January 28, 2013

An Appeal Brings Up Questions in This Case

The defendant in this case is appealing an order that was made by the Supreme Court of Nassau County. The order directed the defendant to comply with a request for information prior to a hearing for medical malpractice.

Case Background

The plaintiff in the case alleges that she was a patient at the Westchester defendant hospital that had been notified by her personal physician that she was unable to go to the bathroom without help. She states that a nurse that worked at the hospital allowed her to go to the bathroom without help in order to provide a urine specimen. While the plaintiff was walking to the bathroom she fell down and suffered from serious injuries which included a broken hip.

Case for Appeal

The only issue that is raised on appeal in this court is whether or not the defendant has to be present at a hearing before a medical malpractice panel. The alleged malpractice suit is against a nurse that is employed by the defendant hospital.

Case Discussion

Until recently the law stated that a nurse could not be liable for a medical malpractice act. However, the new trend is that a medical malpractice panel be required when a hospital is named as a defendant, such as in this case. The recent cases have found that this type of panel must be conducted even if the malpractice case is alleged against a nurse or an emergency room attendant. For this reason, it is now assumed that a nurse can commit malpractice.
In this case, it is not alleged that the nurse did an act that is related to a medical diagnosis or that is within the expertise of a malpractice panel, she simply failed to follow an order from a physician.

Court Decision

After reviewing the facts of the case, it is determined that a nurse can commit medical malpractice and the alleged claims in this case set for a colorable claim. For this reason, the defendant hospital must appear before the medical malpractice panel. The original ruling of the Supreme Court of Nassau County is affirmed and the appeal by the defendant is denied.
Three of the four judges hearing this case concur with the decision and one justice dissents, voting to have the order reversed and holds that the defendant is not required to appear before the medical malpractice panel.

The dissenting judge states that while a nurse can be referred to a medical malpractice panel it is his opinion that the bill of particulars and pleadings must reveal that the plaintiff is making a claim that the nurse was performing specific duties that call for special training and talents. In this case the nurse simply handed the plaintiff a cup and asked for a urine specimen and then left the room, leaving the plaintiff to go to the bathroom without assistance. This is not a malpractice case, but one of simple negligence and should be carried forward as such.

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January 8, 2013

Liability Insurance is Under Investigation

The case before the Westchester court is an action for a declaratory judgment that the defendant insurance company is obligated to defend and indemnify the plaintiff under a lawyers professional liability insurance policy. The plaintiff is an attorney whose practice is concentrated mainly in criminal defense.

Case Background

The plaintiff attorney was retained to represent a defendant that had been indicted by the Nassau County Grand Jury and charged with various counts of sodomy in the first degree as well as several other forcible sexual conduct crimes with his daughter. The alleged acts were said to occur between March of 1995 and December of 1998. The victim was between 10 and 13 years old at the time the acts took place. The defendant was indicted in New York County for similar activity as well.

The defendant charged with the sexual misconduct is a non-practicing attorney. He went against the advice of the plaintiff attorney and waived his right to a jury on the indictment from the Nassau County court.

During the trial before the judge the victim daughter gave detailed testimony regarding the sexual abuse by her father. A physician testified during the trial as to the examination of the victim’s genital area. The doctorused a colposcopy in order to magnify the genital area and prepare photographic slides. The doctor testified that it was her opinion that the complainant had suffered from penetrating trauma to her anus and vagina.

A child psychiatrist also testified during the trial about child sexual abuse accommodation syndrome. The psychologist stated that it is common for abused children to not disclose the information until they are an adolescent. This testimony was to help explain why the victim had waited to report the abuse for so long.

The defense of the father was that the complainant had engaged in sexual activity with a boyfriend of her own age rather than vaginal and anal intercourse with her father.

The defendant was convicted on all charges by the judge in Nassau County. He appealed the conviction on the ground of ineffective counsel. The appellate court confirmed the convictions.
The defendant appealed the decision again and the appeal was granted on the basis of ineffective counsel. The judge found that by not calling a medical witness on behalf of the defendant resulted in prejudice of the defendant. As a result of this finding the defendant was released from prison and started a legal malpractice suit.

Current Case

The plaintiff in this case is the defendant in the legal malpractice suit. The insurance policy in question has a notice of potential claim provision and the company states that the plaintiff failed to provide them with adequate notice of the potential claim against him.

The defendant insurance company is seeking summary judgment in regard to being obligated to defend or indemnify the plaintiff in the malpractice action. The plaintiff has cross moved for a summary judgment stating that the insurance company is required to defend and indemnify him in the malpractice action.

Court Discussion and Decision

The court has reviewed the facts of the case and finds that the plaintiff failed to provide the company with adequate notice of the potential case against him. For this reason, the court grants summary judgment in favor of the insurance company and they are not required to represent the plaintiff in the legal malpractice case.

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December 21, 2012

Pension Fund is at the Center of this Case

This is a case of appeal being heard in the Supreme Court, Appellate Division and First Department. The original judgment was made in the Supreme Court of New York County and awarded $61,478.40 against the defendants.

Case Background

The plaintiff in the case provided medical malpractice liability insurance for a dental center. The premiums for the insurance policy were based on the number of outpatient visits and adjusted by a stabilization fund charge. The policy was renewed twice and at the end of three years there was a premium balance of $40,795. The plaintiff sued for these premiums and obtained a judgment on liability.

Before the damages could be assessed, the Dental Center in Nassau and the local union filed for bankruptcy protection. The plaintiff then started the instant action to recover the unpaid premiums from the pension fund and credit union. . Those two defendants appeal from a joint award that was granted on summary judgment.

The pension fund states that they had nothing to do with health benefits and that they are prohibited by law from diverting their assets to health benefits. The credit union also states that it had nothing to do with the operation of the Dental Center. Both defendants claim that the plaintiff added them as parties out of frustration of being unable to collect the premiums from the Dental Center.

Case Discussion and Decision

The Suffolk defendants in this case have made their point about not being liable for what the Dental Center owed for premiums. For this reason, the court is granting the appeal in favor of the defendants and the previous order is reversed. The case will be remitted to the Supreme Court for further proceedings.

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December 10, 2012

The complainant man went to the emergency room of a hospital

The complainant Nassau man went to the emergency room of a hospital complaining of weakness in his lower extremities and severe lower back pain. He had gone to the emergency room five days earlier complaining of left hip and back pain, and was sent home with pain medication. The pain persisted, and he began experiencing weakness in his legs, twice falling or nearly falling when his legs buckled. He was able to walk, though with difficulty. During his emergency room visit, radiographic tests, including a myelogram, were ordered, and the man was admitted to the hospital.

On the morning of 25 June 1994, the accused anesthesiologist explained to the complainant man that he would need to administer a caudal block rather than general anesthesia for the myelogram because the man needed to be awake during the test. The radiologist performed the myelogram around 3:00 p.m. that day. The next morning, the man discovered he felt no pain, was numb from his hips down, and could not move his legs. The Suffolk anesthesiologist and the nursing staff blamed the numbness and inability to move on the anesthesia, telling the man it had not yet worn off. The man thought this was strange because, in his experience, it usually took only four to five hours for the effects of anesthesia to wear off. He thought either something had gone wrong or his condition was worse than the doctors originally thought.

The myelogram revealed massive disc herniation causing spinal injury, and the accused man’s attending physician and neurologist advised the man that he urgently needed surgery. The neurologist performed a laminectomy and discectomy. However, the man remained paralyzed following the surgery.

He was discharged from the hospital on 1 July 1994 and had six subsequent office visits with the neurologist. On 3 August 1994, the man visited another doctor complaining of left shoulder pain. The doctor’s notes from that initial visit state that the man had back surgery about five weeks ago. He is paralyzed from the waist down. He states that he is paralyzed from a myelogram.

On 8 June 1995, the man served the neurologist with a notice of intent to initiate medical malpractice litigation and subsequently filed suit on 4 October 1995. The complainant man did not serve the attending physician, the anesthesiologist, the radiologist, and their employers with a notice of intent to initiate litigation until 3 January 1997. On 9 May 1997, he amended the complaint against the neurologist to add the attending physician and the others as accused.

The accused parties moved for summary judgment, arguing that the man served the notice of intent beyond the limitations period, and thus, his action against them is barred. Ruling that the statute of limitations began to run no later than 3 August 1994, the date of the man's visit and statement to his latest doctor, the trial court entered final summary judgment for the accused parties. The court noted that the man's paralysis is the type of injury which should start the limitations period running immediately. The man argues on appeal that the paralysis he suffered after undergoing the myelogram and surgery is not the type of injury which, standing alone, would have indicated that medical negligence possibly had occurred, thereby triggering the statute of limitations. He argues further there was a genuine factual issue regarding whether he told his latest doctor that he had been paralyzed from the myelogram or since the myelogram.

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence.

The nature of the injury, standing alone, may be such that it communicates the possibility of medical negligence, in which event the statute of limitations will immediately begin to run upon discovery of the injury itself. On the other hand, if the injury is such that it is likely to have occurred from natural causes, the statute will not begin to run until such time as there is reason to believe that medical malpractice may possibly have occurred.

The evidence before the trial court showed the man was ambulatory before entering the hospital, though he was experiencing weakness in his legs and severe lumbar back pain. More than twelve hours after undergoing the myelogram, the man discovered he was still numb from his hips down and his legs were paralyzed. Although medical staff told him the numbness and paralysis were caused by the anesthetic which had not worn off, he reasonably suspected something was amiss because, in his experience, anesthetic effects dissipate in four to five hours. The man's paralysis following the myelogram was sufficient to communicate the possibility of medical negligence. Therefore, the two-year statute of limitations began to run on or about 26 June 1994. As such, service of the notice of intent on 3 January 1997 occurred beyond the limitations period, and the man’s medical malpractice action against the accused is barred.

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December 7, 2012

This is a claim for medical malpractice against the state city

This is a claim for medical malpractice against the state city health and hospitals corporation brought by a mother, individually and on behalf of her son. The infant was born at one Nassau hospital and allege that the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital's mismanagement of the labor and delivery. Though the infant was transferred to another hospital and stayed for almost two weeks, he was then transferred back with the previous hospital where he received continuous treatment. It is also alleged that the infant suffers from brain injury and severe developmental delays.

At the beginning, the court had lack of authority to grant the leave to file a late notice of claim as to the mother's individual claims because her application is made more than one year and ninety days from the accrual of the incident. As to the infant's claims, based on the dates of the alleged malpractice, a notice of claim should have been served on the hospital corporations but the infant is the beneficiary of an infancy toll.

Further, entries in the medical records reveal that the infant was developing normally at the time of discharge and there is no indication of a long term injury. In the supporting affidavit, the mother admits to being aware of the conclusion by noting that at the age of three months her son had met all developmental milestones. A neurology visit note also supports the said conclusion. The mother also stated that about 17 months after her delivery, her son had once again met all milestones. The Suffolk mother stated that she did not learn of her son's alleged delays until some point and that it was not until more findings led her to believe that her son's injury was in fact related to his birthing process. It is evident that the mother could not have been aware of any damages attributable to the delivery within 90 days of the date of accrual, or a reasonable time thereafter, as there was no indication that the infant experiences any alleged delays. Consequently, the subject medical records alone do not support that the mother, by its acts or omissions, inflicted injuries to the infant and that the mother should have been aware of same within the applicable 90 days, or a reasonable time thereafter.

Based on records, the ignorance of the law requiring that a notice of claim be filed is not an acceptable excuse. Furthermore, there is no support for the assertion that the delay was the product of infancy or of the need to provide the infant with extraordinary care.

Finally, the complainant's expert explained in a conclusory manner that the hospital committed medical negligence and malpractice by failing to timely deliver the infant, resulting in damages. However, the complainant’s expert fails to offer the necessary nexus between the act of the opponents and any damage to the complainant that would put the hospital on notice that a claim would be filed with regard to the delivery at issue.

As the facts documented in the chart would not place the opponent on notice of a claim and the application is denied. Merely asserting that because the infant suffered a difficult neonatal course, the opponent was on notice of a malpractice claim is rejected. To prevail on the application, the complainant must establish that the hospital corporation had notice that the hospital departed from the standard of care in treating the infant, and that those departures caused the infant's injuries. As a result, the complainants have not established those elements and their application are denied.

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November 14, 2012

This case is being heard in the Supreme Court of Nassau County

This case is being heard in the Supreme Court of Nassau County. The plaintiffs of the case are seeking to recover damages for medical malpractice. The plaintiffs allege that as a result of the negligence of the defendants the infant plaintiff suffered from fetal complications including oxygen deprivation that caused brain damage and resulting complications.

Case background

The infant plaintiff was born on the 29th of April, 2004. By December of 2004 he was diagnosed with cerebral palsy, left – sided hemiparesis, motor deficit, delayed speech, and cognitive deficits. The defendant in the case is the obstetrician of the mother. He treated the mother at his office and at the hospital.

The defendant doctors conducted numerous tests on the plaintiff mother during the last few weeks of her pregnancy including ultrasound studies, biophysical profiles, and no stress tests.
The plaintiffs allege that the doctor was negligent by not adequately monitoring the plaintiff mother and failing to warn them about the possible conditions that might be of concern because of possible compromise of the fetus. Furthermore, the plaintiff states that the doctor failed to see the signs of pre-eclampsia and abnormal non-stress tests that showed a lack of movement and lack of breathing of the infant.

All of the Suffolk defendants of the case are seeking summary judgment to dismiss the complaints made against them. Alternatively, they challenge the admissibility of the proposed expert testimony from the plaintiff.

Each of the defendants has established their entitlement to summary judgment. They have fully established that all off their treatment of the plaintiff was in accordance with prevailing medical standards.

Case Discussion and Decision

In order for summary judgment to be granted the party seeking this type of judgment must prove without a doubt that there are no triable issues in regard to the matter at hand. Once the movant has established this burden moves to the other party who must establish that there are material issues of fact in regard to the case.

In this particular case the defendants have established that they provided the plaintiff with care that was in accordance to the standards of medicine. The defendants conducted the necessary tests before the plaintiff delivered the child and did not see any issues with the results.

The plaintiff has failed to establish any material issues of fact in regard to the case in respect to causation. For this reason, the complaint is to be dismissed in its entirety. As the ruling is in favor of the defendants in the case and the summary judgment is granted there is no need to grant the request of a Frye/Parker hearing for this particular case.

October 4, 2012

In support of his motion for late service of a notice of claim,

This is a medical malpractice case filed against the defendant hospital because of the negligence committed by its employees during plaintiff’s birth in September 1993. According to the hospital records, the medical employees in attendance gave his mother Pitocin, a drug used to facilitate the birth. The delivery involved two attempts at vacuum extraction and, ultimately, the use of forceps. Records show that the mother's pelvis was adequate to accommodate the baby's head and the birth was without complication. The infant weighed 8 pounds, 3½ ounces. His Apgar score was within satisfactory range: eight at one minute after birth and nine at five minutes after birth. The records also reveal that there were marks on his forehead from the forceps and his clavicle was broken. Because of the foregoing, plaintiff is presently suffering from epilepsy and developmental disabilities.

The record reveals that in 1995 plaintiff had an electroencephalogram (EEG), a test to trace his brain waves. The results were normal, but EEGs in 1998 and 1999 showed signs of abnormality. On September 5, 2003, 10 years after plaintiff's birth, his counsel sent defendant hospitals in Nassau and Suffolk a notice of claim alleging, in essence, that plaintiff suffered brain injury resulting from the hospital's malpractice during his delivery.

In support of his motion for late service of a notice of claim, plaintiff argued that section 50-e (5) contemplates "actual knowledge of the essential facts constituting the claim," not knowledge of a specific legal theory, and because defendant hospital is in possession of the medical records, they necessarily have actual knowledge of the facts constituting the claim. Plaintiff further argued that the delay in the service of claim was a product of his infancy.

In General Municipal Law § 50-e, the Legislature enacted a protocol for serving a notice of claim as a condition precedent to a suit against a public corporation. Section 50-e (1) requires that the notice be served within 90 days after the claim arises. The Legislature, however, gave courts discretion to extend the time and devised criteria for determining whether to grant extensions.

Section 50-e(5), the late-notice statute, directs the court to consider, in particular, whether within 90 days or a reasonable time thereafter the public corporation (or its attorney or insurance carrier) acquired actual knowledge of the facts underlying the claim. In deciding whether to grant an extension, the court must also consider a host of factors, including infancy and whether allowing late filing would result in substantial prejudice to the public corporation.

The hospital's records revealed that the delivery was difficult, but that when it was over, there was scant reason to identify or predict any lasting harm to the plaintiff, let alone a developmental disorder or epilepsy. The plaintiff's Apgar scores were satisfactory and even two years, later plaintiff’s EEG was normal.

The Court held that, under these circumstances, defendants could well have concluded that when plaintiff left the hospital there was nothing wrong with him beyond a broken clavicle. Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process. Since there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim.

With respect to Plaintiff’s other contention, A delay of service caused by infancy would make a more compelling argument to justify an extension. Conversely, the lack of a causative nexus may make the delay less excusable, but not fatally deficient. It all goes into the mix. The Court pointed out that, among other reasons for denying an extension such as lack of actual knowledge, the delay in the service of notice of claim was not the product of plaintiff's infancy.

The law contains a non-exhaustive list of factors that the court should weigh, and compels consideration of all relevant facts and circumstances, to sustain or deny grants of permission for late filing. This approach provides flexibility for the courts and requires them to exercise discretion.

In view of the foregoing, Plaintiff’s claim was denied by the Court.

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September 19, 2012

On 4 March 1986, plaintiff commenced a medical malpractice personal injury action

On 4 March 1986, plaintiff commenced a medical malpractice personal injury action against the defendant, a licensed physician, alleging that defendant was negligent in the care and treatment of plaintiff's infant daughter and ultimately caused the child's wrongful death.
In 1985, as part of a comprehensive reform of medical malpractice, the Legislature enacted CPLR 3406(a) which requires plaintiffs to file a notice of dental, medical or podiatric malpractice action within 60 days of joinder of issue. Plaintiff failed to timely file this notice. Thus, as a sanction, the Appellate Division dismissed the plaintiff's complaint and reversed the lower court’s decision; the court found that plaintiff had failed to proffer a reasonable excuse for her eight-month delay in seeking an extension and had not demonstrated the merit of her claims.

The Issues:

Was the dismissal by the Appellate Division proper?

The Ruling:

Here, defendant seeks dismissal of plaintiff's complaint as a sanction for plaintiff's failure to timely file the said notice rather than for any of the grounds for dismissal enunciated in CPLR 3211. Nonetheless, as with any other sanction, the courts of the herein State are empowered to grant the sanction of dismissal only when it has been authorized either by the Legislature or by court rules consistent with existing legislation. Sanctions may not be imposed by ad hoc judicial decision-making.

Upon a review of the relevant statutes and rules, the Nassau and Suffolk court can discern no authority for imposition of the sanction of dismissal for a plaintiff's noncompliance with the notice requirement of CPLR 3406(a). Besides, to allow the imposition of the sanction of dismissal may very well create the problems the Legislature sought to remedy and would contravene the purpose of the Medical Malpractice Reform Act. Neither the plain language of CPLR 3406(a) nor the structure of the newly enacted procedural scheme supports the conclusion that the Legislature intended dismissal to be a sanction for failure to timely file the notice. Moreover, consistent with the statute, the rules promulgated by the Chief Administrator do not authorize dismissal as a sanction for noncompliance with the notice requirement of CPLR 3406(a). While the rule tracks the requirement of CPLR 3406(a) and 2004 that an extension be granted only upon good cause shown, the rule authorizes only the imposition of conditions upon the granting of the extension. Outright dismissal upon a denial of the motion to extend cannot be viewed as such a condition because it immediately terminates the action and is not, in any way, conditional. Furthermore, like the statute, the rule authorizes dismissal of an action as a sanction only for noncompliance with the provisions relating to the pre-calendar conference. The standard for extensions of time articulated in CPLR 2004 does not provide any legislative authority for the dismissal of a plaintiff's complaint solely upon a failure to timely file the CPLR 3406(a) notice. That statute merely confers discretion upon the courts to either grant or deny a motion to extend time limits set in the CPLR, including the 60-day time period set forth in CPLR 3406(a). Where the extension sought is not an extension of the time to file a pleading, dismissal is not a necessary consequence of a denial of the motion.

Undoubtedly, the aforesaid construction of the legislative scheme is consistent with the underlying purposes of the tort reforms enacted in 1985. Although the reforms were intended, in part, to expedite malpractice litigation, as has been noted by some trial courts, the CPLR 3406(a) notice has itself become the subject of extensive pretrial litigation. To allow dismissal as a sanction for failure to timely file the CPLR 3406(a) notice would promote even more litigation on this collateral issue by encouraging defendants to litigate every instance of noncompliance. Indeed, defense counsel's obligation to zealously represent his or her client might well require that defense counsel seize the opportunity to attempt to obtain a dismissal on a mere showing of noncompliance with CPLR 3406(a) rather than risking a disposition on the merits (Code of Professional Responsibility DR 7-101). Moreover, dismissal may completely nonsuit the plaintiff as defendants commonly wait until after the expiration of the relatively short Statute of Limitations in medical malpractice actions to seek dismissal for noncompliance with CPLR 3406(a). In this case, for example, defendants waited six months before seeking dismissal of plaintiff's complaint and after the Appellate Division granted that relief, plaintiff commenced a second action which was held to be time barred. Thus, the Legislature never contemplated the imposition of such a draconian sanction for noncompliance, particularly, where the practical effect of such a sanction would defeat the very purpose of the Medical Malpractice Reform Act. 3

All the same, when a notice is not timely filed, a defendant truly seeking expeditious resolution of the underlying malpractice claim may move, even by order to show cause, to compel the filing of the notice. Once a defendant has obtained an order directing that the notice be filed, a plaintiff's disregard of such order may be deemed willful and construed as a deliberate effort to frustrate the calendar control rules promulgated under CPLR 3406(b). It is only in that case that a dismissal would be warranted. It would be a disregard of a court order directing the filing of the notice and its attendant authorizations.

In conclusion, the court finds that the Legislature has not authorized the imposition of the sanction of dismissal for noncompliance with the statutory notice requirement of CPLR 3406(a). The plain language of CPLR 3406 and the rules promulgated thereunder do not provide any authority for the imposition of the sanction of dismissal. The legislative history of the statute do not suggest that the Legislature intended that dismissal be an authorized sanction for a plaintiff's failure to timely file the notice. The authority to dismiss cannot be implied. Thus, the Appellate Division erred in dismissing plaintiff's complaint.

Additionally, the Appellate Division abused its discretion in analogizing the failure to timely file the CPLR 3406(a) notice to a pleading default and holding that plaintiff's motion for an extension must be denied because she had not demonstrated both the meritorious nature of her claims and a reasonable excuse for the delay. Failure to timely file the CPLR 3406(a) notice is not analogous to a pleading default. The notice requirement is a rule of calendar practice which functions to trigger the pre-calendar conference required by CPLR 3406(b). Unlike pleadings, the notice does not serve to apprise the adversary of a pending cause of action and imposes no obligation upon the adversary which may result in a default judgment against him or her. The stringent showing required to obtain an extension of time to file a pleading by a party already in default has no application here and plaintiff's motion does not fail simply because she did not submit an affidavit of the merit of her claims.

In the instant case, in seeking an extension after the time to file had passed, plaintiff averred that she did not deliberately fail to comply with the directives of the statute but was awaiting production of voluminous medical records to properly answer defendant’s demand for a Bill of Particulars, and serve defendant with the appropriate authorizations. This excuse amounts to little more than law office failure, especially since defendant had repeatedly demanded the authorizations. The court sees no reason to impose a more stringent requirement for the showing of good cause under CPLR 2004, particularly where, as here, there is no evidence that defendant was at all prejudiced by plaintiff's delay while plaintiff will be severely prejudiced if the motion is denied.

In sum, the order of the Appellate Division is reversed, with costs, and the order of the Supreme Court is reinstated.

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September 15, 2012

On or about 2 January 1975, defendant who is a physician commenced an action

On or about 2 January 1975, defendant who is a physician commenced an action against the plaintiffs in the District Court, Nassau County, to recover the sum of $750 for professional services rendered on or about 21 May 1974, with interest. A default judgment was entered in that action against the plaintiffs on 7 February 1975.

On 22 March 1976, plaintiffs commenced the instant personal injury action against a doctor and a Hospital for medical malpractice (for the injury sustained as a result of the negligence in the care of plaintiff) allegedly committed during the period between 27 May 1974 and 22 June 1974, in which issue was joined by the individual defendant on 27 October 1976. Thereafter, the defendant doctor moved, inter alia, to amend his answer to assert the affirmative defenses of res judicata and collateral estoppel and, in the alternative, a summary judgment. The plaintiffs then cross-moved for leave to serve a supplemental Bill of Particulars. The motion to amend defendant’s answer and the motion for summary judgment was denied. Thus, defendant doctor appeals the said judgment.

The Issues:

Was the denial of defendant’s motion for leave to serve an amended answer proper? Was the denial of the motion for summary judgment also proper?

The Ruling:

Under the law, in order to invoke the principles of res judicata and/or collateral estoppel as a defense to an action, it must be established, inter alia, that the issue in the prior action is identical and, thus, decisive of, issue in the current action. A judgment in one action is conclusive in a later one, not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first.

Here, the court finds that the necessary identity of issues is absent. According to the complaint in the prior action, the services upon which the doctor sued and recovered a judgment were rendered on or about the 21 May 1974, which is the same date from which the interest was designated to run. In fact, no other date was ever mentioned in that action. Consequently, the appellant from Suffolk should be bound by this formal assertion and should not now be permitted to argue that the judgment obtained in the District Court was for services rendered at any other time. When the plaintiffs commenced the instant action to recover damages resulting from the services rendered on and after 27 May 1974, an entirely new claim was asserted. There was and could not be any common issue. Hence, assuming the rule to be that a default judgment in favor of a doctor against his patient for services rendered bars a subsequent action for medical malpractice arising out of the rendition of the same services, the principles of res judicata and collateral estoppel can have no application where, as here, the underlying services and, perforce, the issues necessarily determined in the prior action were in no respect the same. Since the prior action, by its terms, at most determined the value of services rendered up to and including 21 May 1974, the plaintiffs, in all fairness, should not be precluded thereby from presently litigating the question of malpractice regarding the rendition of services thereafter.

In a nutshell, the appellant has failed to demonstrate the necessary identity of issues to preclude the later action. As the proposed amendment was patently insufficient, that branch of the appellant's motion which was for leave to serve an amended answer and for an accelerated judgment were properly denied. The lower court’s decision is affirmed.

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August 25, 2012

Medical Malpractice Suit Finds Hospital Negligent

A 30-year-old mother won a medical malpractice suit against a hospital. She was awarded $5 million. Her newborn’s birth injuries were the direct result of medical malpractice.

A source reports that medical records submitted to the court for the case show that the plaintiff’s medical history showed nothing to be concerned about in relation to her pregnancy. She had been progressing through her pregnancy normally as was expected. However, her midwife reports that she had to be taken to the hospital in the early stages of labor, dilated to 2cm.

An external fetal monitor was placed on her. About seven hours later, though, the monitor started detecting a decline in the baby’s heart rate, and was failing to show the complete tracing of the mother’s contractions.

The hospital has a standard set of procedures to ensure that the fetus and mother are properly monitored, but the staff – on several different occasions – did not follow that protocol – even when the mother herself began to show signs of distress. A Nassau/Suffolk doctor says that the baby’s position and fluctuations in the baby’s heart rate should have spurred the medical team into faster action, but it did not. And their neglect caused the child to suffer.

Testimonies and court records brought up one incident after another where alternative measures should have been considered. Especially after the plaintiff herself started to show signs of distress, the staff should have been alerted and moved into action, but the medical staff opted to handle the delivery for 12 more hours before the attending obstetrician was finally paged to intervene.

The obstetrician did decided that the baby needed to be immediately delivered, but he decided on vacuum assistance instead of a cesarean. Babies undergo more traumas with the vacuum than with the cesarean. He was able to deliver the baby quickly, but the damage had already been done. Because of the failure of the staff to follow protocol, the child was born with severe brain damage and began to go into seizures shortly after birth.

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August 23, 2012

When a family member dies, it is a heartbreaking time for the rest of the family

When a family member dies, it is a heartbreaking time for the rest of the family. That is made especially true if they are not permitted to honor the memory of their loved one in accordance with their traditions and religious beliefs. In the case of New York, there are laws that are in place to ensure that when a loved one dies, they are placed in a situation that will ensure that every effort is made to locate the next of kin and return the body to them for burial. These laws refer to sepulcher. Sepulcher is the right of a family to inter their kin in the manner that they deem appropriate. It is a recognized right in the state of New York, but that is not the way that it was always done.

In the early 1800’s, medical schools and body snatchers ran amuck in the city of New York. Many families were faced with the loss of the body of a loved one. There was a demand for the legislature to create laws that made it illegal for a person to steal a body or otherwise interfere with the right of a family to possess the body of their loved one. The legislature was faced with a problem about how to word such a fundamental right. The question arose as to whether the theft of a body was a theft of property that belonged to the family. Initially, the laws were worded to reflect the body as the property of a family. However, as laws usually do, they evolved over the years so that the right of sepulcher for a family to possess the body of a loved one was viewed more as a violation of a right to seek the solace of the ritual of a burial than it was a question of a theft of property. That evolution caused a new factor to be raised as it regarded the loss of bodies in morgues throughout the state. The right of sepulcher became an issue of the emotional distress that is caused to a loved one when the body of their family member is not immediately available to them. It is from this evolution of legal statute that the present case came into existence.

On October 28, 2001, a famous playwright , Leonard Melfi died. He was famous for writing the one-act play the Birdbath and he was instrumental in the writing of the Broadway hit play, Oh: Calcutta! He had been a resident of a welfare hotel on the upper west side of Manhattan called the Narragansett Hotel at the time that he collapsed. The Emergency Medical Services personnel filed a report of their interactions at the scene of Mr. Melfi’s collapse. Their report stated that the famous author was in respiratory distress at the time of their arrival. They recorded his address, date of birth, social security number and his next of kin with her phone number on their report. Mr. Melfi was transported to Mt. Sinai Hospital where another report, this one by the emergency room patient registration team was filled out with the same information. The triage report that was filled out on Mr. Melfi only showed that he was fitted with an oxygen mask and that no further treatment was administered to him. The attending physician in the emergency room diagnosed Mr. Melfi with congestive heart failure and atrial fibrillation. He prescribed a drug to slow Mr. Melfi’s heart rate, but again, the record does not show that any other treatment regimen was provided to him. The billing statement of the hospital showed that Mr. Melfi was treated by nurses who did a pulse oximetry, catheter placement, and electrocardiogram, but there is no report of these actions being taken in the patient’s care records.

What is clear is that minus the addition of further treatment protocols, Mr. Melfi’s condition deteriorated quickly and that he stopped breathing and was unresponsive. The records do not reflect that any attempt was made to resuscitate Mr. Melfi once his life signs ceased. He was pronounced dead at 6:20 P.M. that night.

The death certificate that was prepared in the hospital included his name and age, but did not have any of the additional information that had been on the EMS or emergency room reports regarding his social security number and next of kin. The emergency room doctor later stated that he had personally attempted to telephone the next of kin two times that night without success.

The policy of the hospital when a person dies in their care is for the emergency room doctor to make two attempts to contact the next of kin. Then the doctor hands off the case to the nursing supervisor who will make attempts to contact the next of kin that includes telephoning them, sending a police officer to the address, and sending a telegraph to the address. If there is no contact, the nursing supervisor is supposed to contact the police department to follow up on the death and locate the next of kin. There is no record in Mr. Melfi’s case that any of this was done. In spite of the testimony from the doctor that he made two phone calls, there is no documentation showing that these calls were ever made.

Mr. Melfi’s body was in the morgue at Mount Sinai Hospital for one month. On November 21, 2001, when the death certificate was filed with the New York City Department of Health, a burial permit was issued within ten days. He was then transferred to the city morgue at Bellevue Hospital where according to the record, no one there made any attempt to locate his next of kin. This is true in spite of the fact that the city morgue has in place a policy to do an investigation into the location of the next of kin of a subject who arrives in their care. However between the time that he was transferred to the city morgue on November 28, and December 20, 2001, his body was loaned to the Nassau Community College’s Mortuary Science Department where it was used for practice by the mortuary science students.

On December 20, 2001, his body was taken to the City Cemetery on Hart Island commonly referred to as “Potter’s Field.” He was buried in a mass grave with 150 other unclaimed bodies until two months later when his niece was contacted by his landlord. His niece who is a New York State Trooper contacted her father and informed him that she had been notified by the landlord of Mr. Melfi that he had passed. She was contacted by the landlord because she had met him on her visit with her uncle just one week before he died.

The family, in distress contacted the hospital and eventually located the burial site and had Mr. Melfi’s body exhumed for proper burial in their family plot. They filed a lawsuit for loss of sepulcher.

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August 2, 2012

Blisters around Infusion Site

A female patient recently underwent surgery to treat carpal tunnel syndrome. She had been suffering from this condition for years along with hypothyroidism, hypertension and diabetes. Before the surgery was due to start a nurse gave the patient a full checkup and put an IV line into the arm of the patient. The physician requested 5% dextrose, with 40mEq of potassium chloride; the infusion was started while the patient was waiting for the surgery to start.

The Nassau patient was due to undergo surgery shortly after the infusion started. However, as the first operation was more complicated than thought her surgery was delayed. This meant that the patient needed to wait longer than four hours before the surgery started. Around two hours after the IV line was started, the nurse noticed blisters around the infusion site. After surgery these blisters remained and caused necrosis which lead to painful scars.

According to the case details obtained by the Lawyer, the patient thinks that the problems were caused because the catheter was not inserted correctly. This meant that her arm developed eschars which became very painful.

To deal with this the patient required further procedures to remove the excess skin. However, this left scars which she still has to this day. This injury also causes her pain whenever the scar tissue is stretched. Because of this the patient was forced to give up her day job.

The patient hired an Attorney to help file a case against the medical center. The patient alleges that the staff was negligent in their care by not inserting the catheter correctly and not monitoring the site of the infusion. The medical center argues that this symptom is a well-known risk which can be caused by inserting an Intravenous catheter. The Suffolk medical center also explains that the nurse who inserted the catheter has over 20 years of medical experience and has a good reputation for caring for patients.

The lawyers for the medical center made a settlement offer of $1.5 million to cover past and future pain and suffering.

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July 2, 2012

Surgeon Operates on the Wrong Eye of a Young Boy

According to parents of a four-year-old, doctors were supposed to operate on their son’s right eye. The surgery was supposed to stop the boy’s eye from wandering. His parents report that that not what happened.

According to the parents, his eye surgeon first mistakenly operated on his left eye. When she realized her mistake, she then repeated the same procedure on his right eye – the correct one. As their son recovers from this medical mistake, they are concerned that they are observing more problems with the boy’s vision than they did before the surgery.

The mother of the young boy says to a Lawyer that she has not noticed any improvement in the right eye. She says she might even be seeing the left eye now wandering – when it didn’t before the mistaken surgery. She is worried about what the unnecessary surgery has done to his vision and what it could do in the future.

The doctor who practices in Nassau and Suffolk has not been reached for comment.

Right after the surgery, the doctor told the parents that “frankly, I lost sense of direction and didn’t realize I had operated on the wrong eye until I was done operating on the eye.”
The Chief Administrative Officer of the hospital where the surgery took place said that there are procedures in place to help prevent mistakes like this. A source reports that the hospital’s critical incident team will be responding to the surgery mix-up. They will interview all of the staff present in the operating room. “Our hope is to never have it happen again in any of our hospitals,” the hospital Chief Administrative Officer said.

The child’s father reports that the team had come into the boy’s room prior to the surgery and circled the eye they were to operate on, but for some reason the doctor still proceeded with the surgery on the incorrect eye.

The parents have hired a lawyer and are considering a malpractice suit.

While hospital representatives assure their patients that they are doing everything they can to ensure they are doing the procedures they intend to do and achieving the results they intend to achieve, perfection is not always attainable.

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June 28, 2012

The Fund for Injured Infants Evaluated

New York governor Cuomo recently attempted to impose limits on medical malpractice lawsuit awards. He was doing this in an attempt to control the state’s health care costs. The measure did not pass and thus there can still be large malpractice awards won in the state of New York.

Arguments made in Nassau and Suffolk in favor of limits on medical malpractice lawsuits usually revolve around curtailing the rapid rise of overall medical costs which are due in part to large monetary awards given in malpractice cases. Opponents of limits say that any limit on a doctor or hospital’s liability greatly reduces their incentive to reduce errors and provide the best possible care, says a source.

Despite the unsuccessful measure which would have limited awards, the governor did manage to enact a fund for infants which were harmed due to medical malpractice. The fund would provide for future medical costs related to the medical errors that lead to further complications and medical expenses. The governor believes that the fund will better provide for the children than a one-time jury award would. The fund would cover increasing medical costs due to inflation and new technologies.

If the fund were to run out of money at some future point or be significantly depleted, lawsuits would once again be allowed against the responsible parties, explains a reporter. Though the specifics of the fund have not been finalized, several patient advocacy groups have already begun campaigning against the fund. The involvement of the government in the care of injured infants, who may require a lifetime of care, is not an ideal solution; they say that the families of these children will face endless bureaucracy as they attempt to seek care.

Patient groups say that the main beneficiaries of the new system are the doctors and hospitals who will save millions of dollar in malpractice insurance premiums, says a rep. Proponents of the fund say that everyone will win because the fund will lower health care costs for all health care consumers. At this point, there is no set start date for the fund.

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June 11, 2012

Temporary Doctor Fired Due to Incompetency

A doctor who was in the United Kingdom (UK) serving as a LOCUM, or temporary, doctor was struck down for being both incompetent and dangerous. The Italian doctor had been booked as a LOCUM doctor in July 2008 through an agency as a locum Senior House Officer (SHO) for general surgery.

This strike down is the result of a lengthy investigation by the General Medical Council (GMC) that regulates doctors in the UK. The GMC heard from many medical professionals as they gave their accounts of the doctor’s medical competency, or the lack thereof. One of those testified that they had never seen anyone perform so poorly even at the undergraduate level. Another stated that the doctor did not even know the proper technique to ‘scrub up.’ The term ‘scrub up,’ refers to the thorough washing that surgeons do before they perform an operation.
Reports indicate that this doctor was so bad that he was not aware of common medical reporting procedures, and even some of the medical terminology that is understood even by non-medical hospital staff members. As an example, officials confirmed to a reporter, that the doctor thought that a ‘crash’ call referred to a car crash. In medical terminology, a crash call refers to a patient being in cardiac arrest.

The GMC not only heard testimony about the doctor’s medical skills, they also heard witnesses state that the doctor also lacked any competency in dealing with patients. There was one report of the doctor having slapped a patient in order to see if they were conscious. It was also reported that the doctor spoke very little English, which also led to communication difficulties since few patients, or staff the doctor had dealings with spoke any Italian.

An Attorney also learned that the doctor had practiced at a total of 14 different hospitals in the UK before he was reported to the GMC. Although his CV and references were inspected before, he was allowed to work as a locum doctor, the GMC is not allowed to ‘test’ doctors that arrive to work from any EU member states. The answer may be a surprise. The reason is simply stated, “It restricts the free movement of labour."

Hospitals in Nassau and Suffolk have dealt with this kind of problem.

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June 9, 2012

$7.6 Million Awarded to Paralyzed Teen

In 1978, a teenager’s spinal cord was destroyed by medical professionals who were administering radiation to fight thyroid cancer. As a result of the trial that stemmed from a lawsuit the girl filed against the hospital and pertinent staff involved, the jury awarded $7.6 million to her. Most of the payments are going to payoff medical bills that have amassed because of malpractice.

At the time, it was believed to be the single, largest payment awarded in a malpractice suit in the United States.

The 18-year-old expressed thanks when she said that the jury was full of “wonderful people and now I have a chance for my life.”

The hospital’s legal counsel argued that the case was circumstantial at best. They also whined that the verdict was excessive. When asked, they said they would be pursuing an appeal of the jury’s verdict.

The wheelchair-bound girl was paralyzed in 1972 while she was receiving radiation therapy for a slow-growing thyroid cancer. The cancer was supposedly treatable, and as the standard procedures called for, she was to go through a six-week cycle of radiation treatment. As of the trial, she was not suffering from cancer anymore, but it was unknown how she had been cured of it.

Reports said that knowledgeable witnesses from the field of medicine testified at the trial that the paralysis was definitely caused by a double dose of radiation that hit around the voice box and destroyed the girl’s spinal cord.

That overlap of radiation fields was blamed for her paralysis, doctors said, even though no one took responsibility for it.

As appropriate, the jury was told that the young woman needed 24-hour care since, and because of, the incident. Her minimum costs for medical expenses each year was $55,000.
The hospital’s defense team from Nassau and Suffolk, said the paralysis was only due to an unusual reaction to the radiation and nothing else. They refused to accept any responsibility for an overdose. Again, he planned on appealing the “excessive” verdict.

Even after 10 surgeries, the young woman is expected to spend the rest of her life as a quadriplegic. The only appendage she has any use of is her right arm, but it is nearly useless.

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June 4, 2012

Chicago Nursing Home Faces Closure Over Patient Deaths

A long-term care facility, more commonly referred to as a nursing home, is where many of those whose needs require more constant care than what a short-term care facility like a hospital can provide. They are also, where many of the long-term and terminally ill spend their remaining time before they die. These facilities are supposed to treat those persons whose care they have been entrusted with the utmost dignity and respect. Unfortunately, there are many cases that these facilities are anything other than trustworthy. A doctor has learned of one such facility that may fit into this category.

Equip for Equality, which is a watchdog group with the support of the federal government, recently conducted an investigation into a nursing facility for disabled children and young adults in Chicago, IL. The facility is facing closure as a result of an investigative journalism story by the Chicago Tribune that detailed death and neglect within the walls of the nursing facility.

Among the allegations that Equip for Equality is making toward the nursing facility is of destroying medication error documents, patients not being treated properly, doctors ignoring pages and lab reports, and internal investigations were sketchy at best.

One such incident is the case of the death of a 14-year old girl who breathed with a ventilator. According to Equip for Equality’s report, the girl died of pneumonia due to the lack of care and neglect of the doctors and the facility. Her lab results indicated that she had a “heavy growth” of Pseudomonas aeruginosa--a bacterium. A week later, the girl was diagnosed as having pneumonia after having a chest x-ray. The doctor prescribed antibiotics that, as the report claims, that particular strand of pneumonia are resistant.

When she was hospitalized a short time later, Pseudomonas was found again. This time she was given an antibiotic that worked. The problem is that she was soon returned to the nursing facility that would soon run-out of that type of antibiotic. She went for two days without receiving antibiotics. Although she would receive another series of the proper antibiotics, she continued to be overcome with Pseudomonas. The doctor was notified, but he ignored the notifications for two days. Three days after the doctor gave an order to resume antibiotics, the girl died.

A spokesman who also reps hospitals in Nassau and Suffolk for the nursing facility stated that the girl died of natural causes and that they did everything for her that they could.

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June 2, 2012

USC Corrects Implant System After Kidney Was Transplanted in Wrong Patient

The University of Southern California (USC) claims they have corrected what they term a flaw in the system that allowed a group of surgeons to transplant a kidney into the wrong patient last January. The wrong transplant occurred when the wrong organ ID wound up on the wrong paperwork. Once that mistakewas made, surgeons were essentially given the okay to proceed with the transplant.

One of the things that a rep has learned is that this ‘rare’ occurrence is not unique to USC. There are similar procedures in use at other transplant centers across the country. The ‘rare’ event started as two kidneys arrived at USC for transplant on the same day. The USC University Hospital performs two transplants a week at the most. Another contributing factor to this rarity is that both kidneys were for the left side, and both kidneys were for someone with type O blood.

Normally, the nurse is to record the operating room booking slip, which includes the organ donor ID number. On this occasion, no number had been recorded. At this point, the nurse is supposed to transfer the number from the operating room booking slip to a blood verification form. This was to serve as a final verification that the blood types and correct organ are matched. Sources have said that since there was no organ donor ID number on the booking slip, the nurse got the number from the box that contained the kidney. The problem is that was the wrong kidney.

The final check and balance that occurs at that point of the process also failed. It failed since the nurse had gotten the wrong number from the wrong location. This meant that the doctors and nurses all verified the wrong number. The operation proceeded.

Fortunately, the patient that received the transplant that day survives and is reportedly doing well. Everyone concerned is fortunate that the organs were of the same blood type. The person that was scheduled to have received that kidney is still on USC’s waiting list, however.

Although state and federal authorities continue to investigate what went wrong, this same system flaw had gone unnoticed by many for a very long time. It had even gone unnoticed from the same state and federal investigators that are now investigating the incident. In the meantime, USC has made their necessary improvements to their system in order to ensure that this does not happen again, and will resume their transplant schedule. So
have hospitals in Nassau and Suffolk Counties.

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April 23, 2012

Medical malpractice cases involving a set of horrendous mistakes that result in a botched birth

When their baby was born with spina bifida, aka a congenital neural tube defect, the parents filed a medical malpractice and wrongful birth lawsuit stating that they had not been told about the purpose of a blood test, referred to as the Triple Marker Test or Alphafetoprotein test, offered to them during the pregnancy, which was to determine if the baby had spina bifida. As a consequence of not being told, the mother did not have the blood test said the Lawyer.

The parents felt that by not being told about the reason for the blood test that they were denied the chance to make an informed decision about continuing the pregnancy or not. When their child was born with a defect, both were devastated and filed for economic and non-economic losses, along with a claim for wrongful life. This motion to hear the claim for wrongful life was precluded and only the parent’s claims were heard.

The jury trial found in favor of the plaintiff parents and awarded past and future economic damages totaling $5 million. Another $5 million was handed down in non-economic damages to the mother and a further $2 million to the father, reported the source.

Medical malpractice cases involving a set of horrendous mistakes that result in a botched birth with the baby being born with a birth defect are tough and emotionally difficult cases. There is no question that plaintiffs in a situation like this need the experience and expertise of a Lawyer.

When doctors in Nassau and Suffolk are responsible for making sure their patients get the best of care and treatment, they need to live up to that responsibility and not let things fall through the cracks. Not providing vital information to a pregnant mother about a crucial test is not living up to the accepted standard of medical care. When in doubt about a birth injury your baby may have sustained, always seek an experienced expert to find out your rights.

March 17, 2012

Birth injuries may happen either before, during or just after birth

Birth injuries may happen either before, during or just after birth and typically tend to involve oxygen deprivation to the child’s brain. These kinds of birth injuries are usually referred to as hypoxic brain injuries and in most cases, the child’s life will never be normal. Depending on how severe the birth injury is, the child may require medical care for the rest of their lives and never know what living a normal life means, explained the spokesperson.

The parents in this case were expecting a normal delivery and weren’t anticipating any difficulties with their baby. They trusted their doctor to do the right thing. Unfortunately, while the doctor was trying to do the right thing, he made three egregious errors that forever changed the baby’s life. He burst the membranes in her head, didn’t resuscitate her properly and didn’t immediately order a C-section. This resulted in medical malpractice.

As a direct result of this doctor’s errors, the baby sustained a hypoxic brain injury and for the rest of her life she and her parents will deal with her inability to hear properly, her learning disabilities and her cerebral palsy, indicated the report. Hospitals and doctors in Nassau and Suffolk Counties have had to learn to deal with these situations.

For anyone who suspects that their baby has sustained birth injuries, it’s advisable to contact a competent rep and find out what a medical malpractice case involved. They are complicated, convoluted and take a fair length of time to settle or go to court. This is why time is of the essence in speaking to a knowledgeable med mal lawyer right away.

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February 5, 2012

Kansas Supreme Court Orders a Re-Argument In Medical Malpractice Lawsuit

A Topeka Chief Justice ordered on Friday for re-arguments to begin in the Kansas Supreme Court on a highly watched medical malpractice lawsuit to begin on February 18th. The Kansas Supreme Court first heard arguments in this case in October of 2009 and has not issued a decision.

A source disclosed that the case is based on a Eudora woman who went in for surgery to have her right ovary removed in 2002. Instead, the surgeon removed her left ovary. The woman sued for malpractice, and in 2006 the Douglas County jury returned a verdict of $759,680. This award includes medical expenses, non-economic losses and future non-economic losses, future medical expenses, and loss or impairment of services as a spouse. The non-economic losses were awarded for pain, disability, suffering, mental anguish and physical disfigurement.

According to a report, a District Court Judge slashed several of the award amounts because of a Non-economical cap that is in place. The woman’s attorneys claim that this has violated her personal constitutional right to a trial by jury, and infringes on the constitutional authority of the judiciary. Doctors, businesses and companies support the cap, saying that it keeps health care and insurance costs down.

A rep stated that since the case was first heard in the Kansas Supreme Court that changes have been made to the judges who will review the case. One passed away, and one has asked to excuse him from the case, and will be replaced by someone else. The woman has currently not received any compensation from her case. Doctors in Nassau and Suffolk are aware of this case.

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January 30, 2012

Los Angeles Medical Malpractice Lawsuit Settled

A $1.175 million medical malpractice settlement between Los Angeles County and a patient of Harbor-UCLA Medical Center has been reached. The patient of the Harbor-UCLA Medical Center suffered a punctured blood vessel.

The claim took place after the patient, a minor at the time, received treatment at the Harbor-UCLA Medical Center in November of 2008 for injuries she sustained following an automobile accident, tells a reporter. Her guardian filed the claim.

According to the word received, a catheter tip that was being inserted into the patient accidentally punctured a blood vessel wall. This medical mistake caused the patient undisclosed further medical complications, and she was treated and released several days later. No further information was available pertaining to any medical problems that may have arisen from the medical accident.

The malpractice lawsuit was filed on June 3rd, 2009 in the Los Angeles Superior Court. A rep says the lawsuit accused the county-run hospital of negligence. On January 4th, the Los Angeles County Board of Supervisors approved the settlement of the case.

County officials in Nassau and Suffolk stated that they could not successfully fight the claim because of the Res Ipsa Loquitur doctrine, which states that the person is presumed at fault even if there is no evidence of negligence, as long as they were in control of whatever it was that caused the injury. As a result of this settlement, the nursing staff at the Harbor-UCLA Medical Center has undergone catheter re-education.

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January 21, 2012

Health care remains a problem due to fear

Is too much money being spent on dying patients? 60 Minutes on the CBS News recently aired a segment called "The Cost of Dying," which was a breakdown of events that happen with patients in hospitals in the Intensive Care Units and the high costs associated with keeping them alive, said a new study.

75% of our nation’s deaths occur in hospitals, and it was estimated on the show that patient’s lives are prolonged in some cases for up to $10,000 per day and that in America the last two months of patient’s lives is costing Medicare $55 billion. According to a report, this might be unnecessary 30% of the time.

In one of the cases mentioned on the show, 25 additional doctors were called in as consultants on a dying 80 year old woman. Each doctor received $100 or more for five minutes of their time, said a representative, and added that Medical Insurance Companies make it difficult for these doctors to do much else.

Doctors are increasingly fearful of medical malpractice lawsuits for misdiagnosis so they are calling in as many other consultants as they can to share the blame if something should go wrong or is overlooked. Studies speculate that this problem isn’t going away anytime soon. Hospitals in Nassau and Suffolk are aware of this study.

Many doctors are simply doing what they can to stay afloat and as a result are billing Medicare for as much as possible, because they can. Experts call this a sad situation that isn’t getting any better.

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January 10, 2012

$633K Award offered in malpractice case

In a civil court in the country of Cambria, a man received an award of over $633K to compensate him in a medical malpractice case, according to a report. The man claimed that the care that he received was negligent and as a result he had to have his right leg amputated.

The man sought the help of a good medical malpractice lawyer who filed the lawsuit on behalf of his client against the doctors that he claimed committed this act against him. The source was quick to agree that the man did have a legitimate claim.

The case went before a jury that took two and a half days to deliberate the case and come to a desirable verdict for the man and his wife. They agreed with the man and the report that the man received unsatisfactory care that was definitely below the standard of medicine.

Of course, according to the expert, the defendants in question took the imitative to appeal the case. Hospitals in Nassau and Suffolk try to avoid these situations.

According to news report, the man went to the doctor with an extensive medical account of vascular disease after he felt excruciating pain in his right leg. The man was sent to another Medical Center where he became a patient and was care for by two other doctors. The man’s lawyer indicated that there was a considerable delay in diagnosing his client and therefore, surgery took a long time, which eventually resulted in the inevitable amputation.

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December 29, 2011

Sponge left in Abdomen

According to a reporter, a woman claims to have had a sponge left in her abdomen after surgery. She claims to have gone to her OB/GYN and that her doctor had left something foreign in her abdomen after she did a Caesarean section operation.

The woman claimed medical malpractice against the doctor who performed the operation. She claimed that the obstetrician performed the operation without having the proper medical assistance. She thinks that this is what probably caused the problem of her having to suffer a potential hernia.

The expert agreed that the woman had a viable complaint and that the doctor was negligent. When the woman began to feel pain in the abdomen, she sought medical attention and discovered that the lower part of her left abdomen had a sponge marker. She had to have it removed surgically claims the advocate.

The lawsuit complaint consist of the unreasonable notice that the complainant was afforded and that she was not give adequate medical follow up care after surgery. The complainant is seeking an undisclosed monetary damage. Her medical malpractice action is seeking retribution for her and feels that the doctor should have maintained the appropriate relationship with the patient in order to give her the best advice and best treatment possible in this situation.

The woman, according to the facts, has a chance to receive a settlement award for her pain and suffering; both physically and mentally. Hospitals in Nassau and Suffolk do their best to avoid these situations.

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December 20, 2011

The jury trial found in favor of the plaintiff parents

When their baby was born with spina bifida, aka a congenital neural tube defect, the parents filed a medical malpractice and wrongful birth lawsuit stating that they had not been told about the purpose of a blood test, referred to as the Triple Marker Test or Alphafetoprotein test, offered to them during the pregnancy, which was to determine if the baby had spina bifida. As a consequence of not being told, the mother did not have the blood test, said the source.

The parents felt that by not being told about the reason for the blood test that they were denied the chance to make an informed decision about continuing the pregnancy or not. When their child was born with a defect, both were devastated and filed for economic and non-economic losses, along with a claim for wrongful life. This motion to hear the claim for wrongful life was precluded and only the parent’s claims were heard.

The jury trial found in favor of the plaintiff parents and awarded past and future economic damages totaling $5 million. Another $5 million was handed down in non-economic damages to the mother and a further $2 million to the father, reported the newspapers.

Medical malpractice cases in Nassau and Suffolk Counties involving a set of horrendous mistakes that result in a botched birth with the baby being born with a birth defect are tough and emotionally difficult cases. There is no question that plaintiffs in a situation like this need the experience and expertise of a knowledgeable expert.

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December 8, 2011

Medical Malpractice filed for breast implants

An observer reported that a woman in Carrollton has taken the initiative to file a federal lawsuit for compensation from the U.S. government. The woman alleged that she was not given the correct size implants that she had ordered for her breast implantation. Her lawsuit states that she had wanted a much larger sized implant.

According to the evidence, the woman has alleged to have traveled miles away from home to have the procedure done. It was at that time that she found out that there was a terrible mistake in what she had ordered compared to what she was getting.

The evidence indicates that the woman’s lawsuit is for $150,000 in which the woman is seeking pain and suffering damages, mental agony as well as her travel costs.

It was after her surgery that the woman decided to file this lawsuit as she was probably given advice by an expert in medical malpractice . The woman is not alone in cases of medical malpractice when it comes to surgical operations with breast implants. The media reported the story and many from the public were shocked that this kind of lawsuit would be permitted especially in a Federal jurisdiction. Cases like this are not uncommon in places like this Nassau and Suffolk.

The woman was adamant in getting the amount in settlement that she claimed for. She believed that she was deserving of every cent because of the emotional damage that it had caused her. She felt betrayed by her doctors and felt that the legal system should prevail in her medical malpractice case.

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December 3, 2011

Pregnancy gone wrong, results in birth of stillborn child

This medical malpractice lawsuit was filed on behalf of a woman whose delivery was botched so badly that she delivered a stillborn child. The facts of this case are really heart wrenching.

Jane Doe was pregnant in 2009 and a patient at a local women’s clinic. Doe was diagnosed with gestational diabetes in the last stages of her pregnancy. During week 39 of her pregnancy, she went to the health center concerned about discharges she was having. Her blood sugar level was very high. When her primary care doctor found out about the high blood sugar level, he told medical staff to send her home, tell her to consume more water and put her feet up. The doctor never personally “saw” his patient at that time.

For the next six days, the woman kept having discharges and called the ER many times to discuss her symptoms. She was told to put her feet up and drink more water and that her symptoms were normal, because she was dehydrated.

The woman went into labor shortly thereafter and another doctor handled her treatment. They couldn’t find a fetal heartbeat. An exam revealed her membrane had burst and had left virtually no amniotic fluid. Her primary care doctor was called and he arrived an hour later and confirmed there was no fetal heartbeat. Despite the fact that the mother had a narrow pelvis and was to deliver a stillborn, the doctors chose to proceed with a vaginal delivery.

The labor was brutal and excruciating and the woman gave birth to a 9-pound dead baby. The condition was horrendous as a result of the delivery tactics used by the doctors resulting in medical malpractice. It turns out her primary care physician went on a leave of absence because he was facing three felony charges. This was just a horrid situation for everyone involved and our hearts go out to this traumatized family. Hospitals in Nassau and Suffolk are watchful for these problems.

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November 29, 2011

Hospital allegedly gave Wrong Medicine to Child

A three year old child who died at a clinic in Kolsewadi, Kalyan is the subject of a medical malpractice suit. The parents of the child claim that the child died because he did not receive the necessary treatment. They have recently filed a report at the local police station.

The family was in the city at an engagement party. After some time the child starting vomiting violently. This was enough to concern the parents and take him straight to the emergency room of the nearest doctor. The doctor did treat the child. However, by morning the child had died. This was obviously a very upsetting time for the parents.

The parents have alleged that the reason for this boy’s death is because the hospital failed to correctly diagnose the cause of the symptoms. This meant that they prescribed the wrong medicine which did nothing and ultimately lead to his death. The parents are adamant that the child’s death was preventable, and is something that shouldn’t have been allowed to happen.

The hospital denies all the allegations. They state that they took the best care of the child which was possible. The doctor has been handed a statement which explains that someone was with the child at all times. The child was also given standard treatment while the results of various tests came back. The hospital did everything in its power for the little child, and is sympathetic with the Parents pain. The hospital says that they are not liable for the death because they had given the very best standard of care.

The local police department is currently investigating the claim. They are conducting a post mortem to find out the exact cause of death. They will also call on expert witnesses to try and discover whether or not the death was preventable and whether medical malpractice took place.

The police explain that if the expert witnesses suggest that there was negligence then a case will be filed in court for medical negligence. Police in Nassau and Suffolk would handle the case in the same way.

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November 14, 2011

Medical Malpractice Clients Are Entitled to Compensation

In a system where nearly 98,000 deaths and 1 million injuries each year occur, you would think that there would be some sort of reprimand. In 1999 a study discovered that these deaths and injuries take place in our local hospitals. This study shocked the general public, and has led to the truth about medical care coming out in the open.

In New York, a study was initiated from 2002-2007 that involved 10 state hospitals. Researchers discovered that around 18% of patients were harmed by medical malpractice, and that up to 63.1 percent could have been prevented. According to a New York Medical Malpractice Lawyer, almost 2.4 percent of those medical malpractice accidents were seen to be instrumental in the patient’s deaths.

Most hospital malpractice suits have been brought on the inability of the hospital to ensure that infections avoided. These infections come in various forms, from urinary catheters, lines inserted into veins and arteries to ventilators. Errors in medication are also a leading source of medical malpractice. Medication errors affected 162 of the 2,341 patients studied in a North Carolina project.

Officials in Manhattan and Nassau County are calling for mandatory federal-level reporting to ensure that the hospitals be held more accountable for their mistakes. The accountability program would allow patients to compare safety and other options before picking a caregiver, instead of being in the dark when going in for treatment, explains a NY City Medical Malpractice Lawyer. Only 17 percent of hospitals currently have a computerized system available, even though this simple step could minimize medication errors by 80 percent.

Patients injured in hospital medical malpractice are entitled to compensation for their injuries in most cases. Hospitals may be responsible for medical costs, future medical care, lost wages, and possibly limited pain and suffering.

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November 4, 2011

West Virginia Medical Malpractice Lawsuit Laws in Jeopardy

Laws that have been in place since 2003 in West Virginia are now coming under attack. In 1986 lawmakers approved a cap of $1 million in awards made by juries in medical malpractice cases. The $1 million limit was only on non-economic damages, which left juries the ability to award other malpractice funds when damages could be proved. According to a New York Medical Malpractice Lawyer, in 2003 lawmakers in the state went further and placed a $250,000 cap on non-economic damages, unless death, permanent disability or the loss of limbs were involved, and then the cap was $500,000.

In both 1991 and 2001, Justices of the West Virginia Supreme Court upheld the $1 million cap. Now, however, the lower cap is being appealed because of a lawsuit involving the City Hospital of Martinsburg and a physician at that hospital.

A Spokesperson stated that in the case, the jury has found negligence was involved while treating the plaintiff or misdiagnosis, however, the jury has award the plaintiff an amount exceeding the cap by over $1 million.

High Court Justices in places like Nassau and Suffolk Counties must now decide whether the jury’s award should be overturned, or whether it should stand. Higher awards (or an overturn of the cap all together) could cause medical malpractice insurance to rise. This rise could cause doctors to not be able to practice medicine in the state, something that took place before the original cap in 1986, reported a Medical Malpractice Lawyer from NYC. This review of medical malpractice caps comes on the brink of a national review as called for by President Obama.

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October 5, 2011

Couple Sees Embryos Destroyed Without Permission, says New York Medical Malpractice Lawyer

They had hoped that science could give them what nature had denied: children. The couple was in their mid thirties and late fifties respectively and after years of trying to conceive naturally they turned to their local hospital in a last ditch effort to find the love and joy that a child brings. Their doctor recommended in vitro fertilization, a procedure by which eggs are extracted from the mother to be, fertilized by the father to be's sperm, and then implanted in the mother, said a New York Medical Malpractice Lawyer. The desperate couple agreed and underwent the treatment.

In total, 16 of 18 eggs were successfully fertilized. A month after the procedure two of the eggs were implanted in the woman. It did not work and the children did not come to term. Two months after that they tried again and again fate's cruel hand denied them the gift of life. Their frustrations grew as the couple found themselves without child. They finally decided that they had had enough and were going to try a different doctor. The two contacted their first doctor and were told to arrive at the clinic to pick up the embryos. When they arrived, after being made to wait an hour, they were told that due to a "mix up" their embryos had been destroyed, noted a Lawyer. Hospitals all over, including Nassau and Suffolk Counties, should take note of this situation.

The woman says it felt as if her children had been killed and she has been crying for months. The only explanation the doctor's office can give is that there was some sort of "misunderstanding" said a New York City Medical Malpractice Lawyer. A misunderstanding that has compounded the cruel reality facing the couple. They have now filed suit, alleging medical malpractice of misdiagnosis.

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September 2, 2011

Malpractice Suit Blames Botched Colonoscopy

A woman in Virginia claims a 2009 colonoscopy caused her a number of medical problems. The 29-year-old woman is suing both the doctor and his employer for medical malpractice. New York Medical Malpractice Lawyers have learned she wants a jury trial and $5 million in damages.
The doctor, a gastroenterologist, performed the colonoscopy on June 23, 2009, investigating his patient’s complaints of persistent diarrhea, according to the complaint.
“[The doctor] knew before the colonoscopy that [the plaintiff] had great difficulty tolerating the ‘prep’ to clean out her colon and that she had severe left lower quadrant abdominal pain, abdominal cramping, nausea and vomiting,” NY Medical Malpractice Lawyers read in the complaint. “He prescribed Demoral for her pain and decided to proceed with the colonoscopy without first evaluating what was the cause of her severe pain.”
The suit went on to say that in attempting to bypass obstructions in the patient’s colon, he might have perforated her colon. Her condition worsened considerably after that.
The doctor had the patient admitted to the intensive care unit at Winchester Medical Center that afternoon.
Another colonoscopy, with the patient under sedation, was performed two days later. According to the suit, the colon was perforated there, as well.
“Shortly after the second procedure, the patient had more episodes of vomiting brown material, and she likely aspirated fecal content into her lungs,” the complaint stated.
The patient claims the doctor used “an ill-advised initial colonoscopy without investigating her pain.” According to the suit, a CT scan would have revealed the patient required surgery in the first place.
According to the patient, the doctor did not ask for her consent before any of the procedures, nor did he describe risks or alternatives. He also caused internal injuries that led to sepsis and failed to protect her from the lingering medical effects. Hospitals and doctors in Nassau and Suffolk Counties must be on guard for this type of negligence.

As a result, the suit claims the woman has a perforated colon, acute respiratory difficulties, sepsis syndrome, kidney failure, liver injury, a bleeding disorder, and even a failure in multiple organs that lead to bleeding in the brain. Part of her skull had to be removed to relieve the pressure.

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June 17, 2011

Doctors Death Lawsuit Could Cost Millions of Dollars

Medical malpractice happens every day; it's just that most people aren't too concerned with fighting it. Many pensioners try to find a NY Medical Malpractice Lawyer to handle their wife’s death. However, few lawyers would actually want to take this case on because the rewards are not high enough.

But, when someone with more earning potential dies like a doctor, then the wrongful death lawsuit is a real possibility. The doctor died on 23rd April 2010. He was a 35 year old, skilled neurosurgeon. He just got offered a job at a local practice which could see him earning over $2 million per year. This is a huge sum of money, which means his wrongful death is worth a lot of money to any good New York Medical Malpractice Lawyer.

The family of the doctor is currently suing the hospital and the doctors involved in the treatment. Many people believe that doctors look after their own kind, and you might expect that he would of received the very best medical care available. The doctor had been vomiting and had a fever and diarrhea. By 11 PM in the evening he died.

It's thought that the cause of death was sepsis. This is a serious infection which can kill by causing septic shock.

The lawsuit which has been filed alleges that the doctor did not receive the correct treatment for his illness. When the correct treatment was chosen there were several delays which made the condition worse.

The NY Medical Malpractice Lawyer called on two medical experts to assist the case. One was an expert in emergency medicine, and the other an expert in sepsis.

Although the doctor was seriously ill, the emergency doctors did not treat him as such. They did not provide him with the necessary treatment quickly enough.

The level of care was also called into question. The emergency doctors did not check in on the patient nearly as often as they needed to. The ER nurses also neglected to take good care of him. The experts believe that the patient would have been able to survive if he received the right treatment quickly enough.

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June 17, 2011

Apologies Prevent Medical Lawsuits, Reports New York Medical Malpractice

A new Michigan State bill may help lessen the amount of medical malpractice lawsuits. This new measure would allow a doctor to say “I’m sorry” without it being an admission of guilt when procedures go wrong. A NYC Medical Malpractice Lawyer says that doctors see it as a step in the right direction.

A doctor with the Michigan State Medical Society has said that anything you say when dealing with patients and their families can be held against you. If you admit that you’re sorry that something has went wrong, many people see that as an implication of guilt, or that you did something wrong during the procedure. Currently these heartfelt apologies can be seen as admissions of guilt to a wrongdoing on the doctor’s part. Anesthesia errors can occur at any hospital and often do in Nassau, Long Island where a lawyer familiar with the law should be called.

According to a New York Medical Malpractice Lawyer, a new proposed bill states that saying “I’m Sorry” when something goes wrong would no longer be an admission of guilt. 35 states already have what are called “I’m Sorry” laws in place, and reports have shown that the number of medical malpractice lawsuits have decreased in a lot of those states.

The hope is that fewer lawsuits may eventually lead to lower insurance premiums as well. But first the Michigan State Medical Society just wants to help protect the health care workers and their families. Although this law would apply to all health care professionals, it would not apply to people who apologize and admit they’re guilty as well.

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