Split Court Rejects Hospital's Tardy Summary Judgement Bid

, New York Law Journal

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Hospital for Special Surgery
Hospital for Special Surgery

A hospital that missed a submission deadline by almost two months in a medical malpractice case was properly denied summary judgment, said a divided Manhattan appellate court.

Questioning the failure to explain the tardiness and the labeling of the document as a "cross motion," Justice Paul Feinman (See Profile) of the Appellate Division, First Department wrote in Kershaw v. Hospital for Special Surgery, 9655A, "We are concerned that the respect for court orders and statutory mandates and the authoritative voice of the Court of Appeals are undermined each time an untimely motion is considered simply by labeling it a 'cross motion' notwithstanding the absence of a reasonable explanation for its untimeliness."

The affirmance is not based on the merits of the motion, which stems from the decision not to perform surgery on a man coping with the increasing loss of the use of his right arm, hand and shoulder, said Feinman in the Dec. 24 ruling. He was joined by Justices Rolando Acosta (See Profile) and David Saxe (See Profile). The panel heard oral arguments on March 7.

But Justice Peter Tom (See Profile), joined by Justice Helen Freedman (See Profile), said the majority's application of the law was "unnecessarily rigid" in a case with a "marginally late filing." Moreover, Tom said the hospital's arguments had merit and the motion's lateness had not caused prejudice.

"Given the budgetary constraints presently confronted by the court system, this is hardly a fitting time to require trial of a matter devoid of apparent merit and otherwise amenable to disposition on motion, and the 'genuine need' to be accommodated is that of the court to proceed expeditiously," Tom wrote.

In 1994, Bruce Kershaw underwent spinal surgery at the Hospital for Special Surgery to address increasing weakness in his left shoulder and upper extremities.

Beginning in 2003, he returned to the hospital several times, complaining of problems in his right-side extremities. By 2004, two doctors concluded surgery would not help and posed risk of paralysis or death. Kershaw then sought treatment at the New York University Medical Center Hospital for Joint Diseases. An examining physician there concluded there should be no lumbar spine surgery "at this time."

Kershaw ultimately had surgery at Mount Sinai Hospital in December 2005. Almost a year after surgery, Kershaw said his upper extremity strength had not improved and he had pain and numbness in his right hand and arm.

Kershaw sued the Hospital for Special Surgery and the New York University Medical Center Hospital for Joint Diseases in 2007. He argued the hospitals' failure to timely perform surgery left him with muscular and neurological damages that would not have developed if the procedure had been performed sooner.

Manhattan Supreme Court Justice Alice Schlesinger set a Nov. 14, 2011 deadline for defendants to seek summary judgment.

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