Hagelin Spencer LLC

COVID-19’s Uncertain Impact on Future Malpractice Claims

2021-04-08T02:24:44Z

It is undeniable that COVID-19 health crisis has taken a large toll on front-line healthcare workers over the past year. In the early onset of COVID, Article 30-D of the Public Health Law, better known as the “Emergency Disaster Treatment Protection Act” (EDTPA) was enacted in New York. This Act sets forth protections for nursing homes, hospitals, and other health care providers and physicians from civil liability for negligent acts or omissions committed during the COVID-19 crisis. EDTPA further provides that a COVID-19 patient may only bring a medical malpractice claim for injury if the patient can establish the presence of gross negligence. On March 26, 2021, the NY Senate passed a bill to repeal EDTPA, which was later signed into law by Governor Cuomo on April 6, 2021. This bill immediately strips all healthcare providers and physicians from the “blanket immunity” from civil liability initially set forth under Article 30-D of the Public Health Law. Going forward, it is uncertain what will be deemed a reasonable scope for the proper standard of care and treatment for COVID-19 patients now that EDTPA has been repealed. Additionally, medical malpractice claims brought for alleged malpractice during the lifespan of the EDTPA will likely face the significant burden of proving a deviation from the standard of care at a time when there was no such standard.

New York State Senate Votes to Repeal Immunity Protections for Nursing Homes

2021-03-29T20:13:47Z

On March 24, 2021, the New York State Senate unanimously voted to pass the Treatment Protection Act. The Act will, among other provisions, repeal the criminal and civil immunity that was granted to nursing homes at the onset of the COVID-19 pandemic. The Act already passed the New York State Assembly on March 4, 2021, meaning that it will now be sent to Governor Andrew Cuomo for his signature before it becomes law. Back on April 3, 2020, the Emergency or Disaster Treatment Protection Act (known as Article 30-D) was enacted, which served to immunize health care providers from criminal and civil liability starting from the date of its passage during the pandemic. Article 30-D followed immunity that was granted to nursing homes via executive order on March 7, 2020, when Gov. Cuomo declared a state of emergency. Currently, Article 30-D grants civil and criminal immunity to health care facilities and professionals who, in the course of providing COVID-19 treatment in good faith, incur a negligent act or omission. The statute does not provide immunity for willful, intentional, reckless, or grossly negligent conduct. The initial version of Article 30-D applied to all kinds of healthcare treatment, whether related to COVID-19 or not, though a law enacted in August 2020 limited legal immunity under Article 30-D solely to COVID-19 treatment. Article 30-D has generated controversy, especially in light of the underreporting of nursing home deaths by Gov. Cuomo’s administration. Much criticism was directed at the fact that facility administrators and corporate executives qualified for Article 30-D immunity, instead of being more narrowly tailored to doctors, nurses, and other direct providers of medical care. If the Treatment Protection Act becomes law, the protections granted to health care facilities under Article 30-D will expire beginning on the date the Act becomes law. Notably, the Act will not completely retroactively erase the immunity provisions of Article 30-D. Instead, the Treatment Protection Act will retroactively strip nursing homes of immunity for a shorter time period. This period starts from March 7, 2020, when Cuomo’s initial COVID-19 executive order was issued, and lasts until April 3, 2020, when Article 30-D was enacted. This is still significant, considering there are over 1,300 confirmed and presumed COVID-19 deaths in New York nursing homes during this time. In addition to repealing immunity protections, the Treatment Protection Act also includes several provisions requiring nursing homes to meet additional transparency requirements. These include a requirement for nursing homes to prominently display information on the Long-Term Care Ombudsman Program, as well as a requirement that nursing home assets and ownership information be made public. Despite unanimous support in the State Senate, some business leaders are concerned about the potential that the Treatment Protection Act creates for increased litigation against hospitals and nurses. The Act opens the door for litigation against nursing homes and other medical providers during the period from March 7 to April 3, 2020, a substantial period of time in the early onset of the pandemic where much less was known about COVID-19. Further, the Act will allow for litigation involving COVID-19 treatment that occurs on and after the date it is enacted. Considering that hospitals and nursing homes will continue to treat substantial numbers of COVID-19 patients following the enactment of the Act, it can be expected that more litigation will follow as well.

Continuous Treatment Doctrine Failed to Revive Bronx County Medical Malpractice Claim

2021-03-02T18:01:09Z

Typically, in New York, an injured person has 2.5 years, or 30 months, from the time of the injury to file a medical malpractice claim. However, there are numerous exceptions to this timeframe, such as the Continuous Treatment Doctrine. Under the Continuous Treatment Doctrine, the 2.5-year period to file a medical malpractice claim does not begin to run until the injured person has finished treatment. On February 4, 2021, the New York Appellate Division, First Department, affirmed a trial court’s entry of summary judgment in favor of the Defendant hospital. Plaintiff appealed this medical malpractice decision on the issue of timeliness. Plaintiff argued on appeal that the 2.5 year statutory period for serving a notice of medical malpractice claim on the Defendant hospital was timely, as the Continuous Treatment Doctrine applied. In its decision, the First Department highlighted that the Plaintiff was treating with multiple physicians, including the Defendant hospital, and that many years had passed since the alleged medical malpractice claim. Plaintiff sought damages for alleged medical malpractice that occurred on May 10, 2011 when she presented to the Defendant hospital’s emergency department for treatment of a headache. Plaintiff suffered a stroke at some point after she was discharged from the Defendant hospital. The First Department held that the post-stroke rehabilitative care that Plaintiff received at Defendant hospital after May 10, 2011 did not constitute a continuation of treatment for the condition that gave rise to the alleged medical malpractice, which according to Plaintiff’s Bill of Particulars, was limited to the Defendant hospital’s failure to diagnose and treat her headache on May 10^th. Additionally, in it’s decision, the First Department noted that prior to Plaintiff returning to Defendant hospital for post-stroke care, Plaintiff’s stroke had already been diagnosed and treated at a separate medical facility where Plaintiff continued to receive follow up care from both neurologists and stroke specialists.

The Homeowner Exemption to New York Labor Law Sections 240 and 241

2020-09-09T18:49:14Z

New York Labor Law Sections 240 and 241 provide broad requirements for the use of scaffolding and other safety equipment for various construction projects. These statutes give workers causes of action to sue contractors and site owners for their injuries. If it turns out that safety equipment was not provided, the owners and contractors can be held strictly liable. Notably, both Sections 240 and 241 contain exemptions for “owners of one and two-family dwellings who contract for but do not direct or control the work.” The purpose of this exemption is to ensure that homeowners do not face the same level of strict liability as commercial owners and contractors, as the state legislature envisioned that the average homeowner would not have the ability or means to supply workers with safety devices. Looking at the exemption, a homeowner who is sued under Labor Law Sections 240 and/or 241 must prove that he or she (1) owned a one or two family dwelling and that the dwelling was the subject of the construction work, and (2) did not direct, control, or supervise the work. Step One: The Homeowner Must Own a One or Two-Family Dwelling In order to avoid Labor Law Sections 240 or 241 liability, a homeowner must own a one or two-family dwelling which is not used for commercial use, and that dwelling must be the subject of the construction work. Commercial use is key for this provision of the Labor Law: if a person operates a business on the first floor of his or her home and lives on the second floor, he or she risks liability under Sections 240 and 241 if construction work is done. However, it is important to note that some landlords may qualify for the Section 240 and 241 exemptions. If a homeowner rents out part of his or her home to a tenant and subsequently gets construction work done on the home, that homeowner will qualify for the Section 240 and 241 exemptions, even if the homeowner is earning rent. Step Two: The Homeowner Cannot Direct or Control the Construction Work In addition to the first requirement, a homeowner must not have directed or controlled the construction work in order to qualify for the homeowner’s exemption to Labor Law Sections 240 and 241. Essentially, a homeowner cannot exercise supervisory control over a contractor’s work, otherwise the homeowner can be held strictly liable. Granted, this requirement does not forbid all forms of supervision. For instance, a homeowner who seeks to have his or her home painted is permitted to choose the color of paint and still not be held liable under Sections 240 and 241. Common Law Negligence Can Still Apply Even though there exists a homeowner’s exemption from Sections 240 and 241, an injured construction worker still has other means of legal recourse against a homeowner. Such a worker can sue under Labor Law Section 200, in addition to negligence under the common law. This means that, even if a homeowner qualifies for the exception under Sections 240 and 241, he or she could still be held liable under common law. However, there are similarities between the standards for Section 200/common law negligence and the homeowner’s exemption under Sections 240 and 241. In order to be liable under Section 200 and common law negligence, courts require that the homeowner exercise supervisory control over the work performed or that the homeowner had notice of the dangerous condition that causes the injury. Like under Sections 240 and 241, proving a lack of supervision or control is important in avoiding liability. Further, courts have refused to find liability under Section 200 and common law negligence where a homeowner engages in minimal supervision and control, which can even include coordination of contractors and having authority to review safety on-site. Conclusion While New York Labor Law Sections 240 and 241 impose strict liability on landowners and contractors who do not provide sufficient safety equipment, the statutes contain a specific exemption for owners of one or two-family dwellings who do not supervise or control the construction work. Courts have interpreted these provisions to allow for homeowners who rent out part of their homes to qualify, as well as allowing homeowners to engage in a small amount of supervision. It is important to homeowners to keep the limitations of the exemption in mind when hiring contractors for construction work.

New York Labor Law Section 240(1) and Misusing Safety Equipment: The Case of Biaca-Neto v. Boston Rd. II Housing Development Fund Corporation

2020-09-09T18:48:12Z

In a recent disputed decision, the New York Court of Appeals reversed a decision of the First Department that dismissed a lawsuit on summary judgment, instead finding that there was an issue of fact as to whether a plaintiff was the sole proximate cause of his injuries. In Biaca-Neto v. Boston Rd. II Hous. Dev. Fund Corp., 176 A.D.3d 1, 107 N.Y.S.3d 7 (1st Dep’t 2019) the First Department dismissed claims under both Labor Law Sections 200 and 240(1). In this case, a plaintiff sued a development company and a general contractor after he was injured on scaffolding that he was assembling. Here, adequate safety devices were available, as plaintiff had a lifeline attached to a harness and the perimeter of the scaffold was enclosed by protective framing and basketing. However, according to a co-worker, plaintiff injured his shoulder when he unhooked his safety line and climbed onto the scaffold’s frame to enter the building through the window cut-out. The plaintiff’s supervisor testified that entering the building through a window was forbidden and would result in that worker being removed from the job site; workers were instead supposed to use the scaffold staircase. He also testified that he was unaware of workers using such a shortcut. Even though there was conflicting testimony regarding how the accident occurred, as plaintiff claimed that he fell as opposed to bumping his shoulder, the First Department found that Labor Law Section 240 was not implicated since plaintiff’s account did not connect to a defect in a required safety device. Plaintiff testified that entering the building through the window was inappropriate, meaning that he had no good reason to avoid the safe entry method and that he would not have been injured if he followed site protocol. On appeal, the New York Court of Appeals reversed the decision of the First Department regarding the Labor Law Section 240(1) claim, instead holding that summary judgment should have been denied. Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 144 N.E.3d 363, 2020 NY Slip Op 01116 (2020). The Court of Appeals found that there was an issue of fact regarding whether plaintiff was advised of the standing order forbidding entrance through the windows. The Court also noted that there were sworn statements from two of plaintiff’s co-workers stating that they entered the building using its windows. As a result, the Court ruled that the Labor Law Section 240(1) cause of action was improperly dismissed since a triable issue of fact exists as to whether plaintiff’s conduct was the sole proximate cause of his injuries. Judge Michael J. Garcia issued a dissent, stating that the record clearly shows that plaintiff’s negligence was the sole proximate cause of his injuries. He argued that there is no requirement in Labor Law Section 240(1) to expressly advise workers that reckless behavior is prohibited and that the majority erred by suggesting that owners and contractors must explicitly prohibit all conceivable forms of mischief. Judge Garcia also argued that similar behavior from co-workers was irrelevant, stating that summary judgment should not be defeated by pointing to other workers who also engage in unsafe behavior. The Court of Appeals reversal of the First Department’s decision in Biaca-Neto exemplifies the difficulty a defendant faces when attempting a dismissal of a Labor Law Section 240(1) claim pursuant to a motion for summary judgment. Even where a plaintiff ignores all common sense and engages in unnecessary risky behavior, the plaintiff may still be allowed to proceed if (1) it is possible that plaintiff was not directly given safety warnings; or (2) if another co-worker engages in the same risky behavior.

Defending a Claim under New York Labor Law Section 240(1): The Obstacles for a Dismissal Pursuant to a Motion for Summary Judgment

2020-09-09T18:50:08Z

New York Labor Law Section 240(1) is a broad-reaching statute that requires the use of scaffolding and other protective measures in various construction-related work. For contractors, property owners, and insurance companies, defending against a worker’s claim under Section 240(1) presents unique difficulties. Succeeding on a motion for summary judgment and obtaining a dismissal of a New York Labor Law action can prove difficult. One specific reason is that the New York law maintains a particularly high standard for defendants to meet, requiring that a defendant prove the action or inaction of the plaintiff worker was the sole proximate cause of his or her accident. Further, even where it may seem evident that a negligent plaintiff caused his or her own injury, the case may still be allowed to proceed if it is unclear whether plaintiff was warned about the specific behavior or if other co-workers were engaged in similar behavior. A Labor Law § 240 claim may be dismissed pursuant to a summary judgment motion when the plaintiff worker’s negligence is the sole proximate cause of his or her own injuries. More specifically, a defendant is not liable where (1) there are adequate safety devices available, (2) the plaintiff knows that they are available and is expected to use them, (3) the plaintiff chose not to use the safety devices for no good reason, or the plaintiff misused the device, and (4) the plaintiff would not have been injured if not for his or her choice. Cahill v. Triborough Bridge & Tunnel Auth, 4 N.Y.3d 35, 40, 790 N.Y.S.2d 74 (2004). This way, workers are not rewarded when they act in a negligent manner. Sole proximate cause is to be contrasted with comparative negligence, which is not a defense to a Labor Law § 240 claim. If the court finds that a plaintiff was comparatively negligent instead of the sole proximate cause of the injuries, the court will not dismiss the claim on a summary judgment motion.

Are there limitations to New York’s No-Fault law?

2020-01-24T20:29:02Z

New York is only one of 12 states, as well as Puerto Rico, in the United States that requires insurance companies to utilize a no-fault policy after an insured driver is involved in an accident. This policy states that motorists involved in accidents will first go to their own insurance for coverage, instead of filing with the other driver’s company.

The law is intended to benefit small claims disputes, expediting compensation to the policy holder. However, how air-tight is the no-fault law? Are there limitations to what a policyholder can file for?

Auto insurers and their defense attorneys frequently face protecting themselves from inflated or fraudulent claims that seek to exceed the limitations of policy coverage under New York’s insurance laws. This post will discuss coverage limits, which plaintiffs often overlook when filing a claim or seeking excessive damages through a lawsuit.

Monetary threshold

Typically, no-fault will pay up to $50,000 for medical expenses or lost wages. These expenses can include bills for hospital expenses, prescriptions, x-rays and other tests, as well as physical therapy. A possible other expense includes payment for the driver’s loss in wages.

Time threshold

There are three instances of limitations that are time specific when looking at no-fault coverage.

30-days: An insured driver only has 30 days to submit their claim. Anything past the 30 days can either be denied, or the insurer can request written documentation of why the claim was overdue.
45-days: An injured driver only has 45 days to submit medical bills in order to receive compensation. The 45-day timeline starts on the date of treatment.
90-days: A driver that lost wages due to an accident only has 90 days to file a lost wage claim. After this, an insurance company has the ability to deny coverage for any wages lost.

Insuring a driver involved in a car accident can be costly for insurance companies, especially with the no-fault law in place. However, there are limits to the law.

2 Elements Of New York’s Scaffold Law

2020-01-24T20:29:05Z

Employees, employers and insurance agents are likely aware of New York's Labor Law 240, also commonly known as the "Scaffold Law."

The 1885 law was created with the intent of protecting construction workers from any injury caused by a fall or other incident involving elevation. Under Labor Law 240, injured employees can hold their employers liable for compensation no matter the cause of the injury. It is important for employers and their insurance agents to inform themselves about it, because the law is so unique.

The law is one of a kind

New York is the only state in the United States to have a scaffold law with absolute liability. This means that an employer is responsible for 100 percent of the liability. An injured worker cannot be held even partially responsible for their injury, even if they were the cause.

For example, an employer is responsible for an employee's injury if:

The employee had proper training, yet ignored said training
The employee was under the influence of drugs or alcohol
The employee was provided safety equipment but failed to use them

There are some exceptions

This law hinges on the idea that a worker was injured while on a piece of elevation equipment (ex. a scaffold, ladder rope or hoist). If the injury did not result from a fall or equipment falling, the law does not apply.

Furthermore, if a construction worker was injured outside the scope of their work, for example if they were injured after falling down the stairs at home, the Scaffold Law is not applied.

This law causes much controversy in the state of New York, especially for those in relevant fields. Knowing the situations when the law is applied and when it is not is crucial for all.

Are the truckers you insure ELD compliant?

2020-01-24T20:29:08Z

The days of paper logs and fudging hours of service are long gone. The Federal Motor Carrier Safety Administration’s (FMSCA) placed a mandate on electronic logging devices a few years ago. Since then, truckers and trucking companies have been working to equip their vehicles with electronic logging devices (ELDs).

Currently, the FMSCA requires all commercial trucks to have either automatic onboard recording devices (AOBRDs) or compliant ELD systems. Both of these systems use automation to record a trucker’s driving hours. However, a new deadline is fast approaching. Starting in December this year, all trucks must replace AOBRDs with compliant ELDs. This last deadline is an effort to make sure every truck has the proper logging equipment. As the deadline approaches, the penalties become more severe. Are the truckers you insure in ELD compliance?

Compliance with FMSCA standards

The ELDs that truckers soon must use are different from the older AOBRDs systems in many ways. The most important difference is the way in which ELDs transmit their data. ELDs should use either a combination of the internet and email or a combination of Bluetooth and a USB/flash drive. A device that does not use these methods would not be in compliance.

Another new rule is that ELDs must be able to print out a graph of driver activity in case the internet or Bluetooth is down. Also, drivers should have a limited ability to manually enter activity into ELDs. Automated entries are the standard for ELDs.

There are several other technical specifications for the ELDs that you can find on the FMSCA website.

Penalties for noncompliance

In the early days of the ELD mandate, drivers found to be non-compliant would receive citations and fines. But since April 2018, the punishments have started to be harsher. Truckers and trucking companies found to be without ELD or AOBRD systems run the risk of getting “no record of duty status.” That status can get truckers an “out-of-service order,” which prohibits them to drive commercially. That would lead to lost profits and a stain on the trucking company’s record.

If a company violates the ELD mandate consistently, the federal government may investigate.

Benefits of compliance for insurance companies

When drivers use the required ELDs, they are less able to input inaccurate driving data. ELDs hold drivers accountable for the hours they drive, so drivers are less likely to spend too much time behind the wheel. For insurance companies, this means less accidents and driver errors. The FMSCA sets restrictions on driving time in order to prevent the incidents that turn into claims for your company. ELDs make your job easier because they force drivers to comply with those restrictions.

Make sure the truckers and trucking companies you insure have installed ELDs by December 17 so you can prevent some of those claims and do your part to comply with the law.

Welcome To Our Blog

2019-08-09T19:10:32Z

We established this blog to share stories and information about topics relevant to our practice. Our intent is to regularly provide posts highlighting legal issues of local, state and national interest that we think you will find interesting. Check back later for updates.