New York State Tort Law Regarding Healthcare Term Paper

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Harriet Rose, etc., respondent, v Jonathan Zinberg, etc., appellant, et al., defendants (2015 NY Slip OP 04302 (N.Y. App. Div. 2015) (Casetext, Inc., 2015), a New York medical malpractice case for wrongful death based on delayed diagnosis. Bennett Rose, the decedent, had 3 colonoscopies on: January 3, 2003; December 14, 2006; and October 11, 2007. In each case, Rose had polyps that were removed but the diagnosis was that there was no cancer. Two months after the 2007 colonoscopy, Rose, who was 72 years old, began feeling abnormally weak and tired. He was diagnosed with anemia, received hemoglobin transfusions at the hospital and felt better. The anemia returned and another colonoscopy on April 28, 2007 showed a large 8-centimeter cancerous tumor in his ascending colon that had already metastasized to his liver. At that time, he was diagnosed with cecal carcinoma and died from it on July 15, 2009.

Rose's surviving spouse, Harriet Rose, sued the gastroenterologist, Jonathan Zinberg, who performed the first 3 colonoscopies, in 2003, 2006 and 2007. According to the suit, particularly during the colonoscopy of October 11, 2007, Zinberg failed to observe the tumor and departed from acceptable medical practice that failure. The jury trial was held in New York Supreme Court, Nassau County, on March 26, 2013. Plaintiff's medical expert conceded that by October 11, 2007, Mr. Rose's cancer had already spread and was incurable, but the expert explained "performance status" and testified that if the cancer had been diagnosed six months earlier, Rose's general condition would have been healthier, the cancer would not have grown as fast, he would have had a better quality of life, he could have had more treatment, better treatment and treatment that was less severely sickening. At trial and after close of the plaintiff's case, defendant moved for judgment for the defendant as a matter of law pursuant to CPLR 4401, arguing that the evidence adduced at trial was legally insufficient to support a verdict for plaintiff with respect to causation. Defendant argued that expert's testimony was conclusory and speculative and that there was insufficient proof to support a verdict for the plaintiff. The motion was denied and after the trial the jury found for the plaintiff and awarded damages of $500,000 for Mr. Rose's pre-death conscious pain and suffering and $200,000 for plaintiff's loss of services, both for the 15 months from April 28, 2008 to July 15, 2009.

Defendant appealed to the Appellate Division, 2nd Department, of the New York Supreme Court and the court affirmed the lower court's decision denying defendant's CPLR 4401 motion, finding that the evidence adduced at trial was legally sufficient to support the jury's verdict with respect to causation and that the verdict on the issue of liability was not contrary to the weight of the evidence.

b. State's law/regulation relating to malpractice by physicians or pharmacists.

Under New York State tort law, medical malpractice is when a medical provider breaches, or violates, the standard of care, which injures the patient. The "standard of care" is the generally accepted method of care a healthcare professional should render to a patient with a specific condition. This standard of care will differ depending on several factors, including the patient's age and the ailment. Also, the plaintiff must show that the breach of the standard of care directly caused the injury, often using a medical expert to prove it. There are 3 types of possible damages: compensatory damages, to compensate for actual costs, such as medical costs, and loss of wages due to lost work time; non-economic damages, such as pain and suffering; and punitive damages, if the healthcare provider acted recklessly, with malice or fraud. At this time, New York State does not have any cap on medical malpractice damages. Normally, actions must be brought within two years and six months of the allegedly tortious act (State of New York, 2016). New York tort law is a mix of common law and statutes governing statutes of limitations, civil procedure and award types/amounts.

c. Explain whether you agree with the verdict. Why or why not?

I agree with the jury verdict and with the Appellate court's decision to uphold the verdict.

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In failing to diagnose the decedent's cancer from the October 11, 2007 colonoscopy to the April 28, 2008 colonoscopy, the gastroenterologist's behavior fell below New York State's standard of care for that type of treatment and type of patient. The legal expert's testimony seems sufficient to support the jury's verdict for the Plaintiff: if the cancer had been diagnosed six months earlier than April 28, 2008, Rose's general condition would have been healthier, the cancer would not have grown as fast, he would have had a better quality of life, he could have had more treatment, better treatment and treatment that was less severely sickening. Also, the expert's testimony seems sufficient to account for the monetary awards: $500,000 for 15 months of pain and suffering and for 15 months of Mrs. Rose's loss of Mr. Rose's marital services, which the Appellate court said were not out of line with jury awards for that type of case and injuries. In fact, considering just how much pain and suffering 15 months of deadly cancer and severe treatments could cause to a person compared to other painful conditions, $500,000 seems low to me. The $200,000 figure for Mrs. Rose's loss of spousal service seems reasonable under the circumstances.

2. Research Paper -- Discrimination in Providing Healthcare Services - Literature Review

When researching this topic, so many types of discrimination were found that it is currently difficult to decide on one type among discrimination based on race, ethnicity, disabilities, gender or constitutionally unprotected discrimination based on the type of work. Consequently, the literature review is currently eclectic.

a. Lillie-Blanton, M., Maleque, S., & Miller, W. (2008). Reducing racial, ethnic, and socioeconomic disparities in health care: Opportunities in national health reform. Journal of Law, Medicine & Ethics, 36(4), 693-702.

This is related to discrimination in healthcare because it focuses on the need for systemic changes to reduce discrimination. Health and Welfare policy tends to concentrate on reducing health care disparities at the provider level; however, system-wide reforms are needed to insure individuals, make healthcare more available in all geographic areas, use a more diverse workforce in providing healthcare, and encouraging best practices on the clinical level to reduce health care disparities.

b. Pirruccello, J. E. (2005). Contingent worker protection from client company discrimination: Statutory coverage, gaps, and the role of the common law. Texas Law Review, 84(1), 191-223.

This is an interesting and useful article because it focuses on a type of discrimination that is not classically protected by the Constitution: the growing class of contingent workers -- those who are not regular, full-time employees - in America who suffer in the lack of healthcare coverage and other normal employee benefits provided by client companies. These workers can belong to any race, ethnicity, gender identity or differing abilities but their existence as a transient workforce makes them vulnerable to falling through the cracks in health care coverage.

c. Rothstein, M. A. (2015). Limiting occupational medical evaluations under the Americans with disabilities act and the genetic information nondiscrimination act. American Journal of Law and Medicine, 41(4), 523-567.

This article is valuable when discussing discrimination because many workers must undergo workplace medical evaluations to determine their fitness for the job. Because this area keeps evolving, the statutes and regulations protecting individual workers based on race, ethnicity, gender and disabilities are growing increasingly complex. This article explores the evolving, complex system of laws, and medical-ethics attempting to deal with the growing use of workplace medical evaluations.

d. Sheppard, V. B., Williams, K. P., Wang, J., Shavers, V., & Mandelblatt, J. S. (2014). An examination of factors associated with healthcare discrimination in Latina immigrants: The role of healthcare relationships and language. Journal of the National Medical Association, 106(1), 15-22.

This article is related to discrimination in healthcare because it addresses the specific types of discrimination endured by a quickly growing segment of the U.S. population: Latinas.

A number of them, particularly if they are foreign born, have very bad experiences in our healthcare system. This article explains the need for more research about the type, occurrence and frequency of.....

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