Christopher W. Hofmann

Christopher W. Hofmann (Associate-White Plains, NY) obtained a decision from the Bronx County Supreme Court granting complete summary judgment in favor of a large, certified home health agency client based in New York City. The action, sounding in negligence and medical malpractice, concerned skilled nursing visits provided to the plaintiff’s decedent, an insulin-dependent diabetic, at home following her admission to a non-party hospital. The plaintiff alleged that the agency failed to monitor the decedent’s blood glucose levels properly and failed to correctly administer insulin and/or monitor insulin dosages, resulting in a worsening of her diabetic condition. The decedent subsequently developed altered mental status, hypothermia, and hypoxia secondary to severe hypoglycemia, resulting in her death.

Chris moved for summary judgment, arguing that responsibility for administering insulin and monitoring the decedent’s blood glucose levels rested exclusively with the decedent’s caregiver. The motion was supported by a nursing expert who opined that the agency’s initial and ongoing nursing assessments properly determined that the caregiver demonstrated appropriate diabetes-specific knowledge and self-management skills, including recognition and treatment of hypoglycemia, insulin administration, and blood glucose monitoring. In further support of the motion, an expert geriatrician affirmed that the sole proximate cause of the decedent’s severe hypoglycemia and related symptoms was due to a medication error, namely, the administration of excessive insulin by the decedent’s caregiver. Plaintiff opposed the motion by arguing that the agency should not have allowed the decedent’s caregiver – an untrained “layperson” – to administer insulin and monitor the decedent’s blood glucose levels.

In granting summary judgment, the court found that the opinion of plaintiff’s expert was “pure speculation,” and agreed with Chris’s arguments that the opinion of plaintiff’s expert was conclusory, without evidentiary support, and outright contradicted by the medical records and testimony which established that the decedent’s caregiver had an long-standing history and demonstrated competence with respect to performing these tasks. The Court further agreed with Chris’s arguments that the sole departure raised in opposition was not previously pleaded, that the plaintiff’s expert physician was unqualified to opine regarding the standard of care applicable to skilled nursing, and that the plaintiff failed to explain how any alleged error by the decedent’s caregiver was attributable to our agency client.

​Christopher W. Hofmann (Associate-White Plains, NY) and Alan Friedberg (Senior Counsel-White Plains, NY) secured total summary judgment from the Westchester County Supreme Court on behalf of a large metropolitan hospital client in a medical malpractice action arising from the emergency department (ED) treatment of wrist fractures. The plaintiff alleged improper evaluation and treatment in the hospital’s ED, and that the codefendant orthopedic surgeon failed to timely and properly perform appropriate surgery to treat the wrist fractures, resulting in permanent disability, pain, and suffering.  Notably, plaintiff was an inmate at a New York maximum-security prison where Chris deposed him on two occasions. ​

Chris and Alan moved for summary judgment, arguing that the clinical examination and radiographic work-up of the plaintiff’s wrist injury in the ED was entirely appropriate, the ED providers properly and timely consulted orthopedics, and reasonably deferred treatment decisions to the consulting orthopedic surgeon regarding the management and treatment of the plaintiff’s wrist fracture. The motion was further supported by Board-Certified experts in emergency medicine and orthopedic surgery. The sufficiency of the underlying motion papers prompted the plaintiff’s counsel to move to be relieved as counsel. Unable to retain new counsel to oppose the motion, Wilson Elser’s motion for summary judgment was fully submitted and granted by the court.

Christopher W. Hofmann (Associate-White Plains, NY) and Alan Friedberg (Senior Counsel-White Plains, NY) obtained a Decision and Order from the Bronx County Supreme Court, New York, granting total summary judgment in favor of Wilson Elser’s clients, a Bronx hospital and its Chief of Orthopedic Surgery. The action arose from a left total hip replacement procedure in which the plaintiff allegedly sustained subsidence and periprosthetic fractures requiring revision surgery, hospitalization, and extensive rehabilitation. The plaintiff claimed the injury was caused by our client’s aggressive and forceful implant insertion and/or the use of an improper prosthetic. In seeking summary judgment, Chris and Alan demonstrated that the implants were properly sized, post-operative imaging showed no fractures, and the plaintiff’s complications were instead attributable to undiagnosed primary hyperparathyroidism – an endocrine condition associated with weakened bone and heightened fracture risk – subsequently diagnosed at a treatment facility. Their motion, supported by an expert Board-Certified Orthopedic Surgeon, persuaded the Court, which found that the plaintiff’s anatomy, not any improper medical practice, caused the subsidence and fractures, therefore granting judgment in the clients’ favor.

Michael E. Gallay (Partner-White Plains, NY) and Christopher W. Hofmann (Associate-White Plains, NY) successfully moved in Dutchess County Supreme Court for summary judgment on behalf of our nursing home client on the basis of immunity under the Emergency Disaster Treatment Protection Act (EDTPA). The plaintiff’s primary claim was that the facility failed to prevent multiple falls resulting in hip fractures requiring surgical reduction. However, the patient’s admission from March through July 2020, during the height of the pandemic, was significant for ongoing and worsening behavioral issues, and records clearly documented that the fractures resulted from multiple incidents during which she threw herself off her bed onto the floor despite multiple preventative measures. In addition to a strong defense to the underlying claims, Michael and Christopher successfully contended that EDTPA immunity applied given the time frame and absence of any viable claim for gross negligence. The Supreme Court agreed that the EDTPA was applicable, that our client made a sufficient showing of entitlement to immunity, and that plaintiff failed to raise a triable issue of fact as to whether immunity should attach. Notably, the Court found that plaintiff’s expert was conclusory since it failed to addressed the specific allegations of the Director of Nursing as to how the COVID-19 pandemic affected our client’s operations and the various aspects of the decedent’s care throughout her admission, including, in particular, the facility’s ability to implement enhanced observation, including 1:1 observation, and their ability to transfer the decedent to another facility for a higher level of care. 

Laura Jordan (Partner-White Plains, NY) and Christopher Hofmann (Associate-White Plains, NY) obtained a Decision and Order from Bronx County Supreme Court granting partial summary judgment in favor of a large New York City hospital. The plaintiff alleged that our client failed to timely perform a caesarean section as necessitated by indications of fetal distress in utero resulting in a hypoxic event and causing infant plaintiff’s subsequent cognitive and physical developmental delays and impairments. In moving for summary judgment, Laura and Chris argued, among other things, that there was no objective evidence that the infant-plaintiff suffered a perinatal hypoxic ischemic injury, including hypoxic ischemic encephalopathy, during labor and delivery that caused any alleged neurological injuries or any of the infant-plaintiff’s impairments. The motion was supported by the affirmation of an expert Board Certified in Obstetrics and Gynecology and Clinical Genetics with a subspecialty in Maternal Fetal Medicine; the affidavit of another expert Board Certified in Pediatrics, Psychiatry, and Neurology; and the affidavit of an expert Board Certified in Radiology with a special qualification in Neuroradiology. The parties were invited to conduct oral argument before the court, with Chris appearing on behalf of our client. Following the court’s partial grant of summary judgment, the plaintiff’s counsel dramatically reduced their demand from $3 million to $150,000, which is attributed to the breadth and sufficiency of the underlying motion papers. 

Laura Jordan (Partner-White Plains, NY) and Christopher Hofmann (Associate-White Plains, NY) obtained a Decision and Order from Westchester County Supreme Court granting their motion for summary judgment in favor an orthopedic surgeon and his practice group alleged to have failed to properly perform, supervise, and manage post-operative rehabilitation for a 46-year-old patient following right labrum repair. It was alleged that the premature introduction of certain exercises during physical therapy caused the plaintiff to sustain re-injury to his shoulder requiring further surgery that resulted in residual deficits in strength, range of motion, and functionality. Having performed the initial arthroscopy and labrum repair, our orthopedic surgeon ordered and oversaw the plaintiff’s course of post-operative rehabilitation, which included attending physical therapy at the practice group with co-defendant physical therapist who was employed by the practice group. In granting our motion for summary judgment, the court agreed with Laura and Chris that the plaintiff’s expert affidavit was insufficient to defeat our motion for summary judgment because it was submitted by a physical therapist who did not and could not include in his affidavit that he had personal knowledge of the standard of care in the field of orthopedic surgery. Because the claims against the orthopedic surgeon sounded in medical malpractice, arising from the patient-physician relationship, they argued that the plaintiff’s expert was unqualified to opine as to the applicable standard of care. The court also adopted our argument in reply that since plaintiff’s expert was a physical therapist rather than a medical doctor, he was unqualified to opine within a reasonable degree of medical certainty that any deviation was a proximate cause of the injuries. The court’s Decision also granted co-defendant’s motion for summary judgment, which merely adopted and incorporated by reference the expert submissions and arguments raised by Laura and Chris.