Articles Posted in Bronx

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The Bronx plaintiff in this case is appealing an order from the Supreme Court of Westchester County. The order from the court denied the plaintiff’s motion for summary judgment on the issue of liability, dismissed the complaint made against the defendants, and granted portions of the cross motion of the defendants for summary judgment dismissing the complaint as it was alleged that the defendants committed legal malpractice by failing to interpose a claim in an underlying action of rescission based on a mistake.

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.
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The Bronx appellant in this case is appealing by permission an order that denied his motion to vacate a finding of liability made by a medical malpractice panel. There are five main issues to consider on this appeal.

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.
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The case before the court is one of legal malpractice. The Bronx plaintiff had a bi-lateral mastectomy, which she claims was the result of being misdiagnosed. The plaintiffs are seeking a judgment against the defendants for negligently prosecuting a medical malpractice action on behalf of the plaintiff.

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.
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This is an instant action brought forth by the plaintiff for herself, her deceased husband, and her four children. The case involves personal injury claims that arise from a car accident and medical malpractice claims in regard to the treatment that her husband received at the defendant hospital for the injuries that he sustained during the car accident.

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.
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The appeal before the court raises the question as to whether a patient of a medical group that has allegedly suffered from an injury caused by malpractice of the doctors that are associated with the group is entitled to the benefit of the continuous treatment doctrine against the doctors that have allegedly committed the malpractice where the patient has continued to receive treatment for the same injury, illness, or condition from other members of the same group after the alleged wrongdoing doctors have left the group.

Case Background
The defendants are two physicians who left the group. They have moved for summary judgment at Special Term on the basis of the alleged termination of the relationship of each of the movants with the other defendants that were their former partners. They argue that upon leaving the group the statute of limitations started to run for any acts of malpractice that they may have committed while a member of the group. As a consequence of this argument, the action in this particular case that was started in February of 1980 is time barred.

This motion has been denied by the Special Term. The reason for denying the motion was stated that there is a question of fact in regard to the case that needs to be resolved. The court must determine whether a sufficient nexus exists between the moving defendants and the doctors in the group practice that continued to treat the patient after they left.

Case Facts
The medical malpractice action in this case was filed by the defendant patient in February, 1980. The plaintiff in the case had his first contact with the defendants in 1973 when he met with the physician because of constant pain, tingling, and numbness in his leg. The doctor concluded that the symptoms were coming from a mass lesion or tumor in the left cerebral hemisphere. He recommended that the plaintiff be admitted for further neurological testing.

The two Bronx doctors that left the group last treated the patient in January of 1974. One of the doctors left the group in August of 1974 and the other left in December of the same year. The patient continued to be cared for by the group until 1978.

Court Discussion and Decision
The Brooklyn court is affirming the decision that was made in the Special Term that denied the motion for summary judgment on the grounds of the complaint being time barred.

In this particular case the court finds that the continuous treatment doctrine is applicable to toll the Statute of Limitation for a malpractice action against the physicians that allegedly committed an act of medical malpractice and have terminated their relationship with the group medical practice. If the patient was considered to be a group patient, was treated by the group, and remained under the care of the group even after the primary care physicians have left the group, the continuous treatment doctrine must be applied.
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This is a medical malpractice case where it is alleged that the plaintiff suffered from injuries as a result of the still birth of her infant as a result of prenatal malpractice and negligence of the defendants.

The plaintiff sought prenatal care from the defendants starting in July of 2001 through November of 2001 for her pregnancy. The result was a still birth on the fourteenth of December. The plaintiff states that she was exposed to DES which increased her risk of having an incompetent cervix and that the defendants should have performed a cerclage procedure in order to tighten her cervix to prevent a still birth or miscarriage.

Case Background
The plaintiff started this case in June of 2004. There are six causes of action asserted by the plaintiff including medical malpractice, lack of informed consent, negligent infliction of emotional distress, negligent hiring and retention, and inadequate staffing and negligent health care facility administration.

Case Discussion
The plaintiff’s cause of action for medical malpractice and for lack of informed consent is governed by a 2 and ½ year statute of limitations. It is noted that the plaintiff did not seek treatment from the defendants after the 8th of November, 2001 and because of this these causes of action are both time barred.

The cause of action for negligent infliction of emotional distress was only recently created by the court of appeals where it was held that even in the absence of an independent injury medical malpractice that results in a miscarriage or still birth should be construed as a violation of a duty of care to the expectant mother entitling her to damages for emotional distress.

The Bronx and Brooklyn defendants argue that this is barred by the two and a half year time limit as well. However, the new ruling may have changed this. The plaintiff must provide evidence to demonstrate that the defendant’s action was a departure from the accepted standard of care in the medical community.

The motion by the defendants for leave to reargue separate orders are granted and upon re-argument the summary judgment motion from the doctor is granted to the extent that all of the causes of action that were asserted against him.
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This is a claim for medical malpractice against the Manhattan health and hospitals corporation brought by a mother, individually and on behalf of her son. The infant was born at one hospital and allege that the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital’s mismanagement of the labor and delivery. Though the infant was transferred to another hospital and stayed for almost two weeks, he was then transferred back with the previous hospital where he received continuous treatment. It is also alleged that the infant suffers from brain injury and severe developmental delays.

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

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

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

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

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

On 8 April 2005, the subject infant was born at a hospital. Allegedly, the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital’s mismanagement of the labor and delivery. Though the infant was transferred to another hospital on 9 April 2005 for almost two weeks, he was transferred back where he remained until 24 May 2005. Thereafter, he was treated at the same Hospital through 2006.

A claim for medical malpracticeagainst the New York City Health and Hospitals Corporation thereafter ensued brought by the infant’s mother, individually and on behalf of her son, the subject infant. It is alleged that the infant suffers from brain injury and severe developmental delays.

The Ruling:

In the case at bar, the court lacks jurisdiction to grant leave to file a late notice of claim as to the mother’s individual claims because her application is made more than one year and ninety days from the accrual of the action. As to the infant’s claims, based on the dates of the alleged malpractice, a notice of claim should have been served on respondent by 7 June 2005; however, the infant is the beneficiary of a CPLR infancy toll. Hence, the court may consider the application pursuant to General Municipal Law.

Under the rules, in determining whether to allow a late filing, the court must consider various factors: whether the petitioner has demonstrated a reasonable excuse for failing to serve a timely notice of claim, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or reasonable time thereafter, and whether the delay would substantially prejudice the public corporation in defending on the merits.
Here, although the infant had a complicated course in the hospital following delivery, a difficult hospital course, as evidenced by entries in the Hospital’s records at the time of the petitioner’s birth, does not, standing alone, provide notice of the facts underlying a malpractice claim. Besides, entries in the medical records reveal that the infant was developing normally at the time of discharge and there was no indication of a long term injury. In fact, in the supporting affidavit of the infant’s mother, she admits to being aware of such conclusion by noting that at the age of three months her son had met all developmental milestones. Moreover, a note of a 20 July 2006 neurology visit supports such conclusion. Furthermore, sometime in October of 2006, the infant’s mother also stated that, at about 17 months post-delivery, her son had once again met all milestones. The infant’s mother stated that she did not learn of her son’s alleged delays until some point thereafter and that it was not until 2008 that more findings led her to believe that her son’s damages were in fact related to his birthing process. Evidently, the respondent could not have been aware of any birth injury attributable to the delivery within 90 days of the date of accrual, or a reasonable time thereafter, as there was no indication that the infant suffered any alleged delays until later. Hence, the subject medical records alone, on their face, do not evince that respondent, by its acts or omissions, inflicted injuries on the infant and that respondent should have been aware of the same within the applicable 90 days, or a reasonable time thereafter.

In addition, the mother’s excuse for not being aware that her son’s problems could have been caused by malpractice was that she only has a high school education and was 23 years old at the time of her son’s birth is bereft of merit. Ignorance of the law requiring that a notice of claim be filed is not an acceptable excuse.

What’s more, there is no support for the assertion that the delay was the product of infancy or of the need to provide the infant with extraordinary care. Petitioner has failed to offer a reasonable excuse for the delay in filing the notice of claim.

In sum, the petitioners in The Bronx and Westchester failed to offer the necessary nexus between the act of the respondent and any injury to petitioner that would put the hospital on notice that a claim would be filed with regard to the delivery at issue. The mere assertion that because the infant suffered a difficult neonatal course puts the respondent on notice of a malpractice claim is rejected. To prevail on the application, petitioner must establish that respondent had notice that the hospital departed from the standard of care in treating the infant, and that those departures caused the infant’s injuries. Here, petitioner has not established these elements; hence, the application is denied. The petitioners’ application, by Order to Show Cause, for an order seeking leave to file a late notice of claim and setting an immediate date for an examination of the claimant pursuant to the General Municipal Law is denied.
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The Supreme Court in Ohio has recently changed the way that medical malpractice cases are handled. A Lawyer describes that the state will now consider emotional distress caused by the injury when deciding on the level of compensation to be awarded.

Between 1997 and 2004, a female patient attended Reflections Breast Health Center every year. This clinic was owned and operated by Radiology and Imaging Services Inc. She visited the clinic every year to have annually mammograms. All of the mammograms were inspected by professionals and decided that they were normal. A mammogram in 2003 was said to be clear of any signs of cancer explains a doctor.

However, in mid-2004 the patient discovered a lump in her left breast. She mentioned this to her physician. She was hen referred back to Reflections for tests. The film found that the mass was almost certainly cancerous. Expert witnesses from The Bronx and Staten Island said that between 2003 and 2004 he mass had grown from 1cm to 2cm. A biopsy of the mass was done and this found that it was malignant.

The doctors carried out a dissection of lymph nodes close to the cancer to try and determine whether or not the cancer had spread. Two out of eight lymph nodes had tested positive for the cancer.

The patient needed chemotherapy, radiotherapy, hormone therapy and had the lump surgically removed.

The patient later filed a complaint alleging that the clinic had been grossly negligent in missing her cancer for so long. The claims stated that the clinic had failed to supervise the doctor. It also mentions that the doctor did not detect the cancer in time for treatment to be simple. Instead it was only detected when it was much more advanced.

The trial court found that the case must fail because cancer is not a physical injury which can be compensated in Ohio. This meant that the trial court granted judgment in favor of the hospital and doctor and dismissed the claims.

However, it has later been found that the patient would have been able to claim for emotional distress in her medical malpractice claim. This means that the case should have been allowed to go to trial.
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Lawyers and doctors don’t generally get on very well. There are a number of reasons for this, but the most common is because of distrust between both doctors and lawyers. There are many medical malpractice stories floating around the internet comments the source.

Many doctors who charge Medicaid or Medicare for various medical procedures for tests that aren’t really necessary. This means that they are actually committing fraud according to Medicare and Medicaid programs.

The law has been made very clear to discuss this type of fraud, says the rep. When the issue was discussed at congressional hearings the doctors actually admitted the practice and then ended up trying to deny it when they were asked if they billed Medicare for the tests.

On the internet though, doctors are just as stupid when it comes to now knowing when to stop talking. The doctors are admitting on the internet that they do order unnecessary tests on a regular basis. Some doctors are even saying that they know how to beat the system and avoid getting caught out by the auditors. These doctors are costing the government more than they really should be for the same level of service.

Doctors are blatantly flouting the law just to boost their bottom lines. One doctor requested unnecessary tests on a patient which admitted that it was of no medical benefit to the patient. However, he then went on to say that he could find a way to prove that the tests were done for a specific reasons if it was ever needed.

The same doctors in The Bronx and Brooklyn said on justifying his actions said that the audit would never reveal the fraud. That’s because he believes he is better than the auditor. He thinks it is possible to justify any actions as being necessary and reasonable, even if they are just done to make more money.

Virtually any test could be ordered to look at any condition says the study. Chest pain can be tested using CT scans, EKG, And O2 Sat. It is very easy for a doctor to justify any of these tests even if they weren’t really required.
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