Articles Posted in Neurological Malpractice

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The case before the court is an action for malpractice. This case is being heard by the Supreme Court of the State of New York located in Nassau County. The plaintiff in the case retained the defendant attorney to represent her during her divorce proceeding against her now ex-husband. The matrimonial action was settled towards the end of 2003 with the judgment of divorce being entered on the 27th of February, 2004. The defendant states that the judgment of divorce ended the matrimonial action and her representation of the plaintiff in the matrimonial action.

Case Background
In October of 2006, the plaintiff’s ex-husband passed away. In April of 2007, the plaintiff was named as a defendant in an insurance action that took place in the New York County Supreme Court. The insurance action was started by the executor of her ex-husband’s estate. The insurance company was named as a co-defendant in the case. The defendant of this case asserts that all causes of action in the insurance action were in regard to the changes of beneficiary designation on the life insurance policy made by the plaintiff’s ex-husband.
In May of 2007, the plaintiff obtained the defendant attorney to represent her in the insurance action under a new retainer agreement. The insurance action was to determine who would be the beneficiary of the life insurance policy. The action was eventually settled with the insurance proceeds being divided between the parties. The plaintiff was to receive $290,360.25.
The defendant states that after the settlement in the insurance action there was an issue regarding the outstanding legal fees owed by the plaintiff. The defendant brought suit for payment of the legal fees and then the plaintiff began this legal malpractice suit.
The plaintiff’s complaint alleges that the defendant committed legal malpractice in the previous matrimonial action. The defendant argues that the malpractice action is barred by the three year statute of limitations, which started to run after the divorce settlement on the 27th of February, 2004. The complaint in this matter was not filed until January of 2011, which is past the expiration of the statute of limitations.

The defendant further argues that the plaintiff has failed to properly plead a cause of action for legal malpractice.

The plaintiff opposes the motion to dismiss stating that the defendant failed to properly draft the divorce agreement, failed to properly advice the plaintiff in regard to the legal consequences of certain provisions of the divorce agreement, and that the insurance action was a result of legal malpractice of the defendant. The plaintiff argues that she should have been the sole beneficiary of the life insurance policy to cover the remaining spousal support payments.

Court Discussion and Decision
When reviewing the facts of the case the court finds that the issue at hand is time barred by the statute of limitations. The issue was not raised until well after the three year time period had passed. In addition, the plaintiff has failed to state a cause of action in regard to the legal malpractice action. For this reason, the court finds in favor of the defendant and the complaint is dismissed.
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An action to recover damages for medical malpractice was filed. The defendant was found by the court, on the issue of liability, to be 75% at fault and the plaintiff 25% at fault in the causation of the plaintiff’s injuries; and, on the issue of damages, that the plaintiff sustained damages in the sums of $150,000 for past mental distress, $50,000 for future mental distress, and $134,000 for loss of past financial support, and awarded the plaintiff the sum of $166,000 in punitive damages.

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

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

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

In sum, the defendant undoubtedly committed medical malpractice by having a sexual relationship with the plaintiff, even where the plaintiff knew that the sexual relationship was not in furtherance or a part of the medical treatment; the jury’s determination to award punitive damages was justified; the evidence established that the defendant’s departure from the standard of care predictably and inevitably damaged the plaintiff in those areas for which she sought treatment and was most vulnerable; over the prolonged period during which the defendant departed from the applicable standard of care, the defendant’s reprehensible conduct evinced a gross indifference to his patient’s well-being; the Court properly denied the defendant’s midtrial application to preclude evidence of certain special damages, inasmuch as, among other things, that application was untimely; and, the jury’s award did not deviate materially from what would be reasonable compensation. The court finds the parties’ remaining contentions without merit. Accordingly, the judgment is affirmed.
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The University of Miami has been trying to protect its doctors from malpractice suits for years. They finally managed to do this explained a well-known Medical MalpracticeLawyer. Florida lawmakers have agreed to extend the lawsuit protection to university doctors when they are working in a public hospital.

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

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

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

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

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

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

The senate voted to make sure that the expert witnesses which can be called are chosen and regulated by the state. This puts restrictions on using out of state experts as was common with almost all medical malpractice cases claims the Lawyer.
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A bill in North Carolina’s Senate may send shockwaves throughout the medical community in the state, believes a doctor. The bill, which would limit all Medical Malpractice verdicts to $250,000 for non-economical damages, has some strong supporters and some equally strong opposition. A non-economical damage is described as pain, suffering or emotional distress. Neurological cases can also be considered in this context.

The bills co-sponsor stated that the proposal aims to reduce the practice of defensive medicine. Defensive medicine supposedly adds 20 to 25 percent to the cost of health care. He also states that the main goal of the bill is to keep medical professionals in North Carolina and to make sure that citizens can still receive quality healthcare, stated a source.

Critics of the bill range from patient advocates to trial lawyers. North Carolina Coalition for Patient Safety’s executive director disagreed with the bills co-sponsor, saying it wouldn’t really do anything to bring down medical costs, or to keep them from rising in the future. She went on to say that the government doesn’t seem to focus on the cause of the rising medical costs, but merely want to focus on the symptoms. In The Bronx and Brooklyn, doctors are taking note in the hopes that this kind of legislation does not come north.

According to a study, the proposed bill may succeed in bringing down the amount of medical malpractice lawsuits filed, but only because lawyers would be reluctant to take on the cases of young children or unemployed patients because of the risk of not being paid if the case is not successful. This breach could cause people to go unjustified in their cases.
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