Articles Posted in Long Island

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Respondent was born with Down syndrome in 1964 and began receiving medical assistance under the State Medicaid plan on July 1, 1992. On July 14, 1997, he suffered an injury during corrective spinal injury surgery, which resulted in his partial paralysis such that he was no longer able to ambulate. A Lawyer said that, a medical malpractice action was commenced by respondent’s sister on his behalf against the hospital where the surgery was performed and several Long Island doctors. Respondent continued to receive medical assistance from the DSS, and the DSS filed a lien pursuant to Social Services Law § 104-b (hereinafter the Medicaid lien) for recovery from any award made in the medical malpractice action, for such assistance for which the third-party tortfeasor was found to be liable.

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.
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The Long Island plaintiff in this case started this action as the administratrix of the estate of her deceased mother. She is seeking to recover money damages for the personal injuries her mother sustained while under the custody of the defendant hospital. The plaintiff has now moved for leave to submit a belated notice of medical malpractice. The defendant is cross moving for the action to be dismissed on the ground that it is time barred by the statute of limitations for medical malpractice.

Case Facts
The mother of the plaintiff was admitted to the defendant Queens hospital with end stage liver disease and end stage renal disease on dialysis. On the 27th of August, 2001, the decedent fell on the floor of the transplant unit. She fell again on the third of September, 2001 and sustained a blunt impact to her head. Two days later a CT scan was performed. The patient fell again on the 22nd of September and allegedly as a result of all of these falls she sustained severe head injuries. Ultimately, the mother lost consciousness and had to be placed on a ventilator. She then died on the 23rd of September, 2001.

Based on these facts the plaintiff started this personal injury action on behalf of her deceased mother by filing a summons and complaint on the 23rd of March, 2004. The plaintiff alleges numerous acts or omissions by the hospital and its staff and labels them as negligent. The case before this court is a motion by the plaintiff for leave to submit a late notice of medical malpractice. The defendant is cross motioning for dismissal of the complaint on the ground that it is time barred by statute of limitations.

Case Discussion and Decision
The court will first need to examine the cross motion made by the defendant’s that seeks summary judgment to dismiss the action as being time barred. The main issue in regard to this cross motion is whether the plaintiff’s claims are grounded in medical malpractice or ordinary negligence. Medical malpractice claims have a statute of limitations of 2 and one half years. A negligence claim has a statute of limitations of three years. The action in this case was commenced after the two and a half year time frame, but before three years.

The court must consider the differences between medical malpractice and negligence. The line between the two claims is very thin. The main test to determine whether or not it is considered medical malpractice or negligence comes down to the acts that are performed and whether or not medical treatment was provided.

In this particular case the court finds that the plaintiff has raised several issues of ordinary negligence and for this reason the argument by the defendant hospital that the whole action is time barred is rejected by the court.
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The petitioner in this case is seeking a judgment to require the Superintendent of Insurance to hold a hearing in regard to a decision that he made that reduced the petitioner’s proposed rate increase by approximately 85%. The Superintendent has cross moved to have this petition dismissed.

Case Background
The Long Island petitioner is a non-profit entity that is comprised of insurance companies that write personal liability insurance policies in the state of New York. Membership with the petitioner is required of companies that have the authority to write this type of insurance policy in the state. The petitioner is required to provide medical malpractice insurance to any physician or surgeon that is licensed in the state of New York. The amount of the policy is up to an aggregate limit of $3,000,000.

The petitioner develops and files rates that have to meet certain criteria. The reason for this is to assure the financial soundness of the association without having to charge excessive premiums for the malpractice coverage. The superintendent has the right to disapprove the rate filings, but must state his reasons for doing so.

Case Discussion and Decision
The petitioner filed for a 210% increase in April and again in October. The Superintendent studied the rate filing and that of another malpractice carrier. The independent firm that was used by the Superintendent recommended a rate increase of 107%.

The petitioner is asking for a hearing in order to gather information about the decision that was made by the Superintendent to deny the rate increase. This is not an adversary proceeding.

The court feels that it is within the rights of the petitioner to request this hearing and therefor is settling the case accordingly. A hearing will be held within two months of the date this judgment is entered.
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Petitioner minor child, represented by his parents is permanently and substantially brain damaged as a result of alleged medical malpracticeon the part of respondent physician and respondent medical center, as well as other medical providers. The petitioner parents filed suit in circuit court against their obstetrician, respondent, his professional association, respondent Hospital, and numerous other defendants. A Florida Medical Malpractice Lawyer said that, the trial court abated the circuit court proceedings for a determination by the Division of Administrative Hearings as to whether the infant’s injuries qualified for coverage under the NICA Plan. In the petition for determination of NICA coverage, petitioners alleged that long after the post-delivery period had ended, the minor child’s medical providers committed numerous errors, including administering too much IV fluid and failing to test for serum electrolyte derangements until numerous days after the delivery. As required by statute, NICA was served with the petition in the administrative proceedings. NICA intervened and took the position that he did not suffer a “birth-related neurological injury” within the scope of section 766.302(2).

A Lawyer said that, in a narrow category of cases in which a “birth-related neurological injury” occurs, parents’ common law rights to sue on behalf of their children for medical malpractice are eliminated and replaced by an administrative remedy that provides limited compensation on a no-fault basis. “Birth-related neurological injury” is defined by statute as “injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired.” § 766.302(2), Fla. Stat. (2001).

A Lawyer said that, the First District held that the petitioners were limited to the administrative remedy provided by the NICA Plan, reversing the decision of the administrative law judge (ALJ), who found that the minor child did not suffer a “birth-related neurological injury” as defined by the NICA Plan.

The issue in this case is whether, under the factual circumstances of this case, the minor child suffered a “birth-related neurological injury,” which would require the petitioners to obtain limited compensation through the Florida Birth-Related Neurological Injury Compensation Plan (NICA Plan) instead of full damages in a court of law.

In deciding the case the Court said that, in 1988, the Florida Legislature created the NICA Plan as a means to alleviate the high costs of medical malpractice insurance for physicians practicing obstetrics. The Legislature found that obstetricians were among the most severely affected by the increasing medical malpractice insurance premiums and that the costs of birth-related neurological injury claims were particularly high.. Consequently, the Legislature created the NICA fund to “provide compensation, on a no-fault basis, for a limited class” of birth-related neurological injuries. Because the NICA Plan provides limited remedies as a statutory substitute for common law rights and liabilities, this Court has held that the NICA statute “should be strictly construed to include only those subjects clearly embraced within its terms.” The NICA Plan does not cover all incidents of brain damage sustained by an infant delivered by an obstetrician. No party in this case contends that the statute provides immunity from suit to physicians practicing obstetrics for alleged malpractice occurring during labor and delivery; rather, the immunity is narrowly circumscribed by the term “birth-related neurological injury.” Specifically, the Legislature has limited coverage under the NICA Plan to a “birth-related neurological injury,” which it defined as injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.
Thus, based on the language of the statute, a birth-related neurological injury has four components: (1) an injury to the brain or spinal cord; (2) which is caused by oxygen deprivation or mechanical injury; (3) during labor, delivery, or resuscitation in the immediate post-delivery period; and (4) which renders the infant permanently and substantially impaired.
The ALJ has exclusive jurisdiction to determine whether a claim is compensable under the NICA Plan. (“The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding.”). In making this determination, the ALJ is required to make the following determinations: (1) whether the injury claimed is a birth-related neurological injury; (2) whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital; and (3) the amount of compensation that is awardable. In determining whether the injury is a birth-related neurological injury, section 766.309(1)(a) provides for a rebuttable presumption as follows:

If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2)§ 766.309(1)(a), Fla. Stat. (2001). Through this presumption, the claimant does not need to demonstrate that the injury occurred during labor, delivery, or resuscitation in the immediate post-delivery period. Under the NICA statute, NICA is the administrator of the NICA Plan and has statutory responsibilities, including the responsibility to administer the funds collected on behalf of the Plan, administer the payment of claims on behalf of the Plan, exercise all powers necessary to effect any of the purposes for which the Plan was created, and take legal action as necessary to avoid the payment of improper claims, among other duties.

Because the issue involves whether the First District properly interpreted the NICA statute, this Court’s standard of review is de novo. The Court must begin with the actual language in the statute “because legislative intent is determined primarily from the statute’s text.” As this Court has often repeated, “When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Further, courts are “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Likewise, when a court interprets a statute, “it must give full effect to all statutory provisions. Courts should avoid readings that would render part of a statute meaningless.” Another important principle that applies in this case is that because the NICA Plan limits the remedies as a statutory substitute for common law rights and liabilities, its provisions should be strictly construed. In applying the statute to this case, there is no factual dispute that the minor child suffered from two incidents of oxygen deprivation: one on September 26, 2001, and the other on October 3, 2001. Nor is there any question that she suffered a brain injury that rendered her permanently and substantially mentally and physically impaired. The only question becomes whether the minor child’s brain injury occurred “in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.”

Here, the ALJ made factual findings that Tristan did not suffer a “birth-related neurological injury” as defined by the NICA Plan because the minor child’s profound neurologic impairments resulted from a brain injury caused by oxygen deprivation that occurred on October 3, 2001, and not during labor, delivery, or resuscitation in the immediate post-delivery period in the hospital.” In making this determination, the ALJ found that although the record established that the minor child, more likely than not, suffered from oxygen deprivation at birth on September 26, resulting in a multi-system failure that included her liver and kidneys, this oxygen deprivation did not cause a substantial neurological impairment. In support of this finding, the ALJ noted that the record established that she was delivered a traumatically, responded well to initial resuscitation, and her neurological examinations during the first seven days of life were normal. However, on October 3, she suffered prolonged and severe acidosis and shortly thereafter evidenced seizure activity and neurological decline. The Court holds that a narrow construction of the statute is the more reasonable interpretation. First, it restricts the impact of the statute to those situations involving obstetricians, who are the group of physicians that the NICA Plan was designed to benefit. Otherwise, as NICA points out in its brief, under the First District’s interpretation, the statute would be expanded to cover situations where an infant is “transferred from the delivery room” and the “obstetrician relinquishes responsibility of the infant to other health care providers.”

The Court concludes that the First District’s statutory construction analysis of the applicable statute was flawed in two separate ways. First, the district court interpreted the phrase “immediate post-delivery period in the hospital” to mean “an extended period of days when a baby is delivered with a life-threatening condition and requires close supervision.” Because the First District failed to read the phrase “immediate post-delivery period” as modifying “resuscitation,” the First District expanded the NICA Plan to cover infants beyond the limit contemplated by the express language of the statute. Second, the First District incorrectly held that under section 766.309(1)(a), Florida Statutes (2001), the rebuttable presumption of coverage under the NICA Plan applied to benefit the defendants, even though the petitioners were not making a claim for compensation under the NICA Plan.

Accordingly, the Court holds that in order for a “birth-related neurological injury” to occur, the birth injury to the brain caused by oxygen deprivation, which renders the infant permanently and substantially impaired, must occur during labor, delivery or resuscitation in the immediate post-delivery period. That period does not encompass an additional “extended period of time when a baby is delivered in a life-threatening condition” unless there are ongoing and continuous efforts of resuscitation. Both the incident of oxygen deprivation and the brain injury resulting from the oxygen deprivation must occur in this time period. Further, regarding the statutory presumption, only the individual seeking compensation under the NICA Plan is entitled to the benefit of the statutory presumption. Based on our analysis, the Court approves the analysis in Orlando Regional to the extent that it is consistent with this decision, quash the First District’s decision below, and remand to the First District with directions to affirm the ALJ’s final order. Long Island and Manhattan Courts have dealt with similar cases.

In view of the foregoing, the Court held that in reviewing the facts under the correct interpretation of the statute, the Court holds that the ALJ’s finding that the minor child did not sustain a “birth-related neurological injury” under the NICA Plan is supported by competent, substantial evidence.
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Appellant Hospital appeals an order issued by an administrative law judge [“ALJ”] finding that claimant was not subject to compensation under the Florida Birth-Related Neurological Injury Compensation Plan [“the plan”], because she was not permanently and substantially “mentally impaired” within the meaning of the plan. Appellants contend that, based on certain undisputed facts, she was permanently and substantially mentally impaired as a matter of law.
The minor child was born at Florida Hospital in Altamonte Springs, Florida, on November 28, 1997. She was deprived of oxygen during birth and sustained serious birth injuries. An expert said that, her parents filed an action for medical malpractice in Seminole County circuit court against the appellant Hospital, as well as the two physicians who provided obstetrical services to the child’s mother, and Mid-Florida OB/GYN Specialists, Inc. Both obstetricians were “participating physicians” under the plan and the hospital was a participating hospital, but the parents did not file or pursue a claim for benefits under the plan.

An Injury Lawyer said that, the Florida Birth-Related Neurological Injury Compensation Association [“NICA”] intervened in the circuit court action, claiming that the child’s birth injuries were subject to the plan. The circuit court abated the action and required the parents to file a petition with the Division of Administrative Hearings to resolve whether the child was covered by the plan. The NICA statute defines “birth-related neurological injury” to mean an injury which, among other things, renders the infant both “permanently and substantially mentally and physically impaired.” The parents’ position was that the child did not meet the criteria for coverage under the plan because, although she had suffered significant physical impairments, she had not sustained a permanent and substantial mental impairment.

A two-day hearing was held before an ALJ, principally to resolve the issue of mental impairment. The evidence adduced at the hearing showed that Raven had significant and severe physical injuries due to oxygen deprivation. It was essentially undisputed that she has cerebral palsy, which refers to a group of motor disorders caused by an injury to the developing brain. Also, the child’s CAT scans and MRI’s showed that she had sustained various permanent injuries to her brain. Her imaging studies show that she has damage to both sides of the basal ganglia and thalamus. There was also damage to the white matter surrounding the basal ganglia, the hippocampi, both frontal lobes, both parietal lobes, the corpus callosum, and the cerebral cortex. Most witnesses testified these injuries were diffuse, as opposed to global in nature. Her physical injuries include both spasticity and stiffness; when she tries to move, her body goes in the opposite direction and she gets posturing, as well as a wiggly movement. She is unable to walk or talk and has problems holding her head up and directing her gaze. She can crawl or sit up only with assistance. She cannot reach out and hold objects. She is unable to eat by mouth and must wear a diaper. Statistically, a little less than one-half of the children, who present with cerebral palsy, as the child does, are not cognitively impaired.

The issue in this case is whether the minor child has a permanent and substantial “mental impairment” in addition to the cerebral palsy.

Notwithstanding the evidence adduced at the hearing and the ALJ’s factual findings, appellants’ position, simply put, is that the minor child was permanently and substantially mentally impaired as a matter of law.

For this contention, the Court said that, they rely on 1997 Supreme Court decision. The 1997case involved birth injuries apparently similar to those sustained by the minor child in this case. As a result of birth-related events causing oxygen deprivation, the child in this 1997 case suffered a focal injury to the basal ganglia, an area of the brain which aids the body in performing “physical functions.” Despite severe physical limitations, testing indicated that he was average or even above average in his cognitive skills. His parents nonetheless sought compensation under the plan, claiming that he was “mentally impaired” within the meaning of section 766.302(2), Florida Statutes (1991). NICA denied coverage, and a hearing was held to determine whether his injury was covered by the plan. At the close of the opinion, the Supreme Court of Florida approved the hearing officer’s conclusion that he had sustained both mental and physical impairment within the meaning of the plan, briefly explaining: We are left with the hearing officer’s finding which is properly predicated on a reading of the statute in the conjunctive that the child is “permanently and substantially mentally and physically impaired and has suffered a `birth-related neurological injury’ within the meaning of section 766.302(2).” Having thoroughly reviewed the record and the hearing officer’s final order, we conclude that it is supported by competent and substantial evidence. Consequently, we disapprove the opinion below to the extent that it misconstrues the plain language of the statute, but approve the result, and direct that the case be remanded to DOAH for a determination of the amount of compensation he is entitled to under the NICA Plan.
In the case at bar, appellants construe the above-quoted passage from the 1997 case decision to create the definition of “substantial mental impairment” as this phrase is used in NICA. According to appellants, “The 1997 decision added to the definition of substantial mental impairment by effectively adding a requirement that the child be able to translate any cognitive capabilities into adequate learning in a `normal manner.’ “It is apparent, however, that the 1997 case court did not define or redefine “substantial mental impairment.” They simply said that the decision of the ALJ was supported by competent evidence. All this language in the 1997 case suggests is that, under NICA, the identification of a substantial mental impairment may include not only significant cognitive deficiencies but can include, in a proper case, additional circumstances such as significant barriers to learning and social development.

Appellants urge that, although the minor child’s brain injuries have not resulted in cognitive impairment, in the sense that they do prevent her from learning or thinking, they must, as a matter of law, constitute a “mental impairment” within the meaning of the plan because, she will require substantial accommodation in order to translate normal cognitive capabilities into learning. Apart from the evidence adduced and the findings made in this case, there are many other problems with this position. First, as a definition, it is not the plain and ordinary meaning of the undefined statutory term. The 1997 case court made clear that the plain and ordinary meaning of these terms should be applied. Second, it violates the definitional framework approved by the Supreme Court in the 1997 case. ‘The Statute is written in the conjunctive and can only be interpreted to require permanent and substantial impairment that has both physical and mental elements.’

To say that physical disabilities that impede the cognitive and social development of a child alone are enough to constitute a mental impairment violates the dichotomy identified by the high court. If this were the true definition of “substantial mental impairment,” then seemingly most children with cerebral palsy would be classifiable as “substantially mentally impaired,” although the evidence indicates that cerebral palsy and mental defect are two separate injuries. There was expert testimony that children with oxygen deprivation injuries “can be physically disabled, yet be intellectually preserved.” Cerebral palsy is a motor injury which occurs when the circuits in the brain that control movement are damaged, while cognitive injury or impairment occurs when circuits relating to memory or learning are impaired. Furthermore, according to the testimony, oxygen deprivation or hypoxia first attacks those areas of the brain which control motor function, and only secondarily results in damage to mental function.

Courts have always recognized that different juries may reach a different result on similar facts. It is common for us to see, for example, that juries have awarded significantly different sums for apparently identical injuries. We similarly see different outcomes when the fact finder is asked to determine whether a particular injury is “permanent” or “not permanent.” These differences arise not because we have an “unprincipled, incoherent system” but because such differences can arise in a principled and coherent system where every individual is guaranteed an opportunity to lay his own case before an impartial arbiter of the facts. In most cases, this is a jury. In cases such as the one before us, the ALJ, as fact finder, brings his own background, training, experience and expertise to the task of weighing and evaluating very sophisticated evidence. The child’s advocate likewise brings his own communication and strategic skills to the fact-finding process; and finally, the evidence in each case will vary in its power to persuade. This will be especially true in cases where the opinions of experts are considered. In each case, the ALJ appears to have attempted to apply the plain and ordinary meaning of the term “substantial mental impairment” to his evaluation of the evidence. The term is broad enough to encompass more than just damage to cognitive capacity, contrary to appellees’ argument, and more than merely the inability to “translate cognitive capabilities into adequate learning in the normal manner” or “impairment of social and vocational development,” as urged by appellants. Both the ALJ in the 1997 case and the ALJ in this case appear to have understood this and to have done their job conscientiously.

Finally, as judges, we learn, early on, that there are always fact situations at the margins where it is very difficult to determine the side of a line on which a particular decision will fall. That is one reason why our review is limited to whether the decision was supported by substantial competent evidence. Appellants bore the burden of persuasion in this case that the minor child was “substantially mentally impaired” and its evidence was not persuasive to the finder of fact.

Accordingly, The Court held that judgment is affirmed. Courts in Long Island and Staten Island would do the same.
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An action to recover damages for medical malpractice was filed. The defendant was found by the court, on the issue of liability, to be 75% at fault and the plaintiff 25% at fault in the causation of the plaintiff’s injuries; and, on the issue of damages, that the plaintiff sustained damages in the sums of $150,000 for past mental distress, $50,000 for future mental distress, and $134,000 for loss of past financial support, and awarded the plaintiff the sum of $166,000 in punitive damages.

Defendant then appeals from the aforesaid decision and upon the denial of his motion pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability as contrary to the weight of the evidence and for a new trial or, in the alternative, to set aside the jury verdict on the issue of liability and for judgment as a matter of law, is in favor of the plaintiff and against him in the principal sum of $416,500, and the plaintiff cross-appeals from stated portions of the same judgment.

The Ruling:
Under the rules, a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence.
Here, the plaintiff sought to recover damages for medical malpractice and, thus, was required to prove that the defendant’s deviation from good and accepted medical practice proximately caused her injury. The credible evidence at trial established that the plaintiff sought and obtained treatment from the defendant for, among other things, mental health issues, and that, during and after the course of the treatment for mental health issues, the defendant and the plaintiff became involved with each other sexually for a period of approximately nine months. After the sexual relationship began, and concurrently with it, the Manhattan plaintiff was also treated by a Long Island therapist who was recommended by the defendant. The plaintiff disclosed to that therapist that she was having an affair, but she did not disclose that the affair was with the defendant since, as the plaintiff explained at trial, the therapist and the defendant were friends. The jury found that the defendant’s conduct departed from good and accepted medical practice, and that this departure proximately caused the plaintiff to suffer emotional distress and economic loss. The jury found that the defendant was 75% at fault and the plaintiff was 25% at fault with respect to the plaintiff’s injuries. The jury also awarded the plaintiff punitive damages in the sum of $166,000.

The court finds that the plaintiff made a prima facie showing at trial that the defendant committed medical malpractice. Furthermore, the jury’s verdict on the issue of liability was supported by a fair interpretation of the evidence and, thus, was not contrary to the weight of the credible evidence. As the plaintiff’s expert has testified, by reason of the particularly sensitive nature of the relationship between a mental health provider and a patient, including the emotional dependence of the patient on the provider, a sexual relationship between the patient and the provider is very likely to harm the patient. A sexual relationship between a mental health provider and a patient is a departure from the standard of care, whether it is characterized as part of the treatment or independent of it and it is a departure even when it takes place after the treatment has ended. In the instant case, the plaintiff relied on the defendant for treatment, medication, and talk therapy relating to mental health issues arising, at least in part, out of problems she was having in her marriage. Her sexual relationship with the defendant began while that mental health treatment was continuing, and it clearly had an impact upon the plaintiff’s level of trust and openness with her other therapist. The fact that the plaintiff acknowledged that the sexual relationship between the defendant and her was not part of the treatment does not mitigate the breach of trust and, therefore, does not mitigate the defendant’s breach of duty. More so, as stated in the expert testimony adduced by the plaintiff, it was entirely foreseeable that eroticized transference, in which the doctor becomes, for the patient, a very sexually charged figure, would occur as a result of the treatment. Rather than competently dealing with that transference, as the applicable standard of care requires, the defendant exploited it. In addition, a mental health provider’s duty is different, and a sexual relationship between that provider and a patient violates the trust that lies at the heart of the relationship. It is irrelevant that the defendant was not actually a psychiatrist. When the defendant started providing talk therapy, he assumed the duty of care applicable to mental health providers.

In sum, the defendant undoubtedly committed medical malpractice by having a sexual relationship with the plaintiff, even where the plaintiff knew that the sexual relationship was not in furtherance or a part of the medical treatment; the jury’s determination to award punitive damages was justified; the evidence established that the defendant’s departure from the standard of care predictably and inevitably damaged the plaintiff in those areas for which she sought treatment and was most vulnerable; over the prolonged period during which the defendant departed from the applicable standard of care, the defendant’s reprehensible conduct evinced a gross indifference to his patient’s well-being; the Court properly denied the defendant’s midtrial application to preclude evidence of certain special damages, inasmuch as, among other things, that application was untimely; and, the jury’s award did not deviate materially from what would be reasonable compensation. The court finds the parties’ remaining contentions without merit. Accordingly, the judgment is affirmed.
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On April 6, 2007, the New York State Emergency Medical Services (EMS) responded to a call just before ten at night to an apartment on Colonial Road in Brooklyn. The call was related to a twenty-five year old woman bleeding vaginally. Upon their arrival, the EMS team noticed that there was blood in the shower area and that the young woman who was seated on the commode was bleeding from her vagina. She was cold and clammy and was transported immediately. The EMS team asked her if she was pregnant or if she could be pregnant. She stated that she was not. However, upon admittance into the hospital at Lutheran Medical Center, the doctors discovered that it was clear that she had recently given birth to a child. The woman refused to admit that she had delivered a baby.

The Long Island hospital personnel contacted the police department to locate the baby. The police officers returned to the apartment and questioned the sister of the woman who was in the hospital. They told her that the hospital had said that there was a baby and that they needed to check on the welfare of the child. They repeatedly asked the sister where the baby was. She denied that there was a baby, but finally told them that there were several garbage bags outside in the cold night air behind the apartment. When the officers examined the contents of the garbage bags, they discovered the body of a newborn infant girl in the trash. She was still alive, but showing no signs of life other than being pink in color. She was intubated and transferred to the hospital for emergency medical care. The infant died shortly after arrival. Her cause of death was from exposure to the cold and hypoxia brought on by being tied up in a garbage bag.

The young woman was charged with homicide in causing the death of her newborn infant. The defense attorney filed a motion to suppress the evidence that was collected by the police officers because they contend that it should be excluded from the case under the exclusionary rule. Their contention was based on the idea that the police officers had responded to the location without a warrant and had located the infant based on confidential medical information that was illegally obtained.

The state maintains that the Westchester doctors were well within the law when they contacted the police department with the information that the mother was admitted to the hospital after having just given birth to a child that was missing. It is a statutory requirement that any child that is endangered by reported to the police immediately. The facts of the situation made it obvious that the child was endangered. When any woman is admitted into a hospital denying that she has given birth, when the evidence is clear that she has, must cause concern. The fact that she would not reveal the location of the infant would lead a reasonable person to believe that the infant is most likely endangered, especially, given the temperature that night in April. The police were then legally notified that there was a possibly endangered child at the location where the woman had been collected. The police were then legally responsible to go to the location and make reasonable inquiry into the location of the infant. The court maintained that there was no impropriety taken in searching the garbage bags and locating the infant.

Thus, the woman’s defense counsel was denied their request to suppress all of the evidence that was located following the disclosure to the police by the doctors that she had recently given birth. The court determined that all evidence was legally obtained and was therefore fully admissible in a court of law.
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The Facts:

Petitioner was diagnosed with stomach cancer by hospital-one after undergoing an endoscopy and after staff at hospital-two and hospital-three who saw petitioner on many occasions through 2009 failed to make that diagnosis or perform any diagnostic testing. Petitioner claims that the delay in diagnosing her cancer allowed the cancer to progress and adversely affect her prognosis. Thus, an action for medical malpractice ensued.

Petitioner moves for leave to serve a late Notice of Claim, pursuant to the General Municipal Law. The New York City Health and Hospitals Corporation (NYCHHC) opposes the petition, contending that there has been at least a six month delay in filing the Notice of Claim against NYCHHC, and, more than one year ninety day delay in filing the Notice of Claim against the individual respondent, who NYCHHC claims, and petitioner does not dispute, last saw petitioner on 9 May 2008.

The Ruling:

Under the General Municipal Law, a claimant commencing a tort action against a public corporation must serve and file a proper Notice of Claim within ninety days after the claim arises. The related action or proceeding must be commenced within one year and ninety days of the event. An application for an extension of time to serve a Notice of Claim may be made before or after the action has been commenced, but not after the one-year and ninety-day statute of limitations has run, unless the statute has been tolled.

As a rule, in determining whether to grant leave to file a late Notice of Claim pursuant to General Municipal Law, a court must consider the key factors of whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame, whether the municipality acquired actual notice of the essential facts of the claim within ninety days after the claim arose or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense. The presence or absence of any one factor is not determinative.

First, on the actual notice of petitioner’s claim:

It has been ruled that merely having or creating hospital records, without more, does not establish actual knowledge of a potential brain injury, spinal injury or any other 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. Thus, while agreeing with the plaintiff that General Municipal Law only requires actual knowledge of the essential facts constituting the claim, and not knowledge of a legal theory, the Court of Appeals has held that where, as here, there is little to suggest birth injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim.
Here, no affidavit is proffered to establish that the hospital records contain sufficient information about the facts constituting the claim so as to constitute actual knowledge. However, contrary to NYCHHC’s argument, the failure to supply such an affidavit is not fatal; actual notice is merely one element of the analysis.

Second, when the petitioner has a reasonable excuse for her filing delay:

In the instant case, although petitioner failed to demonstrate that NYCHHC had actual notice, the failure is not fatal as petitioner has a reasonable excuse for the short six month delay and NYCHHC is not prejudiced as a result. The long Island petitioner only received the diagnosis of stomach cancer sometime in March of 2010; she had surgery on 22 March 2010; she stayed one week in the hospital; and she had chemotherapy and radiation treatment immediately thereafter. It is not reasonable to expect that petitioner would have served the Notice of Claim on NYCHCC within 90 days of her last treatment at NYCHCC’s hospitals, as NYCHHC claims she should have, given that she, as a layperson, would not have known that any malpractice occurred.
And third, on the issue of prejudice:

NYCHHC claims that it will be substantially prejudiced by the late filing because a prompt investigation was not done, due to lack of timely notice; that respondent cannot be certain that relevant staff members are still employed and even if they are, it will be difficult for them to remember events occurring as far back as 2007. However, petitioner made complaints to both hospitals through 2009. No effort has been made to ascertain whether staff members are still employed, and given that medical records are kept in the ordinary course of business, memories, if lost, can be refreshed by the records.

Here, petitioner alleges, and NYCHHC does not dispute, that she saw hospital-two’s staff numerous times between 2007 through 2009 and hospital-three’s staff numerous times in August of 2009.

While it has not been demonstrated that NYCHHC had actual knowledge of the facts constituting petitioner’s claim, petitioner clearly has a reasonable excuse for the delay in serving the Notice of Claim, and the delay will not substantially prejudice NYCHHC.
In sum, the petition for leave to serve a late Notice of Claim is granted against respondent NYCHHC, and the Notice of Claim, as amended, is deemed timely served on respondent NYCHHC only; denied as to respondent individual.
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The standard of healthcare in some of Yorkshires best hospitals and clinics has been called into question. This problem has become so serious that it is costing taxpayers over £150 per minute. Almost a third of this money will go directly to lawyers.

The NHS has had to pay out for various medical negligence cases. This costs the NHS over £80 million per year. This is money that could be better off spent providing better medical treatment.

Clinics in Yorkshire have experienced over 1,280 cases against them. These cases include medical malpractice and medical. The number of cases seemed to be increasing every year, with a 10% increase in the number of cases in 2010.

The Manhattan report explains that the government has been forced to introduce new laws which can be used to reduce the number of claims against doctors.

However, as the report points out, these reforms might make it much more difficult for any injured patients to get the compensation they deserve. It could also stop many cases coming to light.

Almost a quarter of the payments were a result of poor treatment provided to young babies and pregnant ladies.

The source explains that the government has outlined changes to the legal system. This should prevent the health service from needing to pay lawyers’ fees and insurance premiums when cases are lost.

It’s also been suggested to stop offering legal aid for these negligence claims as this is encouraging more people to file lawsuits.

Some patients are critical over these reforms. Although they will reduce the costs to the NHS it will do nothing to help the people who are injured at the hands of the health care system.

Many Long Island lawyers can see the reforms halving the number of medical malpractice cases in Yorkshire. An investigation to these reforms is currently ongoing to try and decide whether or not they are in the public interest.

Medical malpractice lawsuits are a major problem around the world. While they do help many people, many other people are wondering whether they are negatively affecting health care in the country.
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The University of Miami has been trying to protect its doctors from malpractice suits for years. They finally managed to do this explained a well-known Medical MalpracticeLawyer. Florida lawmakers have agreed to extend the lawsuit protection to university doctors when they are working in a public hospital.

It’s suspected that the bill will become law. The state protects all hospital employees who are employed by the government from any major malpractice judgment. However, University of Miami school doctors who teach are not protected in the same way.

University of Miami officials have been trying to get the same benefits for their employees for over two decades. The university argues that many patients will sue the university instead of the hospital because the university is less familiar with these cases and more likely to pay out.

The university needs to pay over $40 million per year on defending malpractice. It’s thought that the new legislation could cut the expense from defending these cases in Manhattan and Long Island by half. This will be a major cost saving for the university.

The university believes that this is a useful bill which will even out the playing field and make it much easier for the university to compete and offer good medical facilities to its patients.

Jackson hospital backed the proposals and Florida International University also supported it. This is because the university also wants the students to study along with UM doctors at Jackson Hospital.

The measure was opposed by many trial lawyers who did not want the bill to be passed. The lawyers tried to say that this bill accepted negative negligence and accepted that it would happen. It also said that the medical universities didn’t have enough requirements to keep records. Lawyers argued that the university hospitals will need to keep the same records as state hospitals.

The senate voted to make sure that the expert witnesses which can be called are chosen and regulated by the state. This puts restrictions on using out of state experts as was common with almost all medical malpractice cases claims the Lawyer.
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