Articles Posted in Suffolk County

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The defendants have moved for an order to amend the caption that recently appointed the plaintiff as the administrator of the estate and upon the amendment to have the complaint against them dismissed.

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

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

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

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

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

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

The wrongful death claim made against the other hospital defendant is dismissed in its entirety as well as any of the medical malpractice claims that occurred before the third of March, 2006. These complaints are deemed to be time barred.
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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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This is an action to recover damages for fraud. The New York City plaintiffs are appealing an order made by the Supreme Court of Suffolk County that granted the defendant’s motion for summary judgment dismissing the complaint against them.

Case Background

The plaintiffs in this case are an infant and his father. In 1987, the plaintiffs settled a medical malpractice action against an insured of the respondent in this case. The settlement included an annuity that would provide payments to the infant plaintiff in the sum of $3000 per month for life. The respondent estimated the present value of the entire settlement package to be $940,180.

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

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

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

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

Case Discussion and Decision
The Suffolk defendants in this case have made their point about not being liable for what the Dental Center owed for premiums. For this reason, the court is granting the appeal in favor of the defendants and the previous order is reversed. The case will be remitted to the Supreme Court for further proceedings.
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The complainant Nassau man went to the emergency room of a hospital complaining of weakness in his lower extremities and severe lower back pain. He had gone to the emergency room five days earlier complaining of left hip and back pain, and was sent home with pain medication. The pain persisted, and he began experiencing weakness in his legs, twice falling or nearly falling when his legs buckled. He was able to walk, though with difficulty. During his emergency room visit, radiographic tests, including a myelogram, were ordered, and the man was admitted to the hospital.

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

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

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

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

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

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

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

The evidence before the trial court showed the man was ambulatory before entering the hospital, though he was experiencing weakness in his legs and severe lumbar back pain. More than twelve hours after undergoing the myelogram, the man discovered he was still numb from his hips down and his legs were paralyzed. Although medical staff told him the numbness and paralysis were caused by the anesthetic which had not worn off, he reasonably suspected something was amiss because, in his experience, anesthetic effects dissipate in four to five hours. The man’s paralysis following the myelogram was sufficient to communicate the possibility of medical negligence. Therefore, the two-year statute of limitations began to run on or about 26 June 1994. As such, service of the notice of intent on 3 January 1997 occurred beyond the limitations period, and the man’s medical malpractice action against the accused is barred.
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This is a claim for medical malpractice against the state city health and hospitals corporation brought by a mother, individually and on behalf of her son. The infant was born at one Nassau hospital and allege that the infant sustained meconium aspiration syndrome and hypertonia as a result of the hospital’s mismanagement of the labor and delivery. Though the infant was transferred to another hospital and stayed for almost two weeks, he was then transferred back with the previous hospital where he received continuous treatment. It is also alleged that the infant suffers from brain injury and severe developmental delays.

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

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

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

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

As the facts documented in the chart would not place the opponent on notice of a claim and the application is denied. Merely asserting that because the infant suffered a difficult neonatal course, the opponent was on notice of a malpractice claim is rejected. To prevail on the application, the complainant must establish that the hospital corporation had notice that the hospital departed from the standard of care in treating the infant, and that those departures caused the infant’s injuries. As a result, the complainants have not established those elements and their application are denied.
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This case is being heard in the Supreme Court of Nassau County. The plaintiffs of the case are seeking to recover damages for medical malpractice. The plaintiffs allege that as a result of the negligence of the defendants the infant plaintiff suffered from fetal complications including oxygen deprivation that caused brain damage and resulting complications.

Case background

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

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

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

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

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

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

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

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

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

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

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

The Issues:

Was the dismissal by the Appellate Division proper?

The Ruling:

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

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

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

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

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

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

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

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

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

The Issues:

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

The Ruling:

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

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

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