's first and second birthdays, and been given required anticipatory guidance (Ibid), the infant would not have avoided injury. That the infant was given a FEP test instead of a test to detect the presence of lead in her blood at about the age of one does not mean that the infant had no lead in her blood at that time. According to one of plaintiff's experts only chronic lead poisoning of at least 90 days duration will result in a positive FEP test. See Notice of motion, exh J, p 19 Moreover, one of HHC's physicians deposed by plaintiff conceded that the hospital's custom and practice in 1992 was to do a finger stick lead blood test at one and two years of age. Cross motion, exh I, p 28
As testified to by one of plaintiff's experts in the trial of the prior action, lead levels can diminish because blood has a half life of four to five weeks (See Motion, exh I, p 76); thus the lead comes out by itself (Id 107). Therefore, if earlier timely lead blood testing and anticipatory guidance had been given, a jury could find that injury to the child could have been avoided or lessened if the jury believed that the mother would have taken the necessary steps to minimize her child's contact with the lead paint and dust. That the mother, who allegedly could not read English (See Keta EBT, p 49), gained some knowledge of the dangers of lead while she was pregnant, and thus mopped the floor regularly does not mean that she was aware of all the steps needed to avoid injury to her child. Indeed, she asserts in her affidavit in opposition to the defendants' applications that her knowledge of the dangers of lead was limited as was her knowledge about how to address the lead condition. Further, had she been advised earlier after [*7]timely lead testing that her child had lead in her blood, a jury could find that the point would have been driven home to her by HHC's staff so as to cause her to increase her level of vigilance to avoid an increase in the infant's blood's lead content.
As to HHC's claims that the jury will have to decide whether the mother is credible does not mandate dismissal of this case. Issues of credibility are present in most cases, and a jury's job is to resolve such issues. Nor do I find as a matter of law on the record presented here that the alleged duty imposed on health care providers regarding lead screening, blood testing and anticipatory guidance is unduly onerous or would open the flood gates to litigation.
In light of the foregoing HHC's cross motion to dismiss the action for failure to state a cause of action is denied.
Settle order.
Dated: March 28 , 2006
60 Centre Street
New York, NY
J.S.C.
Footnotes
Footnote 1: Many of these recommendations thereafter in essence became codified in New York (See 10 NYCRR §§ 67-1.1, 67-1.2) before the infant in this case was diagnosed with an elevated lead content in her blood.
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