As reported on Law360 on 8/30/17 NY Doctor Must Face Suit Over Bad Brain Tumor Treatment

By Y. Peter Kang

Law360, Los Angeles (August 29, 2017, 9:57 PM EDT) -- A New York appellate panel allowed to move forward on Tuesday a suit accusing a doctor of failing to properly treat a woman's benign brain tumor that purportedly caused her to suffer vision loss, saying it is possible the "continuous treatment" doctrine tolled the statute of limitations on her claims.

In a 3-1 ruling, a four-judge panel for the First Judicial Department affirmed a denial of summary judgment to Dr. Frederick Rutkovsky and his practice group, Lenox Hill Community Medical Group PC, in a suit filed by patient Michelle Lewis accusing the primary care physician of failing to detect, diagnose and treat her meningioma, which purportedly required her to undergo brain surgery and left her legally blind. Although the suit was filed beyond New York's two-and-a-half-year statute of limitations for medical malpractice claims, the panel said Lewis had plausibly alleged that Rutkovsky repeatedly ignored her complaints of migraine and blurred vision during an eight-year period of continuous treatment ending in 2007.


"Read in the light most favorable to plaintiff, the record contains issues of fact as to whether from March 1999 until at least September 5, 2007, there was continuity of treatment for symptoms — namely, recurring and sometimes severe headaches — that were traceable to plaintiff's meningioma," the majority wrote in a 13-page opinion. "If so, the course of treatment would render plaintiff's action timely, as the statute of limitations would be tolled between March 1999 and September 2007."

The panel said deposition testimony provided by Lewis asserts that she complained to Rutkovsky of increasingly debilitating headaches and vision loss on at least six occasions between 1999 and 2007, so a factual dispute exists as to whether Rutkovsky was consistently monitoring the patient for specific symptoms related to the meningioma.

"Whether this testimony is credible is a matter to be evaluated by the factfinder, not by the court on summary disposition," the majority said. "This testimony, read in the light most favorable to plaintiff, is quite sufficient to raise an issue of fact, which is all that the law requires at this stage."

An attorney for Lewis said she and her client are satisfied with the outcome of the case.

"We are quite pleased that the court took the time to address and resolve the continuing treatment claim in great detail," said Annette G. Hasapidis. "This determination provides significant guidance to litigants about the weight to be given to a plaintiff's deposition testimony in the summary judgment proceeding, particularly when there are contradictory medical records."

An attorney for Rutkovsky and Lenox Hill did not immediately respond to a request for comment Tuesday.

Justices Peter Tom, Karla Moskowitz, Judith J. Gische and Barbara R. Kapnick sat on the panel for the First Department.

Lewis is represented by Annette G. Hasapidis of Law Offices of Annette Hasapidis and Ryan H. Asher of Asher & Associates PC.

Rutkovsky and Lenox Hill are represented by Eldar Mayouhas of Kaufman Borgeest & Ryan LLP.

The case is Michelle Lewis v. Frederick D. Rutkovsky M.D. et al., case number 102947/10 3570, in the New York Supreme Court Appellate Division, First Judicial Department.

--Editing by Catherine Sum.

Palydowycz v. Palydowycz

In Palydowycz v. Palydowycz, 138 A.D.3d 810 (2d Dep't 2016), Ms. Hasapidis secured an equitable distribution award for her client and a change in the law. There, the Appellate Division, Second Department, held that the rule of double-counting does not apply to the husband's medical practices because they hold a value, distinct from the income stream that the medical practices generated. As a result, the wife was entitled to maintenance based on the income stream from the practices in addition to a share of the value of the medical practices themselves. This ruling constituted a departure from the Second Department's earlier decisions on this case, as the court explained:

The rule against double counting applies where the projected earnings used to value an intangible asset, such as a professional license, are also used to calculate a maintenance award (see Keane v. Keane, 8 N.Y.3d 115, 121; Grunfeld v. Grunfeld, 94 N.Y.2d 696, 704). However, "[i]t is only where '[t]he asset is totally indistinguishable and has no existence separate from the [income stream] from which it is derived' that double counting results" (Keane v. Keane, 8 N.Y.3d at 122, quoting Grunfeld v. Grunfeld, 94 N.Y.2d at 704).

* * *

Here, the defendant's medical practices, which employ other individuals including several doctors, and his interest in an ambulatory surgical center, are not intangible assets which are "totally indistinguishable" from the income stream upon which his maintenance obligation was based (Keane v. Keane, 8 N.Y.3d at 122), and the valuation method used by the plaintiff's expert to determine the fair market value of these assets does not change their essential nature. Accordingly, the Supreme Court erred in concluding that it had no discretion to award the plaintiff any distributive share of the value of these assets because the parties considered the defendant's entire 2010 income in reaching a stipulation as to his maintenance obligation. To the extent that Rodriguez v. Rodriguez (70 A.D.3d 799) is inconsistent with our determination, it should no longer be followed. Palydowycz v. Palydowycz, 138 A.D.3d 810 (2d Dep't 2016).

Read another commentator's analysis: of-DoubleDipping-in-Divorce- Context#ixzz49CQeYLaf

In Auqui v. Seven Thirty One Limited Partnership, the Court of Appeals Reversed Its Earlier Decision In The Same Case.

Ms. Hasapidis secured an unprecedented victory in Auqui v. Seven Thirty One Limited Partnership in the Court of Appeals on December 10, 2013. She represented a worker who was injured when a sheet of plywood fell from a 50-story-high construction site and struck him on the head as he walked down a New York City street.

Initially, on February 14, 2013, in Auqui v. Seven Thirty One Limited Partnership, the Court of Appeals, for the first time, granted collateral estoppel effect to the decisions of the workers' compensation board in third-party actions regarding disability issues. That Decision and Order jeopardized the right to a jury trial on those issues and would have a serious impact on the ability of injured workers to seek justice through the court system, while also undermining the workers' compensation system.

Ms. Hasapidis requested that the Court of Appeals grant reargument of its Decision and Order, which is rarely granted. Yet, the Court granted reargument and, after a second round of briefing and oral argument, the Court unanimously vacated the earlier Decision and Order, and held that a determination of the workers' compensation board as to duration of disability could not be granted preclusive effect, reasoning:

Given the realities of these distinct proceedings, the finder of fact in a third-party negligence 'action, in its attempt to ascertain the extent of plaintiff's total damages, should not be bound by the narrow findings of the Board regarding the duration of plaintiff's injury or his need for further medical care.

The critical Decision in Auqui v. Seven Thirty One Limited Partnership will ensure that injured workers will continue to be able to hold third-parties accountable and to have their day in court. A copy of the full Decision is available here

Ms. Hasapidis received the support of a significant coalition of lawyers, labor and community organizations who worked tirelessly over many months to achieve this remarkable victory:

  • NYSTLA Amicus Committee;
  • New York State Bar Association;
  • AFL-CIO;
  • New York City Central Labor Council;
  • Building and Construction Trades of Greater New York;
  • Injured Workers Bar Association;
  • Workers Injury Law and Policy Group;
  • New York Committee for Occupational Safety and Health;
  • Make the Road New York;
  • New York Communities for Change;
  • Center for Popular Democracy;
  • The Black Institute; and
  • Citizen Action of New York.

Few attorneys have achieved such a result - the vacatur of a published Decision of New York’s highest Court. This outcome is a testament to Ms. Hasapidis' appellate advocacy skills.

Watch video (Ms. Hasapidis starts at the 12 minute mark.)