Articles Posted in Hospital Malpratice

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The plaintiff asserts that while he was a patient at the defendant hospital he was attacked and hit by another patient at the hospital who allegedly is known to possess violent and dangerous propensities. The patient claims that the hospital and its employees were negligent in permitting a known violent patient to be present around other patients.

Case Discussion
A compliance conference was held regarding the case and an issue arose as to whether or not a medical malpractice panel hearing should be conducted. The issue was made formal during the conference and the plaintiff is now moving for an order to dispense with the medical malpractice panel hearing on the grounds that within the cause of action is for negligence rather than medical malpractice.

In opposition to the motion the defendants argue that the crux of the plaintiffs claim is that the defendant hospital failed to diagnose the assailant’s violent and dangerous propensities and failed to take the appropriate steps to treat the dangerous propensities so that the assault on the plaintiff could have been avoided. This information involves a claim of medical malpractice and not simple negligence and because of this should be the subject of a panel hearing. The defendant further argues that at a pre-calendar conference a medical malpractice preference was obtained by the plaintiff which indicates that a medical malpractice panel is warranted.

Court Decision
The contention that the medical malpractice preference was obtained by the plaintiff at the pre-calendar conference is found to be without merit since it is apparent that the issues being raised in this court have not been raised previously.

The issue before the court is whether or not an action that is brought forth by a patient of a hospital against the hospital because of the behavior of another patient in the hospital should be deemed a medical malpractice action so that it falls within the medical malpractice requirement.

In this case the plaintiff alleges a breach of duty by the hospital in the failure of the defendant to adequately restrain, supervise, and exercise care for his safety. The plaintiff alleges a cause of action for common law negligence and not for medical malpractice.

When considering the facts of this particular case the plaintiff is not suing the hospital based on the care provided to the plaintiff by the personnel of the hospital, but rather for what the hospital failed to do in treating the third person. When considered in this way it is seen to impose liability upon the hospital because the plaintiff was harmed by the alleged negligent care given to a non-party.

After careful consideration the court finds that this is a matter of general negligence and for that reason it should not be sent to a malpractice panel. The motion made by the plaintiff is granted and the case will be listed as a general negligence issue.
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Respondent was born with Down syndrome in 1964 and began receiving medical assistance under the State Medicaid plan on July 1, 1992. On July 14, 1997, he suffered an injury during corrective spinal injury surgery, which resulted in his partial paralysis such that he was no longer able to ambulate. A Lawyer said that, a medical malpractice action was commenced by respondent’s sister on his behalf against the hospital where the surgery was performed and several Long Island doctors. Respondent continued to receive medical assistance from the DSS, and the DSS filed a lien pursuant to Social Services Law § 104-b (hereinafter the Medicaid lien) for recovery from any award made in the medical malpractice action, for such assistance for which the third-party tortfeasor was found to be liable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accordingly, the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the DSS which was for reimbursement of the amount of medical assistance provided by Medicaid to respondent from August 24, 2002 through September 22, 2003, and substituting therefore a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of medical assistance provided by Medicaid to respondent from August 24, 2002 through September 22, 2003 that was not previously reimbursed, and for entry of an appropriate judgment.
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The defendant in this case is appealing an order that was made by the Supreme Court of Nassau County. The order directed the defendant to comply with a request for information prior to a hearing for medical malpractice.

Case Background
The plaintiff in the case alleges that she was a patient at the Westchester defendant hospital that had been notified by her personal physician that she was unable to go to the bathroom without help. She states that a nurse that worked at the hospital allowed her to go to the bathroom without help in order to provide a urine specimen. While the plaintiff was walking to the bathroom she fell down and suffered from serious injuries which included a broken hip.

Case for Appeal
The only issue that is raised on appeal in this court is whether or not the defendant has to be present at a hearing before a medical malpractice panel. The alleged malpractice suit is against a nurse that is employed by the defendant hospital.

Case Discussion
Until recently the law stated that a nurse could not be liable for a medical malpractice act. However, the new trend is that a medical malpractice panel be required when a hospital is named as a defendant, such as in this case. The recent cases have found that this type of panel must be conducted even if the malpractice case is alleged against a nurse or an emergency room attendant. For this reason, it is now assumed that a nurse can commit malpractice.
In this case, it is not alleged that the nurse did an act that is related to a medical diagnosis or that is within the expertise of a malpractice panel, she simply failed to follow an order from a physician.

Court Decision
After reviewing the facts of the case, it is determined that a nurse can commit medical malpractice and the alleged claims in this case set for a colorable claim. For this reason, the defendant hospital must appear before the medical malpractice panel. The original ruling of the Supreme Court of Nassau County is affirmed and the appeal by the defendant is denied.
Three of the four judges hearing this case concur with the decision and one justice dissents, voting to have the order reversed and holds that the defendant is not required to appear before the medical malpractice panel.

The dissenting judge states that while a nurse can be referred to a medical malpractice panel it is his opinion that the bill of particulars and pleadings must reveal that the plaintiff is making a claim that the nurse was performing specific duties that call for special training and talents. In this case the nurse simply handed the plaintiff a cup and asked for a urine specimen and then left the room, leaving the plaintiff to go to the bathroom without assistance. This is not a malpractice case, but one of simple negligence and should be carried forward as such.
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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 Staten Island plaintiff in this case is appealing an order made in the Supreme Court of Kings County. The order that is being appealed by the plaintiff denied his motion for summary judgment and granted summary judgment to the defendant dismissing the complaint as made against the defendant. The entire case stems from an underlying medical malpractice suit.

Court Discussion
Under the plain language of the insurance policy in question the plaintiff is not covered for contractual liability that was assumed by entering into service agreements with the independent contractors in the case. However, the plaintiff could have been held vicariously liable for the actions of the independent contractors and for that reason the plaintiff is entitled to recover his legal costs for defending against his own liability.

Court Decision
The court is modifying the original order that was made in the Supreme Court of Brooklyn. The provision of the order that granted summary judgment to the defendant to dismiss the complaint to recover legal costs incurred for defending the plaintiff’s liability in the medical malpractice action is deleted.

The provision of the order that denied the branch of the plaintiff’s motion for summary judgment for the claim for legal costs is deleted and in its place there is a provision granting this motion. The matter will be remitted to the Supreme Court of Kings County to determine the amount of legal costs that will be awarded to the plaintiff.
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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 malpractice case was filed against defendant more than nine year’s after plaintiff’s birth. Accordingly, the medical malpractice was allegedly committed by defendant in connection with the birth of plaintiff on November 2, 1996, from pre-natal care up to his discharge from the hospital on November 9, 1996. Consequently, plaintiff sustained perinatal asphyxia affecting his brain which manifested as cognitive developmental delays, hyperactivity, coordination difficulties, seizures and mental retardation.

A condition precedent to commencement of a tort action against a municipality or public corporation is the service of a notice of claim upon the municipality or public entity within 90 days after the claim arises. The notice of claim herein was served upon defendant almost nine years past the ninety-day deadline for filing a notice of claim.

The Court has the discretionary authority to allow the filing of a late notice of claim within the period of limitation for commencing tort actions against a municipality. An action against a municipality or municipal corporation or entity must be commenced within one year and 90 days after the date plaintiff’s cause of action accrued, which is the date the event occurred upon which plaintiff’s claim is based. Where plaintiff is an infant, the statute of limitations on a medical malpractice action is tolled for a period not exceeding 10 years from the date the cause of action accrued.

In the exercise of its discretionary power to allow a late notice of claim, the Court is directed by General Municipal Law § 50-e(5) to consider, in particular, whether the municipality or municipal entity acquired actual knowledge of the facts underlying the claim within the initial 90-day period or within a reasonable time thereafter. The Court must also consider “all other relevant facts and circumstances”, including infancy and whether the delay would cause substantial prejudice to the municipality or public entity.

Although the hospital records clearly show that plaintiff had suffered respiratory distress when he was born, there is nothing in those records submitted on this motion that indicate that plaintiff suffered any of the injuries alleged so as to constitute notice to defendant of the facts upon which the claim is based. The records reveal no indication that plaintiff either at the time of his discharge or upon follow-up visits to Elmhurst Hospital showed signs of brain damage or other impairment. Moreover, neither the hospital records nor the affirmations of plaintiff’s physicians indicate that perinatal asphyxia necessarily results in brain damage that subsequently manifests itself in cognitive and developmental disorders or hyperactivity.

Plaintiff’s physicians found cognitive/educational and motor coordination delays but no positive diagnosis of ADHD, mental retardation or seizures. Also, there is no finding of any brain injury. Therefore, the conclusions in the reports that plaintiff’s injuries were caused by perinatal asphyxia are speculative. There is no medical evidence of injury and the reports of plaintiff’s examining physicians did not find a causal connection between plaintiff’s observed delays and his respiratory distress at birth.

Actual knowledge based upon hospital records may not be found absent a clear showing of a nexus between the alleged malpractice and the injuries. Although the affidavits of plaintiff’s physicians opine, nine years after the fact, that plaintiff’s developmental, behavioral and cognitive disorders were the result of asphyxia caused by malpractice in his delivery, there is no showing that defendant derived actual knowledge of such facts within 90 days after plaintiff’s birth or a reasonable time thereafter by virtue of their possession of the hospital records, since these records do not show that plaintiff sustained any developmental, behavioral or cognitive damage as a result of asphyxia.

Indeed, plaintiff’s own examining physicians, with knowledge that plaintiff was born in a state of respiratory depression and was diagnosed with perinatal asphyxia, did not ascribe a causal connection between such perinatal asphyxia and his delays. If it was not obvious to plaintiff’s own examining physicians in 2000 and 2004 that plaintiff’s perinatal asphyxia was a potential cause of his delays and possible ADHD, it would certainly be unreasonable to conclude that the hospital, at the time of his birth in 1996, had actual knowledge that his perinatal asphyxia would likely cause his subsequent alleged injuries.

Plaintiff failed to establish that defendant had actual knowledge of the facts underlying the claim within 90 days after plaintiff’s delivery or a reasonable time thereafter.

Under the totality of the circumstances, it would be an improvident exercise of this Court’s discretion to allow the filing of a notice of claim at this late juncture.
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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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When a family member dies, it is a heartbreaking time for the rest of the family. That is made especially true if they are not permitted to honor the memory of their loved one in accordance with their traditions and religious beliefs. In the case of New York, there are laws that are in place to ensure that when a loved one dies, they are placed in a situation that will ensure that every effort is made to locate the next of kin and return the body to them for burial. These laws refer to sepulcher. Sepulcher is the right of a family to inter their kin in the manner that they deem appropriate. It is a recognized right in the state of New York, but that is not the way that it was always done.

In the early 1800’s, medical schools and body snatchers ran amuck in the city of New York. Many families were faced with the loss of the body of a loved one. There was a demand for the legislature to create laws that made it illegal for a person to steal a body or otherwise interfere with the right of a family to possess the body of their loved one. The legislature was faced with a problem about how to word such a fundamental right. The question arose as to whether the theft of a body was a theft of property that belonged to the family. Initially, the laws were worded to reflect the body as the property of a family. However, as laws usually do, they evolved over the years so that the right of sepulcher for a family to possess the body of a loved one was viewed more as a violation of a right to seek the solace of the ritual of a burial than it was a question of a theft of property. That evolution caused a new factor to be raised as it regarded the loss of bodies in morgues throughout the state. The right of sepulcher became an issue of the emotional distress that is caused to a loved one when the body of their family member is not immediately available to them. It is from this evolution of legal statute that the present case came into existence.

On October 28, 2001, a famous playwright , Leonard Melfi died. He was famous for writing the one-act play the Birdbath and he was instrumental in the writing of the Broadway hit play, Oh: Calcutta! He had been a resident of a welfare hotel on the upper west side of Manhattan called the Narragansett Hotel at the time that he collapsed. The Emergency Medical Services personnel filed a report of their interactions at the scene of Mr. Melfi’s collapse. Their report stated that the famous author was in respiratory distress at the time of their arrival. They recorded his address, date of birth, social security number and his next of kin with her phone number on their report. Mr. Melfi was transported to Mt. Sinai Hospital where another report, this one by the emergency room patient registration team was filled out with the same information. The triage report that was filled out on Mr. Melfi only showed that he was fitted with an oxygen mask and that no further treatment was administered to him. The attending physician in the emergency room diagnosed Mr. Melfi with congestive heart failure and atrial fibrillation. He prescribed a drug to slow Mr. Melfi’s heart rate, but again, the record does not show that any other treatment regimen was provided to him. The billing statement of the hospital showed that Mr. Melfi was treated by nurses who did a pulse oximetry, catheter placement, and electrocardiogram, but there is no report of these actions being taken in the patient’s care records.

What is clear is that minus the addition of further treatment protocols, Mr. Melfi’s condition deteriorated quickly and that he stopped breathing and was unresponsive. The records do not reflect that any attempt was made to resuscitate Mr. Melfi once his life signs ceased. He was pronounced dead at 6:20 P.M. that night.

The death certificate that was prepared in the hospital included his name and age, but did not have any of the additional information that had been on the EMS or emergency room reports regarding his social security number and next of kin. The emergency room doctor later stated that he had personally attempted to telephone the next of kin two times that night without success.

The policy of the hospital when a person dies in their care is for the emergency room doctor to make two attempts to contact the next of kin. Then the doctor hands off the case to the nursing supervisor who will make attempts to contact the next of kin that includes telephoning them, sending a police officer to the address, and sending a telegraph to the address. If there is no contact, the nursing supervisor is supposed to contact the police department to follow up on the death and locate the next of kin. There is no record in Mr. Melfi’s case that any of this was done. In spite of the testimony from the doctor that he made two phone calls, there is no documentation showing that these calls were ever made.

Mr. Melfi’s body was in the morgue at Mount Sinai Hospital for one month. On November 21, 2001, when the death certificate was filed with the New York City Department of Health, a burial permit was issued within ten days. He was then transferred to the city morgue at Bellevue Hospital where according to the record, no one there made any attempt to locate his next of kin. This is true in spite of the fact that the city morgue has in place a policy to do an investigation into the location of the next of kin of a subject who arrives in their care. However between the time that he was transferred to the city morgue on November 28, and December 20, 2001, his body was loaned to the Nassau Community College’s Mortuary Science Department where it was used for practice by the mortuary science students.

On December 20, 2001, his body was taken to the City Cemetery on Hart Island commonly referred to as “Potter’s Field.” He was buried in a mass grave with 150 other unclaimed bodies until two months later when his niece was contacted by his landlord. His niece who is a New York State Trooper contacted her father and informed him that she had been notified by the landlord of Mr. Melfi that he had passed. She was contacted by the landlord because she had met him on her visit with her uncle just one week before he died.

The family, in distress contacted the hospital and eventually located the burial site and had Mr. Melfi’s body exhumed for proper burial in their family plot. They filed a lawsuit for loss of sepulcher.
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The standard of healthcare in some of Yorkshires best hospitals and clinics has been called into question. This problem has become so serious that it is costing taxpayers over £150 per minute. Almost a third of this money will go directly to lawyers.

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

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

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

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

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

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

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

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

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

Medical malpractice lawsuits are a major problem around the world. While they do help many people, many other people are wondering whether they are negatively affecting health care in the country.
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