FMLA Case Survives Summary Judgment; Issue of Fact Existed as to Whether Plaintiff Required “Multiple Treatments” and Was Thus a “Serious Health Condition”

In Pollard v. N.Y. Methodist Hosp., No. 15-3231, 2017 WL 2818134 (2d Cir. June 30, 2017), the Second Circuit vacated the lower court’s grant of summary judgment to the defendant on plaintiff’s claim under the Family and Medical Leave Act of 1993, concluding (inter alia) that it “erred in holding that Pollard cannot, as a matter of law, establish a “serious health condition” under 29 C.F.R. § 825.115(e)(2)”.

From the Opinion:

The district court concluded that Pollard’s growth could not qualify as a “serious health condition” because it did not require or occasion “multiple treatments.” 29 C.F.R. § 825.115(e). In the district court’s view, Pollard received treatment for the growth on her left foot only during the visit in which the growth was surgically removed. The district court stated, “[T]he treatment of [Pollard’s] condition was complete once the growth was removed from her foot.” Pollard v. The New York Methodist Hosp., 134 F.Supp.3d 681, 695 (E.D.N.Y. 2015). Accordingly, the district court reasoned, “[P]laintiff received only one treatment for the growth on her foot: the surgery on March 28, 2013.” Id. at 696.

In the district court’s view, as we understand it, Pollard’s condition in question was the growth on her foot, which was eliminated by the surgery, so that her two post-surgical follow-up visits, at which the doctor examined the wound, changed the dressing, and removed the sutures, did not constitute treatment of the growth, but rather treatment of the wound created by the surgery. Once the growth had been removed, Pollard’s “condition” no longer existed, and her subsequent visits to the doctor for care of the surgical wound could not qualify as treatment of a condition that had ceased to exist. See id. at 695-96.

We believe this analysis depended on an excessively narrow concept of “treatment” that is not consistent with the regulation. We see no reason why post-surgical change of dressing and removal of sutures does not qualify as part of the treatment of the condition that occasioned the surgery—at least if such postoperative treatment was medically predictable from the outset.2 The Hospital made no showing that such follow-up visits for treatment of Pollard’s wound were not a routinely-expected, reasonably-required part of the surgical treatment of the growth. Accordingly, at least for purposes of the Hospital’s motion for summary judgment, Pollard satisfied 29 C.F.R. § 825.115(e)’s requirements of “[c]onditions requiring multiple treatments,” and a “period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider.” 29 C.F.R. § 825.115(e).

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