Articles Posted in Queens

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This is an action to recover legal fees. The plaintiff has moved to dismiss the counter claims made in the verified amended answer of the defendant. The defendant has filed a separate motion for leave to serve a second amended answer and to renew his prior motion to dismiss the complaint.

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.
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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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In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Queens County, dated May 4, 2006, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him. On November 11, 1999 the 26-month-old plaintiff was seen by the defendant doctor who diagnosed viral tonsillitis and prescribed medications to alleviate her symptoms. Later that day, the plaintiff developed additional symptoms and was admitted to Elmhurst Hospital Center (hereinafter Elmhurst) on November 12, 1999. The admitting diagnosis was pneumonia based upon a chest X-ray and blood test. During the plaintiff’s 13-day hospital stay, various antibiotic treatments were administered. Shortly after the plaintiff’s discharge from the hospital on November 24, 1999 her mother noticed that the plaintiff did not respond to speech and sound, indicating hearing loss, which was ultimately determined to be complete and permanent.

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.
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This appeal involves new legislation that concerns medical malpractice actions. The issue before the Supreme Court Appellate Division is whether or not the plaintiff’s failure to timely file a notice of the medical malpractice action was properly excused by the Supreme Court.

Case Facts
In March of 1986, the Queens plaintiff individually and as the administrator of her deceased infant’s estate started this action to recover damages for her daughter’s death as well as the conscious pain and suffering predicated by the Staten Island defendant physician’s alleged medical malpractice that resulted in the death of the infant.

In June of 1986, the defendant served an answer and sought discovery including the authorizations of all treating doctors’ records including hospital records and charts. The defendant also demanded a bill of particulars.

During a period of fourth months the defendant’s counsel requested authorizations from the plaintiff for the records that concerned the infant’s admissions. The counsel for the plaintiff does not dispute that the received this correspondence, but did not respond to it.

In March of 1987, the defendant moved for an order to dismiss the complaint on the basis that the plaintiff had failed to file a notice of medical malpractice action within 60 days and that the plaintiff had not made an application to extend her time to file the required notice.
Court Discussion and Decision
The original order made by the Supreme Court was in favor of the plaintiff and allowed an extension to be filed after the statute of limitations.

After reviewing all of the facts that have been presented in the case the court finds that the Supreme Court acted out of their discretion when they allowed the plaintiff to file a late CPLR notice. For this reason, the defendant’s motion to dismiss the complaint should be granted and the complaint against the defendant should be dismissed.
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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 Queens defendant is appealing an order that declared they had the obligation to defend and indemnify the plaintiff in an action against him by the administratrix of the estate of the deceased. The order that is being appealed denied the cross motion for summary judgment and declared that the insurance policies in question were in full force and effect and invoked the duty of the defendant to defend.

Case Background
The plaintiff applied to the defendant insurance association for professional liability insurance coverage in January of 1981. The insurance association made an error that resulted in the policy not being issued until June of 1982. There were two policies issued at this time. The first policy was in effect from February of 1981 through February of 1982 and is referred to as the 1981 policy. The second policy was in effect from February 1982 through February 1983 and is referred to as the 1982 policy.

In October of 1982 the doctor requested that the 1981 policy be cancelled and that the down payment for that particular policy be applied to the 1982 policy. It was during the span covered in the 1981 policy that the doctor was sued for malpractice.

Court Discussion

The question before the Staten Island court is whether the retroactive rescission of the 1981 policy that was done with the consent of the insurance company precluded coverage for the malpractice claim brought after the rescission, but relating to a time that the policy was in effect.

The Supreme Court decision stated that the insurance company must defend the doctor in the malpractice suit and allowed the counterclaim by the company against the doctor for unpaid premiums open for future resolution.

Court Decision
The court has reviewed the case and has determined that the insurance company is obligated to defend the doctor in the malpractice suit. The issue of whether any type of malpractice that was committed by the doctor falls into the policy exclusions must be determined after the action is completed. Based on the information that the court has been confronted with the judgment is affirmed as appealed from.
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On January 1, 2004, a man was found almost dead by the New York City fire Department Emergency Medical Staff Officials on 178th Street and Jamaica Avenue in Queens County. He was taken to Mary Immaculate Hospital where he died the following day. There was no identification on his person and he was unresponsive and unable to tell hospital personnel who he was. The hospital staff were not provided with a telephone number for any next of kin and were unable to notify his family. Per hospital policy, the hospital notified the police department. The hospitalfrom that point depended on the police department to notify any next of kin.

On January 3, 2004, the hospital made contact with the Medical Examiner’s Office. It is hospital policy to inquire at the Medical Examiner’s Office if a patient dies within 24 hours of being admitted to the hospital. The Medical Examiner’s Investigator was advised and made notations to that effect in his notes that the decedent’s next of kin had not been located at that time. The hospital contends that at the time that they notified the Medical Examiner’s office, they were no longer responsible for locating the next of kin. They state that that responsibility was transferred to the Medical Examiner’s office.

The Medical Examiner’s office had the man’s body for two months, yet according to his family, made no efforts to identify him or to contact his next of kin during the time that they were in possession of his body. The Medical Examiner’s office also made not attempts to contact the police department to determine if they had identified the man or contacted his next of kin. The hospital maintains that it did all that it could do to find out who the man was and to notify the family. The hospital contends that the failure on the part of the Medical Examiner’s office to notify the family should not be their responsibility.

The family of the man presented a medical face sheet from the hospital that was filled out at the time that the man was admitted into the hospital. It clearly reflects the man’s full name, address, date of birth, and social security number. It states that the man was not transferred to the Medical Examiner’s office until January 4, 2004. The medical report showed a notation on January 2, 2004 from the doctor that stated that a Nursing supervisor would contact the family. The residence was very close to the hospital. The family contends that the hospital mishandled the body of their loved one by not taking any steps to notify them in a timely fashion that their loved one was in the hospital, or that he had become deceased. The laws of New York provide that a family has the right to sue for improper handling of a loved one’s body that prevents the family from being able to recover the body for proper burial. The case must hinge on the emotional effects that the interference with the body created.

The hospital filed a motion for summary judgment releasing them from liability in this case. They contend that they took every reasonable step to locate the next of kin and that they were released from liability at the point where the Medical Examiner’s office took possession of the man’s remains. The court does not agree. The court contends that the hospital had the necessary information in their hands to contact anyone else who lived at the same address as the decedent. Yet, even with this information, they made no attempt to contact the next of kin at that residence. The court denied the summary judgment and allowed the case to go to trial.
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This case is being heard in the Special Term of the Supreme Court of Queens County. NYC in the state of New York. The question before the court is whether the mother of a still born child who alleges that she was caused to endure excruciating pain and unnecessary injury and delay by reason of malpractice of the defendants is able to recover for the alleged emotional and psychic harm that resulted from the still born birth.

Case Discussion
The question before the court is interesting as the defendants of the case have motions for summary judgment to dismiss the complaint against them for failure to state a cause of action that is cognizable under the laws of the state of New York.

The case at hand deals with a medical malpractice action that arises from the obstetrical care that was provided to the plaintiff by the defendant hospital on the second of June, 1981. This is the date that the plaintiff delivered a stillborn fetus.

The plaintiff alleges that while at the defendant hospital she had numerous physicians attending to her pregnancy and delivery. She states that the defendants are guilty of malpractice because they failed to properly anticipate a breach delivery and did not provide competent physicians to handle such an issue.

The defendants tried to deliver the breech baby vaginally. This delayed the delivery of the infant and was extremely painful for the plaintiff. The plaintiff alleges that this was negligent and caused her to suffer from severe and serious physical, emotional, and mental injuries. It is further alleged that this delay in delivery was the cause of the infant being still born.
The defendants are arguing that the plaintiff has not stated a cause of action in the case and is only seeking emotional damages as a result of having a still born baby. The defendants argue that they are not liable for the baby being still born. The defendants offer several cases as evidence to support their case for summary judgment to dismiss the complaint that has been made against them.

Court Decision
Recent legislation in the state of New York allows mothers of still born children who meet certain criteria known as Bovsun criteria, to have their claims recognized as cognizant even if there are no physical injuries in the case. The plaintiff in this matter has met these criteria.
For this reason, the court finds that there are triable issues of fact in this particular case. The plaintiff has met her burden to establish these facts. The court is ruling in favor of the plaintiff in this case. The motion for summary judgment to dismiss the complaint made against them by the defendants is denied.
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On September 21, 1982, the Queens complainant 32-year-old woman visited her accused gynecologist for her annual check-up. At that time, the gynecologist made note of a one-centimeter mass on the outside lower quadrant of the woman’s left breast which he tentatively classified as a galactocele or a milk-filled cyst, but no further tests were performed. Ten months later, the woman returned to her Staten Island gynecologist complaining of a painful lump in her left breast and a swelling under her left arm. Following a mammography and other examinations, the mass in the woman’s breast was diagnosed as cancer which had metastasized or spread, to three ribs and two vertebrae. The woman died nearly two years later, as a result of the extensive metastasis of the cancer leaving as the sole beneficiary of her estate her then four-year-old daughter.

At the time her condition was first diagnosed, she was in the process of obtaining a divorce from her husband who contributed nothing toward her own or her child’s support. Although after the birth of her daughter, she had discontinued working outside the home, she was certified as a teacher for kindergarten through twelfth grade and had been a permanent substitute teacher in the Lawrence school district for one and one-half years prior to her daughter’s birth. She held undergraduate degrees in art education and psychology and was working toward obtaining an advanced degree in psychology in preparation for a child psychology program. She had always been a very self-sufficient and independent person. She had fully participated in the daily activities of her child. Because of her rapidly deteriorating physical condition and the negative effects of the medical treatment, the woman’s life changed to a tragically radical degree. She initially underwent two months of hormone therapy which was discontinued when she stopped responding. She began experiencing excruciating pain in her right leg which was determined to be caused by an additional lesion. She was then placed on a program of pain killers including morphine and methadone which her treating physician testified only dulled the recognition of pain in the brain but did not eliminate the pain. She also received a combination of five chemotherapy drugs which caused debilitating side effects. She became constipated, weak and tired, suffered from insomnia and began losing weight at the rate of two or three pounds per week. Her bones became very brittle and she was warned by her physicians to be very careful to avoid breaking them. In fact, she had to be hospitalized on three separate occasions for hypocalcaemia which is an elevation of calcium in the blood causing sleeplessness, lethargy, confusion, difficulty in walking, severe dehydration and ultimately death. The continuous vomiting caused by the chemotherapy resulted in dental infections and the loss of six teeth which she had to have extracted with only a minimal amount of novacaine due to the chemotherapy.

The woman became a virtual invalid. She relied on a homemaker, her friends and family to care for her child, to shop for her, to clean her house, to prepare meals and to drive her to the hospital. She had no physical strength. She was too weak to pick up her daughter or to perform any type of housework. Moreover, because of her weakened bones, she was afraid to go to any crowded places such as a train station or shopping mall for fear of being hit in her ribs or vertebrae. In any event, she was physically unable to shop for herself. Her social life became nonexistent.

Perhaps the more difficult pain for her was the emotional and psychological pain she suffered as a result of the loss of control over her life, the changed attitudes toward her of her family and friends and the strain of her illness on her relationship with her daughter. Her daughter was greatly affected by her illness and had difficulty understanding why her mother could no longer participate in activities with her. While she arranged for her daughter to be raised by her brother and sister-in-law who have three sons, she was saddened that she could bear no other children to provide brothers and sisters for her daughter.

In view of the woman’s extensive losses and suffering, the aggregate award on the first cause of action was well within the bounds of reason. The question remains whether, notwithstanding the reasonableness of the award, the trial court correctly included in its instructions on damages, a separate instruction on loss of enjoyment of life. The trial court’s instructions to the jury were entirely proper.

The complainant commenced an action to recover damages for conscious pain and suffering and wrongful death. The woman’s gynecologist and his professional corporation are charged with various acts of medical malpractice stemming from his failure to properly diagnose the woman’s breast cancer and to provide appropriate medical care and treatment. The jury, after finding the accused 90% liable and the deceased woman 10% contributorily negligent, rendered award of damages, in accordance with the court’s instructions and special interrogatories.
The accused gynecologist immediately moved to set aside the verdict on the grounds that as to liability the verdict was against the weight of the evidence and inconsistent. The gynecologist further charged that the damages awarded for the injuries were excessive, the damages for loss of enjoyment of life were duplicative of the damages awarded for pain and suffering, the amount awarded for prospective loss of inheritance was speculative, and the award of damages for college costs was also speculative as well as duplicative of the recovery for loss of support. The trial court denied the motion and, thereafter, entered judgment for the amounts awarded by the jury reduced by the 10% of the fault attributable to the complainant. The amount of the judgment with interest, costs and disbursements totaled $845,772.59.
The accused gynecologist’s appeal, arguing that the verdict as to liability is against the weight of the credible evidence adduced at the trial, the awards of separate amounts of damages for pain and suffering and impairment of the ability to enjoy life are duplicative, and the awards to the woman’s child on the wrongful death cause of action for loss of prospective inheritance and cost of a college education are speculative.

The trial court’s denial of the accused gynecologist’s motion to set aside the verdict in favor of the complainant as against the weight of the evidence is affirmed. As the courts have frequently stated, a verdict will be set aside on this basis only if the jury determination could not have been reached on any fair interpretation of the evidence. On such a review, the evidence must be viewed in a light most favorable to the complainant to determine whether a sufficient rational basis exists to support the jury’s finding of liability as to the accused.
One of the key issues in controversy at trial was whether the lump that the gynecologist first noticed in the woman’s breast in September 1982 was the same as the cancerous tumor surgically removed from the woman’s breast one year later. Apparently because of the woman’s history of being cystic, the gynecologist was not overly concerned about the lump upon its initial appearance. According to his trial testimony, after making a tentative determination that the lump was a one centimeter galactocele and making a diagram indicating the location of the lump, he advised the woman to return for a follow-up examination in two or three months. He conducted no further procedures to either confirm his diagnosis or to rule out the possibility of carcinoma. Nor did he advise the woman to examine her breasts during the intervening period. His office records confirm that he had doubts with respect to his diagnosis since next to the word galactocele and next to the diagram on which he indicated the location of the lump he placed a question mark. The records further corroborated his instructions to the woman.

In the course of the woman’s examination before trial, conducted prior to her death and read into the trial record in pertinent part, she testified that her gynecologist had found her to be in good health at the time of her checkup in September 1982 and told her to return in a year. Discovery of a painful lump and swelling under her left arm prompted the woman to return to her gynecologist. During that examination, she saw a diagram in her file with an X where the lump was. To her surprise, her gynecologist had been aware of the lump, identified it as a cyst and reassured her that he was watching it. No recommendation was issued that a mammography be performed or another physician be consulted. Her doctor simply prescribed vitamins and instructed her to return after her next period. Only later when she consulted the surgery doctor, upon her gynecologist’s recommendation did she learn the gravity of her condition. The surgeon was able to confirm the presence of cancer after only a brief examination because the skin in the area of the lump had a dimpling effect resembling the skin of an orange when it was palpated in a certain manner. Owing to the advanced nature of the cancer, a lumpectomy rather than a mastectomy was later performed. Following surgery, the woman was placed on a regimen of hormonal therapy and later chemotherapy.
The gynecologist’s expert evidence consisting of the testimony of a specialist in obstetrics and gynecology, and a pathologist, was presented to refute the allegations of medical malpractice. The accused parties’ experts were consistent in their opinion that although the lesion which was palpated in September 1982 was in the same location as the tumor removed in September 1983 the former did not lead to the latter. The basis for the opinion was the theory of doubling times which refers to the growth rate of tumors. According to the doubling times concept of oncology, a tumorous mass hypothetically doubles in size every 60 days. If the theory were followed in its strictest sense, the woman’s September 1983 tumor would not have been palpable in September 1982. However, the accused parties’ experts agreed that studies measuring the growth rate in the human breast as opposed to the laboratory have shown doubling times ranging from 20 to 209 days. The gynecologist expert also conceded that the failure to take any measures following the discovery of a lesion in the woman’s breast in September 1982 would have been a departure from accepted medical practice. His opinion that the woman’s gynecologist had acted in accordance with accepted medical standards in the community stemmed from his rejection of the woman’s statements that her gynecologist did not tell her about the lump.

With due deference to the jury’s determination based upon its opportunity to observe and hear the witnesses, and weighing the conflicting testimony of the parties and their respective experts, we cannot say that the evidence so preponderant in favor of the gynecologist that the jury could not have reached their conclusion upon any fair interpretation of the evidence. Viewing the entire body of evidence, it was entirely plausible for the jury to conclude that the lesion noted in the woman’s medical record in 1982 developed into the malignant tumor removed in 1983 and to find that the gynecologist was negligent in failing to order tests or to follow up his initial examination to check the condition of the lump. The total verdict reflected a thoughtful evaluation of the evidence and not merely a determination, as the gynecologist suggest, which reflected an overriding sympathy for the woman’s infant daughter. Therefore, the verdict as to liability must stand.
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Medical malpractice lawsuits can be sought for many different reasons. Some of them involve birth injury, and some, like the present case involve the care of the elderly. Elderly care homes in New York are governed by many laws, the application of these laws can differ depending on the court system. When a party to a case feels that the rights of one of the parties has been violated, or the laws in the case have been misapplied, it becomes the job of the Supreme Court to evaluate the outcome and decide if the case needs to be reviewed.

In February of 2009, an elderly woman from Queens was living as a long term patient of a nursing home in Rochester, New York. One of the issues that placed her in the care of the home involved a bladder problem. This woman was unable to void her bladder without the assistance of a catheter. Therefore, every day, she had to wait on one of the staff of the home to come and help her to urinate. One night, the staff member failed to come to the aid of the woman. She was desperate for relief and decided that she would exit her bed by herself and attempt to go to the bathroom. When she stood up from her bed, her bladder released causing a puddle on the floor of her room near her bed. She slipped in the puddle and suffered from severe injuries including broken bones. She was not treated for her injuries until her son in law arrived several days later. Her son in law is a doctor. When she told him about the injury and that she was in horrible pain from it, he had her transported by ambulance to the hospital. It was only at that time, that the extent of her injuries were revealed. Her family was distraught that their mother had not received the minimum standard of care that was expected. They filed a medical malpractice lawsuit in her behalf. They used as a standard for their contentions that the public health laws had been violated a case that involved another patient of a long term care nursing facility.

This woman was a young woman who was in a persistent vegetative state. The case is referred to as Doe. The reason that her mother filed a lawsuit alleging violations of the public health laws was that her daughter had been injured in an automobile accident. She was in a persistent vegetative state when it became apparent that she was pregnant. Since she had been a resident of a long term home for more than a year at that point, it was obvious that she had been raped while in their care. She delivered a baby boy by caesarian section. DNA evidence was used to determine which employee of the facility had raped her. Her mother’s contention was that her daughter did not receive the minimum standard of care for a patient in her condition as evidenced by the fact that one of the staff had raped and impregnated her. She proved her point and won her lawsuit. The case is now used as a precedent for nursing home violations. The public health law was instituted to prevent the types of abuses that were evidenced in the current case and the case of Doe. In order to insure that our loved ones who by necessity are bedridden and in a long term home facility, laws that govern insufficient care are important. Nursing homes in Staten Island must be accountable for any abuse or neglect that may occur on their property. However, because the laws are so complicated as they relate to nursing home abuse, it is important for anyone who believes that their loved one has been treated inappropriately to contact an attorney.
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