The webinar, “Screening and Investigation Potential Medical Malpractice Claims,” is co-hosted by  Brian Zorn, Faraci Lange partner, and Elizabeth Zorn, legal nurse consultant, as part of the American Association of Legal Nurse Consultants’ (AALNC) monthly educational webinar series.

Brian Zorn is one of Faraci Lange’s senior trial attorneys focusing his practice on medical malpractice.  Elizabeth Zorn, BSN, RN, LNCC, has been an AALNC member for more than 15 years and recently began a three-year term on its board of directors.

The AALNC is a not-for-profit membership organization dedicated to the professional enhancement and growth of registered nurses practicing in the specialty of legal nurse consulting and to advancing this nursing specialty. AALNC is the preeminent resource for professionals with an interest in the legal nurse consulting arena including novice and veteran legal nurse consultants.

The Sept. 20 webinar costs $35 for AALNC members and $50 for non-members. To register, people can visit www.aalnc.org/edupro/WebinarSeries.cfm.

The attorneys named are:

• Matthew F. Belanger, in the practice areas of personal injury litigation and product liability litigation. Belanger, a resident of Brighton, has been named to Best Lawyers since 2008.
• John A. Falk, in medical malpractice law, personal injury litigation and product liability litigation. The Brighton resident also was named to Best Lawyers in 2009.
• Angelo G. Faraci, in legal malpractice law, medical malpractice law, personal injury litigation and product liability litigation. Faraci, who resides in Rochester, has been listed in Best Lawyers since its inception in 1983.
• Paul K. Lange, in medical malpractice law, personal injury litigation and product liability litigation. First named to Best Lawyers in 2001, Lange resides in Rochester.
• Joseph A. Regan, in medical malpractice law, personal injury litigation and product liability litigation. The Rochester resident has been named to Best Lawyers since 2005.
• Stephen G. Schwarz, in medical malpractice law, personal injury litigation and product liability litigation. The Fairport resident was first named to Best Lawyers in 1999.
• Brian M. Zorn, in medical malpractice law, personal injury litigation and product liability litigation. Zorn, who resides in Victor, has been named to Best Lawyers since 1995.

Best Lawyers, the oldest and most respected peer-review publication in the legal profession, is based on an exhaustive annual survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

Because Best Lawyers is based on a peer-review survey, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Steven Naifeh, president of Best Lawyers, said, “We continue to believe – as we have believed for 28 years – that recognition by one’s peers is the most meaningful form of recognition in the legal profession.”

Previously employed as an associate at the New York City law firm of Weitz & Luxenberg, Matarazzo focuses her practice on toxic torts, environmental law, medical malpractice and products liability.

Matarazzo earned her law degree from the Rutgers University School of Law Newark and her bachelor’s degree from the University of Vermont. She resides in the city of Rochester, N.Y.

The award is given to attorneys who are active in the community, demonstrate a commitment to the community through activities or pro bono work, and who demonstrate leadership and above-average achievements in day-to-day legal assignments. 

Jordan focuses her practice on medical malpractice, complex tort and toxic tort, premises liability, products liability and automotive negligence cases. She is a resident of Farmington, N.Y.

Of course, fairness is a two way street: the time periods are generally crafted to give the party bringing the lawsuit sufficient time to learn they have been harmed. Indeed, in many States, the time periods do not begin to run until a person knows or reasonably should know that they have been injured. It is in this regard that the New York statute of limitations in medical malpractice cases is so unfair.

In malpractice claims in New York, the statute of limitations is 2 ½ years from the date of the malpractice and there is no discovery rule. This means that in many otherwise clear and valid cases, a person’s time limit to sue runs before they ever knew they were injured. We are currently representing a Central New York family in a case that graphically illustrates the unfairness of New York’s malpractice statute of limitation.

Our client is a much decorated Vietnam veteran who had a history of kidney stones. In the Fall of 2004, he developed some symptoms consistent with the redevelopment of a kidney stone. His health care provider ordered a CT scan, which showed a tiny (2 mm) kidney stone. It also showed a 2.5 cm. mass entirely within his right kidney that was suspicious for a malignancy. The doctor who read the CT scan recommended an ultrasound for a more definitive evaluation. Our client was told about the small kidney stone, but was not told anything about the mass or the need for an ultrasound, which was never ordered.

Although our client continued to be treated at that clinic regularly, nobody at the clinic recognized that he had a kidney mass that needed further work-up and nobody at the clinic ever arranged for the ultrasound that the radiologist said was necessary. Since our client was never told about the kidney mass, he had no idea that he needed any further work-up or treatment.

In August 2008, our client developed some intense back pain that testing showed was not orthopedic. Eventually, a doctor at the clinic, looking through the chart, noticed the September 2004 CT scan and realized that our client had never been sent for the recommended ultrasound. It was ordered immediately and it showed that the small 2.5 cm mass had grown to the size of a softball and had spread beyond his kidney to his ribs and liver.

It is clear that if our client had been properly followed in September 2004, his kidney tumor would have been diagnosed before it spread and his chance of a complete cure through the removal of the kidney was nearly 100%. Because of the four year delay, his tumor spread beyond the kidney and as a result, he is unlikely to survive beyond the end of this year.

Because our client was getting his medical care through the Veterans Administration from health care providers that were employed by the United States Government, he and his family have a remedy in this case. This is because the 2 year statute of limitations imposed by federal statute for claims against the government does not begin to run until the injured person knew or should have known of the injury. Here, our client did not learn of the malpractice until August 2008, so he was able to timely file his claim against the United States.

However, had he been receiving his health care not at the VA, but rather at a private clinic, our client and his family would have no legal remedy despite the obvious medical malpractice because the statute of limitations in New York, which is measured from the date of the malpractice, would have run more that a year and one half before our client ever knew that his health care providers discovered a mass in his kidney but failed to do anything about it.

New York courts have recognized the unfairness of being time-barred before the injured party ever knew of the malpractice, but have largely argued that changing the rule and imposing a discovery rule is not for the Courts, but for the Legislature. Courts have attempted to ameliorate the harshness through the judicially-created “continuous treatment doctrine”, which can, in some circumstances, extend the limitations period beyond 2 ½ years. However, that doctrine offers little or no protection to people like my client because while he was still being seen in the same medical clinic, he was not being treated by them for kidney problems. In the case of a failure to diagnose a disease like cancer, the continuous treatment rules are of little help. As a result, there are legions of reported cases where people have been time barred before they ever knew about their injury.

There is no justification for the continued application of the New York medical malpractice statute of limitations without a discovery rule. Clearly, although Courts have the inherent power to change the rule, they will not do so. Our Legislature also has been unwilling to change the rule except in the limited situation of leaving a foreign object in a person’s body after surgery. At least for our client’s family, the serendipity of being treated by the VA means that they will have a remedy. For other New Yorkers, the unfairness remains.

It was the intent of the Legislature to supplement the rights of nursing home patients under existing law. Subsection (4) of the statute specifically states that “[t]he remedies provided in this section are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings.” Public Health Law §2801-d(4). Moreover, unlike common law claims, the Legislature provided that the amount of any damages recovered by a patient under the statute “shall be exempt for purposes of determining initial or continuing eligibility for medical assistance [Medicaid]” and “shall neither be taken into consideration nor required to be applied toward the payment or part payment of the cost of medical care or services available under” Medicaid. Public Health Law §2801-d(5). Thus, any damages recovered by a patient under the statute do not affect Medicaid eligibility and are not subject to recoupment by Medicaid. This is not the case with damages recovered in ordinary negligence or medical malpractice claims.

Two cases from same court with different results

In 1995, the New York State Appellate Division Fourth Department held in Goldberg v. Plaza Nursing Home Comp., Inc., 222 AD2d 1082 (4^th Dept. 1995) that patients were not entitled to a remedy under §2801-d if they had a viable common law negligence claim arising out of the same injury. This result was followed by most other courts in the state for seven years until 2002, when the same court decided Doe v. Westfall Health Center, 303 AD3d 102 (4^th Dept. 2002). Doe was a notorious case in which a comatose nursing home patient was raped and impregnated by one of her care givers. The lower court had dismissed the plaintiff’s claim under Public Health Law §2801-d, relying on Goldberg. On appeal, the Fourth Department reversed the trial court and reinstated the plaintiff’s Public Health Law claim. In doing so, the Court specifically overruled Goldberg “insofar as we determined therein that summary judgment dismissing the Public Health Law cause of action was appropriate despite doubt concerning the efficacy of the remaining common law cause of action.”

Doe v. Westfall – Almost universally followed since 2002

Since 2002, when the Fourth Department decided Doe, the other three Judicial Departments of the New York State appellate court have all held – expressly or implicitly – that the private right of action granted to nursing home patients by Public Health Law §2801-d may be brought together with claims of negligence and/or medical malpractice arising out of the same injury. These cases are consistent with the apparent intent of the Legislature to provide remedies in §2801-d(4) that “are in addition to and cumulative with any other remedies available to a patient.” Zeides v. Hebrew Home for the Aged at Riverdale, Inc., 300 AD2d 178 (1^st Dept. 2002); Ward v. Eastchester Health Care Center, LLC, 34 AD3d 247 (1^st Dept. 2006); Young v. Patterson, 17 AD3d 667, 667-668 (2^nd Dept. 2005); Fleming v. Barnwell Nursing Home and Health Facilities, Inc., 309 AD2d 1132 (3^rd Dept. 2003).

In addition, there are at least nine published and unpublished lower court cases supporting this view. See Morisette v. Terence Cardinal Cooke Health Care Center, 8 Misc.3d 506 (NY Co 2005); Pasqua v. Bon Secours New York Health System, Inc., 13 Misc.3d 1036 (Bronx Co 2006); Sullivan v. Our Lady of Consolation Geriatric Care Ctr., 236 NYLJ 119 (Suffolk Co 2006); Washington v. Asfaw, 15 Misc.3d 1107A (NY Co 2007); Passet v. Menorah Nursing Home, Inc., 16 Misc.3d 1117A (Kings Co 2007); Marshall v. Leppard, 17 Misc.3d 1103A (Nassau Co 2007); Bush v. Cobble Hill Health Center, Inc., 17 Misc.3d 1135A (Kings Co 2007); Osborne v. Rivington House, 19 Misc.3d 1132A (NY Co 2008); and Yakkay v. Asher, 239 NYLJ 59 (NY Co 2008). The Morisette case, in particular, contains an outstanding discussion of the legislative history and intent behind §2801-d. Morisette, 8 Misc.3d at 509-514.

Fourth Department should clarify this issue in Kash v. Jewish Home of Rochester

This issue will again be presented to the Appellate Division Fourth Department in Kash v. The Jewish Home of Rochester, which is scheduled for oral argument in early December of 2008. The Kash case involves claims for negligence and medical malpractice against the nursing home and its staff doctors who initially allowed a patient to fall twice and then failed to detect the spinal cord injury suffered by the patient as a result. The patient became permanently paralyzed before the spinal cord injury was finally diagnosed days after her second fall. The trial court denied plaintiff’s motion to amend the complaint on the ground that the Goldberg case bars claims under §2801-d where the plaintiff also has a viable claim for negligence. In so holding, the trial court implicitly found that the Doe case did not overrule Goldberg in all instances.

Limitations of a common law remedy due to the effect on Medicaid eligibility

Neither Goldberg nor Doe discussed the explicit benefit conferred by the Legislature in §2801-d that any damages recovered from the nursing home under the statute shall not be considered toward the patient’s future Medicaid eligibility. This is a major benefit of the §2801-d claim since without it, most plaintiffs who recover damages will lose their Medicaid eligibility and become private pay patients.

Plaintiff in Kash, represented by Faraci Lange, LLP of Rochester, New York, has focused on this aspect of the §2801-d claim in her appeal. Plaintiff is attempting to demonstrate that if nursing home patients are confined to bringing common law claims alone, they will be deprived of the benefit of those claims because of Medicaid eligibility rules. Such a result would be absurd. Any monetary damages recovered by a patient under a common law claim would in effect be paid right back to the same nursing home where the patient’s injury occurred, only at the higher private pay rate. Conceivably, nursing homes could benefit financially from their own neglect. According to plaintiff’s appeal in Kash, this is expressly why the Legislature enacted §2801-d – to encourage private rights of action by nursing home patients in order to discourage nursing home patient abuse. A vital component of that remedy is § 2801-d(5), which was meant to avoid the conceivably anomalus result of putting more money into the pockets of nursing home whose patients are neglected or abused.