Case Facts

The Westchester plaintiff both individually and as the administrator of the estate of the deceased, started this action against the defendants to recover damages for medical malpractice and wrongful death. The plaintiff alleges that the care given to his mother was negligent up until the time that she passed away.

The plaintiff alleges that the defendant hospital failed to diagnose the decedent with lung cancer, and this lack of diagnosis resulted in her death on the third of September, 2008.
The plaintiff started this action in December of 2009. At the time the plaintiff brought forth the action he had not been issued the letters of administration naming him as executor and granting him the right to bring suit on behalf of the estate. For this reason, he nominated himself as the proposed administrator as he was the next of kin and the only child of the decedent.

Case Discussion

The Suffolk defendants have moved to have the complaints against them dismissed on the ground that it is barred by the statute of limitations and/or that the complaint fails to state a cause of action. To support the motion the defendants argue that the plaintiff failed to serve a timely notice of claim. They further state that the alleged failure of diagnosing the decedent’s lung cancer occurred more than 90 days before the plaintiff’s notice of claim and for this reason the notice of claim is untimely.

The defendants further argue that the plaintiff lacks the capacity to commence with a wrongful death claim because he was not designated as the legal representative for the decedent’s estate at the time the action was started.

In opposition of this, the plaintiff states that he has now received the letters of administration for the estate and that none of the defendants were prejudiced by him starting the action before he was named as the estate’s administrator. The plaintiff further argues that he is the only heir of the decedent and therefore was the only person that could have started the claim.

Court Decision

Based on the information that has been provided to the court the complaint against the defendant hospital corporation is dismissed entirely. The wrongful death claim against one of the doctor defendants is dismissed as well. Additionally, the medical malpractice claim against this particular doctor is dismissed as time barred.

The wrongful death claim made against the other hospital defendant is dismissed in its entirety as well as any of the medical malpractice claims that occurred before the third of March, 2006. These complaints are deemed to be time barred.

There are several counterclaims made by the defendant in his proposed answer including a counter claim for fraud, legal malpractice, and breach of fiduciary duty. He also added two additional counter claims in his amended answer, breach of the plain language requirement and breach of judiciary law section 427.

Case Facts

The defendant contends that he has resided in the state of Florida since 2000 and his son lives with his mother in New York. From April of 2002 through February of 2006 a partner of the plaintiff performed legal services for the defendant pursuant to a representation agreement in connection with matters that related to the defendants son and mother.

When the representation period ended the Queens defendant refused to pay the balance of the plaintiff’s legal fees. The defendant submitted a fee dispute to the fee dispute resolution program. A hearing was held and it was determined that the plaintiff was entitled to a portion of the claimed legal fees. As the defendant had already made payments to the plaintiff the plaintiff was ordered to pay the defendant $4,943.09 as an arbitration award.

The plaintiff was unsatisfied with the arbitration award and started this instant action for a trial de novo. The defendant moved to dismiss the complaint on the grounds of arbitration and award, collateral estoppel and res judicata pursuant to CPLR section 3211. The defendant’s motion was denied in its entirety and the plaintiff was found to be within his rights to pursue a trail de novo.

The defendant has now moved to amend his answers again and also to renew his previous motion to have the complaints against him dismissed.

Court Decision

The court has reviewed all of the documents as presented in the case and will grant the defendant’s motion to leave to serve the plaintiff with the second amended answer in regard to his first, second and third counterclaims. The fourth and fifth counterclaims are denied.
The plaintiff’s motion to dismiss the defendant’s counterclaims in the amended complaint in regard to the second and third counterclaims that are made within the amended answer is granted.

The defendant is ordered to serve a copy of this order with a notice of entry to all of the parties involve within twenty days of the orders being entered.

In this medical malpractice action, plaintiff alleges that defendants deviated from accepted standards of medical care while he was being treated in the hospital for severe injuries he sustained in an automobile accident. The Manhattan plaintiff alleges, among other things, that defends its improperly and negligently positioned and restrained his wrists, failed to monitor the effects of the restraints, negligently failed to perform physical therapy on him, and negligently caused his arms to become paralyzed and non-functional.

On December 29, 2004, plaintiff, then age 62, was driving his vehicle when it struck trees, a fence and landed in a courtyard, ejecting him from the driver's side window. Plaintiff sustained various injuries, including a hemorrhage of the head, a crushed left leg from his foot to hip, and multiple lacerations and abrasions. EMS brought plaintiff to Kings County Hospital emergency room, where plaintiff was described as alert, combative, and intoxicated. Plaintiff was intubated and x-rays and abdominal/pelvic ct-scans were performed. Plaintiff sustained fractures of the pelvis, left femur, and left tibia/fibula, and had internal bleeding.

According to Dr. PN, plaintiff required significant treatment to save his life. He was unstable in the emergency room and Dr. PN did not know if he was going to survive. A CAT scan was taken to look at plaintiff's head injury and to identify his severe pelvic fracture, but he become progressively more unstable and hemorrhaging. He underwent multiple massive transfusions, and was then transferred to the intensive care unit, where he was still unstable. Dr. PN testified that over the next 24 to 48 hours, she and other medical personnel were able to stabilize plaintiff, but he remained in extremely critical condition.

Dr. PN made the first order for wrist restraints on December 30, 2004, at 5:30 A.M. Orders for wrist restraints were written daily, from December 30, 2004 until February 6, 2005, while plaintiff was still in the intensive care unit. With respect to the need to restrain plaintiff in the critical care unit, Dr. PN testified that it was to protect himself as plaintiff was very dependent on a ventilator, required an endotracheal tube for his ventilator and multiple IV lines for his support, that he repeatedly reached and tried to pull out his lines.

Defendants also state that the flow sheets document that the nursing staff at the hospital checked wrist restraints for skin integrity, circulation and range of motion on regular intervals while plaintiff was restrained.

On February 11, 2005, physical therapy in Staten Island documented 15 to 20 degree extension/flexion in the left elbow and 15 to 30 degree flexion/extension in the right elbow. On February 14, 2005, plaintiff was evaluated for physical therapy. Bedside therapy was recommended three to four times per week to prevent further contractures and muscle weakness bilaterally in the upper and lower extremities and began at that time.

On April 5, 2005, one week prior to discharge, therapy documented a 15 degree lag in extension/20 degrees flexion of the left elbow and a 10 degree lag in extension/forty degree flexion in the right elbow. Despite two months of intensive therapy, after the wrist restraints were removed, plaintiff's upper extremity contractures persisted.

On July 12, 2005, bilateral elbow x-rays performed at the Kings County Hospital outpatient clinic revealed a diagnosis of heterotopic ossification.

On August 19, 2005, surgery for the right elbow contracture release and excision of heterotopic calcification was performed at Kings County Hospital. On October 28, 2005, surgery for left elbow contracture release and excision of heterotopic calcification was performed.

Plaintiff commenced the instant action for medical malpractice and lack of informed consent in July, 2006.

In support of their motion, defendants argue that they are entitled to summary judgment dismissing the complaint based upon the affidavits of their expert physicians, which demonstrate that there was no departure from accepted standards of practice and that defendants did not cause plaintiff's injuries.

A doctor (Dr. A) witness for the defendant testified that wrist restraints are routinely used for intensive unit patients who are often at increased risk of injuring themselves by pulling out therapies such as IV lines, endotracheal tubes, central lines and chest tubes. He also stated that wrist restraints allow for some range of motion and enable a degree of flexion and extension of the wrists and elbows and pronation and supination of the arms, as evidenced by the fact that on January 30, 2005 plaintiff was seen holding the dislodged chest tube tubing with his restrained left hand. The doctor said that there was no evidence that plaintiff's wrist restraints ever caused circulatory impairment, were improperly positioned, or that plaintiff developed any pressure sores in the wrist area; and that the wrists restraints were a necessary and vital part of plaintiff's management.

Like Dr. A, Dr. B testified that there is sufficient documentation that the nursing staff continuously monitored the wrist restraints according to hospital protocol; that there was no evidence that plaintiff's wrist restraints ever caused circulatory impairment, were improperly positioned, or that plaintiff developed any pressure sores in the wrist area; and that the wrists restraints were a necessary and vital part of plaintiff's management.

Dr. B further stated that despite intense physical therapy received after the removal of wrist restraints, the elbow contractures persisted.

Dr. B explained as well that heterotopic ossification is a medical condition which involves the gradual formation of bone in the soft tissue around major joints; that the normal soft tissue of the joint turns into bone; that it is a rare condition which is most frequently seen with musculoskeletal trauma, spinal cord injury, or central nervous system injury; that there is no medical evidence which suggests that heterotopic ossification has any relation to immobilization or restraint; and that physical therapy is not usually an effective treatment of heterotopic ossification and was not effective on plaintiff.

Further, Dr. B noted that plaintiff was diagnosed with a C1-C2 subluxation at the time of admission but no surgery could be performed because of plaintiff's general medical condition, and that stabilization surgery was performed on March 28, 2005. He stated that the relationship between spinal injury and heterotopic ossification is well established, and that as a result of plaintiff's spinal cord injury, he was diagnosed with spastic quadraparesis in the hospital ambulatory care clinic on June 16, 2006.

As such, Dr. B opined, with a reasonable degree of medical certainty, that plaintiff developed heterotopic ossification (HO) as a result of musculoskeletal trauma and spinal cord injury sustained during the automobile accident; that heterotopic ossification was not and could not be caused by wrists restraints.

On the other hand, the expert presented by plaintiff opined that it is widely accepted that gentle and active passive range of motion substantially limits the risk of HO and that the failure to position and move plaintiff's arms for several hours during the day was a substantial factor in the development of his HO, to the degree and nature that it could cause such severe upper extremity dysfunction.

The expert also stated that even with HO, plaintiff's severe bilateral elbow contractures were avoidable had his arms not been improperly restrained. He asserts that contractures occur when tendons/muscles harden and become `fixed' or less elastic as a result of disuse; that in plaintiff's case, the contractures were a separate and distinct injury from HO; and that the failure to reposition plaintiff's arms for several hours a day on the days he was restrained was a substantial factor in causing his contractures and loss of range of motion in both arms.
According to the Court, the requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted standards of medical practice, and (2) evidence that such a departure was a proximate cause of the plaintiffs injury. On a motion for summary judgment in a medical malpractice action, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice, or that the plaintiff was not injured thereby. Defendant must make this showing through medical records and competent expert affidavits. Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to rise a triable issue of fact.

In this case, the Court held that defendants have made a prima facie showing entitling them to summary judgment with respect to their claim that the wrist restraints used on plaintiff did not cause plaintiff to contract heterotopic ossification. In this regard, both of defendants' experts testified, and the record reveals, that the use of the wrist restraints on plaintiff was necessary because he was frequently described as restless and was considered at risk for self-injury. In addition, noting that heterotopic ossification is a rare condition which is most frequently seen with musculoskeletal trauma, spinal cord injury or central nervous system injury; that plaintiff had sustained spinal cord injury as a result of his accident; and that the relationship between spinal cord injury and heterotopic ossification was well established, Dr. B opined that plaintiff developed heterotopic ossification as a result of musculosekletal trauma and spinal cord injury sustained during the automobile accident, and that it was not and could not be caused by wrist restraints.

Defendants, however, have failed to make a prima facie showing that the wrist restraints did not cause plaintiff's elbow contractures. In this regard, Dr. B opined that plaintiff's elbow contractures were not caused by stiffness/tightness associated with atrophy from lack of use, asserting that there was no evidence that the restraints caused circularory impairment, were improperly positioned, or that plaintiff developed pressure sores in the upper extremities.
Thus, defendants' own papers raise an issue of fact as to whether the proper protocols with respect to wrist restraints were consistently followed, and if not, whether the failure to do so was a proximate cause of plaintiff's contractures.

In any event, plaintiff has raised a question of fact as to whether his heterotopic ossification and contractures resulted from defendants' negligent use of wrist restraints on him, which precludes the court from granting defendants' motion for summary judgment. With respect to plaintiff's heterotopic ossification, plaintiff's expert asserted that during some of the days plaintiff was restrained, he was not properly monitored according to hospital protocol. Plaintiff's expert also opined that they were avoidable had plaintiff's arms not been improperly restrained.

As such, defendants' argument that plaintiff did not rebut their showing that there was sufficient documentation that plaintiff was continuously monitored, and that there is no evidence which suggests that heterotopic ossification has any relation to immobilization or restraint, is without merit.
Further, while defendants argue that plaintiff's expert did not rebut their expert's contention that heterotopic ossification is a rare condition and most frequently seen with, among other things, spinal cord injury, plaintiff's expert raised an issue of fact as to whether the failure to properly monitor the wrist restraints caused plaintiff's elbow contractures and heterotopic ossification. In addition, contrary to defendants' claims, plaintiff's expert specified how the restraint protocol was not followed.
That branch of defendants' motion for summary judgment as to plaintiff's cause of action for lack of informed consent was granted by the Court. Defendants have made a prima facie showing, through their expert affirmations, that a reasonably prudent person would have undergone all of the procedures plaintiff underwent if informed of the risks and benefits of the procedures. Plaintiff has failed to address this cause of action in his opposition.
Finally, in light of the factual issues raised, the court declined to search the record and grant plaintiff partial summary judgment.

In sum, that branch of defendants' motion for summary judgment as to plaintiff's cause of action for lack of informed consent is granted, and the remainder of defendants' motion is denied.

A assistant said that, the parties to the medical malpractice action reached a settlement. Based upon the proposed settlement, the DSS agreed to accept the sum of $102,423.56 to settle the Medicaid lien. The amount necessary to settle the Medicaid lien was premised on a letter from the DSS stating that it would accept that amount on the Medicaid lien against the proceeds of the personal injury lawsuit, based on the proposed settlement of the lawsuit for the sum of $1,600,000. The letter further provided that the DSS reserved the right to collect any unpaid balance of the Medicaid lien if Ruben reached a further settlement that provided additional proceeds or if he should receive funds from another source such as the lottery; neither of those circumstances eventuated.

A reporter said that, the settlement of the medical malpractice action was approved by the Supreme Court, Kings County, in an amended order dated August 23, 2002, with the direction that payment be made to the DSS in the amount of $102,423.56, in full satisfaction of the Medicaid lien to the date of the order. Pursuant to regulation, the Medicaid lien was required to be satisfied or otherwise resolved in order for the remaining funds received by Respondent. To be disregarded, for purposes of eligibility to continue receiving Medicaid benefits, by placement in a supplemental needs trust. As will be discussed herein, the Medicaid lien was limited to the medical assistance respondent received as a result of the third-party tortfeasor's negligence. The lien was not and could not have been asserted in connection with any medical assistance provided to respondent as a result of his Down syndrome condition; whether such assistance was provided prior to or subsequent to the medical malpractice. The settlement of the medical malpractice action and settlement of the lien did not in any way address the other assistance that had been correctly paid to respondent.

The issue on this case dwells on the scope of entitlement of the Department of Social Services of the City of New York (hereinafter the DSS) to recovery, from the trust corpus of a supplemental needs trust, for the medical assistance provided by Medicaid to respondent the beneficiary of the supplemental needs trust, over the course of his lifetime.

The Court said that the DSS claims that it was entitled, pursuant to the statutorily-required language of the supplemental needs trust, to recovery of the total medical assistance provided to respondent over the course of his lifetime and not just the medical assistance provided to him after the creation of the supplemental needs trust.

New York adopted Estates, Powers and Trusts Law § 7-1.12 to allow for the creation of what have come to be called supplemental needs trusts. Those trusts were primarily intended to foster effective future care planning for disabled individuals whose basic needs were primarily met through government benefits or assistance programs.

The supplemental needs trust created for respondent contained a provision, as required by federal and state law, that upon his death, the State would receive all amounts remaining in the trust up to the total value of "all medical assistance" provided to him. On September 22, 2003, The Queens respondent died. In her amended final accounting, the trustee took the position that the State was only entitled to reimbursement of the amount of medical assistance provided to respondent after the creation of the trust, January 15, 2003, until his death, the sum of $50,226.63. The DSS asserted that it was entitled to recover the sum of $632,714.22 pursuant to the terms of the trust, representing the total of all medical assistance provided to respondent over the course of his lifetime. The DSS sought to recover the medical assistance provided to him, as a result of his Down syndrome for the five years prior to the medical malpractice that further incapacitated him; to recover that portion of the medical assistance provided to him during the five years preceding the settlement of the medical malpractice action that was not previously recovered with the resolution of the Medicaid lien addressed to the medical assistance for which the tortfeasor was liable; and to recover the total medical assistance provided after the August 23, 2002 settlement of the medical malpractice action, not just the portion provided after the creation of the supplemental needs trust. The Supreme Court held that the DSS was entitled to recover only the sum of $50,226.63, for the period after the creation of the supplemental needs trust.

The DSS's claim to recovery of the total medical assistance provided to respondent over the course of his lifetime is based on the language which is required to be included in all exception trusts. The state and federal provisions both require that a qualifying trust contain a provision that the State will receive, upon the death of the beneficiary, all amounts remaining in the trust up to the total value of "all medical assistance" paid on behalf of the beneficiary. The DSS's argument would be persuasive if that language were read alone and apart from the rest of the medical assistance statutes. However, the referenced language is just part of provisions relating to the treatment of trust assets on consideration of eligibility for benefits. Those provisions are part of extensive provisions governing the medical assistance program, which include specific provisions restricting the scope of recovery of medical assistance correctly paid. An application of the trust language in the manner proposed by the DSS would be in direct contravention of the recovery restrictions.

The Court said that as a condition of the receipt of Federal program funding, State Medicaid plans must conform with the statutory standards established by Federal law and the regulations promulgated by the Secretary of Health and Human Services. The requirements that a state plan must include are set forth in 42 USC § 1396a. Paragraph (a) (18) of that section provides that the state plan must: "comply with the provisions of section 1396p of this title with respect to liens, adjustments and recoveries of medical assistance correctly paid, transfers of assets, and treatment of certain trusts.

Paragraph (b) of 42 USC § 1396p addresses the adjustment or recovery of medical assistance correctly paid. That paragraph begins with the statement: "No adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan may be made". The section then continues with limited exceptions to the no-recovery rule: specific instances where the state is required to make an adjustment or recovery for medical assistance correctly paid to certain individuals.

The exceptions include: (1) assistance provided to an individual who is an inpatient at a nursing facility, intermediate care facility for the mentally retarded or other medical institution, if the individual is required to pay all but a minimum of his income for such care; (2) an individual who the state determines, after notice and an opportunity to be heard, cannot reasonably be expected to be discharged from the medical institution and return home; (3) an individual who was 55 years of age or older who received specified services, or at the option of the state any services; and (4) an individual who received benefits or was entitled to receive benefits from a long term care policy and received medical assistance payments for nursing facility and other long term care services. Respondent’s receipt of medical assistance does not fall within any of these four specified categories of exceptions to the no-recovery of medical assistance correctly paid mandate.

The New York State provisions governing the recovery of medical assistance correctly paid, as required by 42 USC § 1396a (a) (18), are contained in Social Services Law § 369 (2) (b) (i): "Notwithstanding any inconsistent provision of this chapter or other law, no adjustment or recovery may be made against the property of any individual on account of any medical assistance correctly paid to or on behalf of an individual under this title". That subparagraph then continues with specified exceptions where recovery or adjustment of medical assistance correctly paid is required. Those specific exceptions essentially parallel the federal exceptions. Again, respondent’s receipt of medical assistance does not fall within any of the New York statutory exceptions.

In addition to the referenced exceptions, special provision is made for assistance provided to an individual to the extent the assistance is provided as a result of an injury incurred as the result of a third party's negligence. The federal provisions set forth the requirements of a state plan, relating to the liability of third parties to pay for care and services. The State will take all reasonable measures to ascertain the legal liability of third parties to pay for care and services available under the plan (B) that in any case where such a legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement the State can reasonably expect to recover exceeds the costs of such recovery, the State or local agency will seek reimbursement for such assistance to the extent of such legal liability.

New York's compliance with that requirement is contained in Social Services Law § 104-b and is an exception to the no-recovery provision of Social Services Law § 369. "Nothing contained in this subdivision shall be construed to alter or affect the right of a social services official to recover the cost of medical assistance provided to an injured person in accordance with the provisions of section one hundred four-b of this chapter". The New York regulations governing medical assistance liens and recoveries are set forth in 18 NYCRR 360-7.11. The regulations repeat the standard that no adjustment or recovery for medical assistance correctly paid may be made except in accordance with specific exceptions. The exceptions specified in the regulations correspond to those in the statute.

As there is no specific authorization for recovery of medical assistance correctly paid to respondent prior to August 23, 2002 apart from the Medicaid lien, to allow such recovery would be in direct contravention of the federal and state statutes. The DSS does not address the no-recovery provisions of the federal and state statutes, apart from an assertion in its brief that the Omnibus Budget Reconciliation Act of 1993 (gave the government a broader right of recovery from a supplemental needs trust remainder than from estates, referencing 42 USC § 1396p (b) (1). The only basis for the claim of the DSS to such recovery is the language required to be placed in a supplemental needs trust.

Accordingly, the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the DSS which was for reimbursement of the amount of medical assistance provided by Medicaid to respondent from August 24, 2002 through September 22, 2003, and substituting therefore a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of medical assistance provided by Medicaid to respondent from August 24, 2002 through September 22, 2003 that was not previously reimbursed, and for entry of an appropriate judgment.

A Queens Lawyer said that, in 2002 the plaintiff, by her mother, commenced the instant action against the defendant Health & Hospitals Corporation, alleging negligent failure to diagnose and treat meningitis, causing the plaintiff's permanent hearing loss. In 2005, after defendant doctor was deposed as a nonparty witness, the plaintiff filed an amended complaint adding him as a defendant and alleging that he negligently failed to test for meningitis during the plaintiff's office visit on November 11, 1999. A Lawyer said that, the Supreme Court denied defendant doctor’s motion for summary judgment dismissing the complaint insofar as asserted against him, holding that conflicting expert medical opinion evidence raised a triable issue of fact.

The issue in this case is whether defendant doctor should be held liable for medical malpractice together with defendant Health & Hospitals Corporation.

The NYC Court in deciding the case said that, on a motion for summary judgment in a medical malpractice action, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice, or that the plaintiff was not injured thereby. Here, defendant doctor established his prima facie entitlement to judgment as a matter of law by submitting the affidavit of a medical expert who opined, to a reasonable degree of medical certainty, that defendant doctor’s examination and treatment of the plaintiff on November 11, 1999 did not depart from accepted standards of medical practice and that the plaintiff's hearing loss was not causally related to treatments rendered by defendant doctor.

Once the defendant doctor made this prima facie showing, the burden shifted to the plaintiff to raise a triable issue of fact. A physician's affidavit in opposition to a motion for summary judgment must attest to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury. General and conclusory allegations unsupported by competent evidence are insufficient to defeat a motion for summary judgment.

Here, the court said that the plaintiff's expert opined that, had defendant doctor conducted proper examination in his office on November 11, 1999 he would have detected more definitive symptoms of meningitis which would have required immediate transfer of the plaintiff to the hospital for a spinal tap, which would have resulted in a firm diagnosis of meningitis and timely antibiotic therapy to salvage the plaintiff's hearing. The expert's opinion was based upon a string of assumptions not supported by facts in the record and thus did not raise a triable issue of fact as to whether defendant doctor’s examination and treatment of the plaintiff was a competent producing cause of her injuries.

Accordingly, the Court held that the order is reversed, on the law, with costs, and the motion of the defendant doctor for summary judgment dismissing the complaint insofar as asserted against him is granted.

Case Background

The plaintiff is a home builder and in 1999 he started negotiations for the purchase of a home that he was building. For the negotiations he retained the defendants to represent him. In January of 2000, the plaintiff was ready to sign a contract of sale as well as a separate basement construction agreement. This contract had been forwarded to the defendant’s offices. The plaintiff executed the basement construction agreement, but then discovered that the buyers had not signed the attached contract of sale. This contract included additional terms that were not previously agreed to in the parties’ negotiations. As a consequence the plaintiff did not sign the contract of sale and told the defendant’s that the deal with the buyers was off and to proceed accordingly.

The defendants received a copy of the contract of sale from the buyers, but at this point the plaintiff was no longer interested in proceeding. In March of 2000, the defendants sent a package of documents that included the signed basement construction agreement and the contract of sale signed by the buyers, but not signed by the plaintiff.

The buyers then started an action against the plaintiff and defendants for performance of the contract of sale. The plaintiff retained a new law firm to represent him in that underlying action. The other law firm successfully moved to dismiss the complaint in the underlying action. However, this motion was reversed on appeal and specific performance was awarded to the buyers.

While the underlying action was still pending the plaintiff started this legal malpractice suit against the defendants. The legal malpractice case was dismissed as premature, but the plaintiff was given leave to start a second action should the buyers be awarded damages in the underlying action. The plaintiff is now seeking to recover damages from the defendants.

Court Decision

The court is granting the application to leave for appeal for the portion of the order that directed the dismissal of the complaint against the defendants. The original order from the Supreme Court of Westchester County is modified by deleting the portion of the order that denied the motion by the plaintiff for summary judgment on the issue of liability against the defendants and substituting a provision that grants that branch of the motion. A bill of costs is awarded to the plaintiff and will be paid by the defendants.

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.

First, the court must consider whether an order that denies a motion to vacate a medical malpractice panel’s finding is appealable in this court.

Second, if the doctor member of the medical malpractice panel must be a specialist that practices in the same field of medicine as the defendant doctor who the malpractice is claimed.

Third, if the medical malpractice panel’s finding in this case is legally insufficient to a finding of liability.

Fourth, whether the medical malpractice panel’s finding should be vacated because the medical panelist failed to disclose that he and one of the codefendant doctors both attended the University of Geneva in Switzerland and are members of the same county wide medical society.

Finally, if the court’s amendments of the rules that regulate medical malpractice panels are retroactive in application and applicable in this case and if they are retroactively applicable if these factors mandate the vacatur of the panel’s finding of liability as to the appellant.

Case Facts

The original medical malpractice action was against the appellant who is a pediatrician and three other doctors who are all obstetricians and the hospital. The plaintiff was seeking damages in the amount of over $5,000,000 for the defendant’s alleged negligence that caused the infant plaintiff to suffer from severe and irreparable damage to his brain and central nervous system. These damages have crippled the infant plaintiff for the rest of his life.

The Clerk of the Supreme Court of Suffolk County issued a letter to the respective counsel to submit pleadings, bills of particulars, and medical and hospital reports. This would then be turned over to the Suffolk County Medical Society for review.

The doctor members of the medical malpractice panel and the attorneys were then identified and told that any objections should be made to the court within five days. There were no objections made and a hearing was held in front of the medical malpractice panel. One of the members of the panel was an obstetrician who the Suffolk County Medical Society had found.
The panel found the appellant liable in the case stating that he had departed from the accepted practices and procedures on his part in the care and treatment that was provided to the infant including his examination of the infant plaintiff and the discharge of the infant from the hospital.

There were no findings made against the defendant obstetricians.

The counsel for the appellant requested that the finding of liability be vacated because the Dr. on the board was an obstetrician and therefor an inappropriate party to review the actions of the appellant and that the doctor had failed to disclose his relationship with one of the defendant obstetricians.

Court Discussion and Decision

In regard to the appellant’s argument that the order should be vacated on account that the doctor representative on the board is an obstetrician and not a pediatrician, the court finds that this fact does not deprive him of a peer review. The issue of disclosure of the doctor’s relationship with another defendant is also not enough evidence to support vacatur. The other issues brought up in this case are found to be insufficient to support the finding of the panel to be vacated and for this reason the appeal is denied.

Case Background

In March of 2006, the law firm defendants filed a motion to have the complaint against them dismissed. In October of 2006 the court issued an interim order that directed all of the parties to provide a briefing on the issue of the bankrupt extension. The court reviewed the briefs and heard oral arguments. The court then made the decision to deny the dismissal of the complaint.

In February of 2007, the plaintiffs amended their complaint to add an associate of the legal defendants. The defendants filed a motion to have this complaint dismissed arguing that the complaint is time barred, that the plaintiffs do not have standing to invoke the bankruptcy extension, and that the plaintiffs failed to sufficiently plead fraudulent concealment.

Court Discussion and Decision

The main legal issue in this particular case is whether the Brooklyn defendants have demonstrated as a matter of law that even if they had raised a two year extension in the medical malpractice suit the suit would still have been time barred.

In this particular case, the court finds that the defendants have failed to meet the burden of showing that their failure to assert the bankruptcy tolling of the statute of limitations in the medical malpractice suit could not have deprived the plaintiffs of a judgment in their favor.
For this reason, the court is denying the motion to dismiss the amended complaint. The ruling is in favor of the plaintiffs.

Prior to this action the Bronx driver of the other vehicle that was involved in the accident began this own action for personal injuries that he sustained during the accident.

The plaintiffs have moved to consolidate both actions for a joint trial. The defendants in the second action have opposed stating that consolidating the actions will result in undue prejudice and jury confusion. In addition, the defendants in the second action have moved to sever the causes of action that pertain to the car accident and those actions that pertain to the medical malpractice action. The defendant is also seeking to have the venue moved to Albany County where the treatment was provided.

Case Background

The Brooklyn plaintiff’s decedent was in a car accident that resulted in serious injuries to himself, his wife, and their four children. According to the plaintiffs they were driving on Route 23 in Green County when their car was hit by the defendant driver. After the accident the decedent was taken to Columbia Memorial Hospital and was then transported to the defendant hospital.
On the day after the accident the decedent underwent surgery for his injuries on his right foot, knee, and leg. He suffered from complications after the surgery, allegedly related to the respiratory treatment and anesthesia and passed away.

The driver of the other vehicle sustained injuries as well and contends the accident was the fault of the decedent. He started an action on the 8th of February, 2010 for the injuries that he allegedly sustained during the accident. The family of the decedent started the instant personal injury and medical malpractice action against the driver of the other vehicle and various medical providers in August of 2010.

The issues before the court are whether this action involving the personal injuries suffered by the family of the decedent and the medical malpractice of the medical personnel defendants should be consolidated with the action that was commenced by the driver of the other vehicle for the injuries that he sustained during the accident, whether the alleged medical malpractice case should be severed from the causes of action that pertain to the car accident, and if the venue of New York County is appropriate.

Case Discussion and Decision

The plaintiffs contend that the two actions regarding the accident should be combined because they both stem from the same car accident and therefor contain common issues of law. The driver of the second vehicle argues that because of the medical malpractice claims these should not be combined because the issues in the decedent’s family case are more complex.

After reviewing the facts of the case, the motion to combine the cases is granted. Holding separate trials in this matter would result in conflicting results. In addition, the medical malpractice claims will not be severed and will be heard by the same jury. The court also finds that the venue of New York County is appropriate as it is the county where the defendant driver resides. The venue will remain the same.

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 doctor used 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.