Department of Education and Hospital Not Liable for Plaintiff’s Stroke

The New York Supreme Court, Appellate Division, First Department affirmed a trial court’s order that granted the Department of Education and hospital’s motion for summary judgment in a combined negligence and medical malpractice case.

The plaintiff was an 8-year-old child who attended a public school operated by the Department of Education. While playing on the playground, the plaintiff began to suffer a stroke. Several DOE staff were present on the playground at the time. The plaintiff began to fall, and one staff member scooped her up and caught her mid-fall. The child couldn’t stand or move her legs, so the staff member called 911.

EMS took the child to Jacobi Hospital where she was eventually diagnosed with an acute ischemic stroke. She received a CT scan and was later released.

The plaintiff filed a complaint against the DOE and hospital, alleging negligence on behalf of the DOE and medical malpractice on behalf of the hospital. The plaintiff alleged that the DOE worsened the plaintiff’s stroke. The plaintiff alleged the hospital was negligent in delaying the CT scan and not administering TPA, a medical treatment designed to dissolve blood clots.

Both defendants filed motions for summary judgment after discovery was completed. The trial court granted both motions and dismissed the complaint.

Regarding the DOE’s motion for summary judgment, the DOE argued it did not worsen the plaintiff’s condition. New York requires that schools and camps adequately supervise children in their care. Schools and camps will be liable for injuries that occur due to inadequate supervision if those injuries are foreseeable. The stroke here was not foreseeable and was not caused by a lack of supervision. In addition, there were multiple staff members present on the playground at the time of the stroke. One staff member even helped prevent further injury by catching the plaintiff as she fell. Finally, the staff member assessed the plaintiff ‘s medical condition and called 911. The DOE therefore established a prima facie entitlement to summary judgment. The plaintiff had no arguments on opposition to rebut this.

Regarding the hospital’s motion for summary judgment, the hospital argued that its doctors acted using acceptable and reasonable medical practices under the circumstances. TPA has not yet been tested on children and is therefore not approved for use with children. If the doctors had administered TPA to the child, this would have been an unsafe risk that constituted a departure from accepted medical practices. The doctors therefore were not negligent in failing to administer TPA.

To support this argument, the hospital submitted the affidavit of an expert medical witness who stated that TPA was unsafe for children. The plaintiff responded in her opposition with a medical expert of her own whose opinion in fact mirrored that of the defense expert. Also in her opposition, the plaintiff tried to raise a new theory of liability – namely that the doctors should have administered Heparin, an anticoagulant.

Because both experts agreed on the TPA, there was no triable issue of fact regarding TPA. Thus summary judgment was proper on this claim. In addition, the First Department held it would not consider the plaintiff’s Heparin argument because it was not raised until after discovery while the case was pending trial. Had this argument been allowed, the hospital would have been prejudiced due to a lack of time and ability to investigate the argument further.

If a medical expert tries to argue that a less-common medical procedure or prescription should have been used by the doctors when treating the incident, the parties usually must have a special hearing called a Frye hearing. During the Frye hearing, the court will hear arguments from experts on both sides, as well as review evidence such as medical literature, to determine if the less common medical procedure or prescription can be treated as the necessary standard of care for purposes of trial. The party wishing to use that medical evidence must show it is viewed as reliable in the medical community.

If you or a loved one has suffered personal injury damages due to medical malpractice, you have legal options. Contact the medical malpractice and personal injury attorneys at the Law Offices of Thomas L. Gallivan, PLLC today to discuss your potential claims.


Keilany B. v. City of New York, 122 AD3d 424 (1st Dept., Nov. 6, 2014).

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