Law for a SNOW DAY
Welcome to TNYMMLB’s SNOW DAY EDITION. Today, we talk about, what else, snow.
What is a landowner’s duty to those who might walk by or through his land when there is a snow storm? The Appellate Division, First Department wrote on this as recently as December 9, 2008, in Espinell v. Disckson, NY Slip Op 09638 (1st Dept. 2008), a case in which plaintiff had slipped, fallen and injured himself on an icy patch of defendant’s sidewalk the morning after some mixed precipitation, including snow and ice.
The Court granted defendant’s summary judgment motion (for dismissal), finding that the defendant landowner did not have sufficient notice of the ice, and therefore could not have been reasonably expected to remove it prior to plaintiff’s fall. In coming to its decision, the Court noted that such a landowner’s duty to take “reasonable measures” to keep his property safe is suspended during the snow storm, and does not begin until a “reasonable time” after the storm has stopped. What is a “reasonable time”? That would be the time period in which the landowner should have taken notice of the dangerous condition, and “in the exercise of reasonable care,” addressed it so as to render it safe.
The Court found that defendant landowner lacked notice because the ice patch was not “readily visible,” and because of the short interval of time between the end of the storm, and plaintiff’s fall. (The snow had stopped completely by 7:00 a.m., and the accident occurred at 8:45 a.m.)
What can we learn from this? Landowners, don’t rely on what any court might think is reasonable. Clean up the snow and ice that collects, often and well. Pedestrians, be careful out there. But, if you are going to fall and hurt yourself, make sure to tell the landowner about the icy condition ahead of time.
Counterintuitive Case Law from the Second Dept.
As practitioners of personal injury and medical malpractice law, most of us know the difference between standard negligence, and medical malpractice, even though both can occur in a hospital or doctor’s office setting. Letting a patient who is about to be operated on fall off the surgical table so that he breaks his hip would be negligence, while operating on the wrong knee would be medical malpractice, to use two simple scenarios. But apparently, deciding which is which in not so simple after all.
In its September 23, 2008 decision in Bazakos v. Lewis, 56 A.D.3d 15 (2d Dept. 2008), the Second Department held that an orthopedist performing an independent medical examination (IME) on a plaintiff committed negligence, and not medical malpractice, when he allegedly rotated plaintiff’s head in a rough manner during the IME, causing injury to the plaintiff. The Second Department found that, because there was no physician-patient relationship between the plaintiff and the orthopedist hired by the defense to examine him, there could be no medical malpractice. Absent that relationship, any injury that might occur is simple negligence. That the defendant-physician performing the IME allegedly caused an injury while utilizing his training as a physician, and arguably utilizing it in a substandard manner, had no impact on the decision.
To the defendant in this case, the difference between the two had a profound impact, as the plaintiff had brought the case after the expiration of the 2 and 1/2-year statute of limitations for medical malpractice, but before expiration of the 3-year statute of limitations for negligence.
In its December 2, 2008 decision of Ryan v. Korn, NY Slip Op 09579 (2d Dept. 2008), the same Court found that burns suffered by the plaintiff as a result of a physical therapist’s negligent application of heating pads were a result of medical malpractice, reasoning that “[c]onduct may be deemed malpractice, rather than negligence, when it ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician’” (citation omitted). The Court stretched to remain true to its ruling in Bazakos , reasoning that the physical therapist’s conduct “derived from the duty owed to the plaintiff as a result of the physician-patient relationship.” Apparently, the Court was referring to the physician who ordererd the physical therapy. Naturally, this case had statute of limitations ramifications as well.
So, an orthopedist manipulating a plaintiff’s head and causing injury, albeit during an IME, has not committed medical malpractice, but is negligent. A physical therapist who uses heating pads the wrong way has committed medical malpractice. I sense that this is not the last we will see on this subject.
Physicians Speak Out Against FDA’s Lax Methodology
Way back on July 11, 2008, I wrote about physician/editors at THE NEW ENGLAND JOURNAL OF MEDICINE who had grave concerns about consumers of American medical care, and users of American medical devices, given the often less-than-optimal testing of drugs and devices by the FDA prior to their approval for use on or in patients. Their concerns extended to the federal preemption addressed in Riegel v. Medtronic and Wyeth v. Levine that would prevent patients injured or killed by defective products from seeking redress in state courts, if the drug or device had been FDA approved.
In the December 11, 2008 issue of THE NEW ENGLAND JOURNAL OF MEDICINE, the war of words continues. Cardiologist Robert G. Hauser, M.D., and electrophysiologist Adrian K. Almquist, M.D., call out the FDA on its casual and even reckless approach to the testing of new ICDs (implantable cardioverter-defibrilators). According to the authors, the overriding concern for the manufacturers of the next generation of ICDs is getting them to market quickly, and for the least amount of money. To that end, they want to avoid premarket clinical testing because of its cost, and its potential to delay introduction of the product.
Apparently, neither the FDA nor the manufacturers of the ICDs will conduct any premarket clinical testing of the new ICD before it is approved for routine implantation in patients. Instead, the FDA will rely on engineering tests, and tests in animals.
Drs. Hauser and Almquist write that “the decision by the FDA and industry to forgo premarket clinical testing …is not in the best interests of patients.” And they go on to explain why such testing is so dangerously flawed, especially in light of what is at stake–the lives of cardiac patients who deserve better than to serve as guinea pigs for the FDA.