I am on trial in a nursing home case where some of the claims vs. my client are based on his alleged negligence as the NH’s Medical Director (his involvement in the care was limited to inconsequential telephone orders). I lost a SJ motion (without any analysis) and a motion to reargue (limited to an unrelated issue) and filed a note of appeal but did not perfect it (as I was not giong to get a stay in 2nd Dept). I submitted a MOL seeking to preclude expert testimony on this issue. I argued that the existence of a legal duty is question of law, that the PHL, including the regulation defining Medical Director’s responsibilities (22 nycrr 415.15), does not apply to physicians and is not a basis for a cause of action, that doctors in a group practice (such as my client and the named codefendants) are not vicariously liable for each other, and that there is no cause of action for negligent administration.
The judge denied it based on the denial of the SJ motions (presumably meaning law of the case).
My analogy is, if a defendant seeks a dismissal of Labor Law claims based on the fact that the accident happened during work on a 1 or 2 family house, and the IAS judge denies SJ, does that mean that the trial judge has to submit the question to the jury?
any thoughts
Peter