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

Case Background
The plaintiff is a home builder and in 1999 he started negotiations for the purchase of a home that he was building. For the negotiations he retained the defendants to represent him. In January of 2000, the plaintiff was ready to sign a contract of sale as well as a separate basement construction agreement. This contract had been forwarded to the defendant’s offices. The plaintiff executed the basement construction agreement, but then discovered that the buyers had not signed the attached contract of sale. This contract included additional terms that were not previously agreed to in the parties’ negotiations. As a consequence the plaintiff did not sign the contract of sale and told the defendant’s that the deal with the buyers was off and to proceed accordingly.

The defendants received a copy of the contract of sale from the buyers, but at this point the plaintiff was no longer interested in proceeding. In March of 2000, the defendants sent a package of documents that included the signed basement construction agreement and the contract of sale signed by the buyers, but not signed by the plaintiff.

The buyers then started an action against the plaintiff and defendants for performance of the contract of sale. The plaintiff retained a new law firm to represent him in that underlying action. The other law firm successfully moved to dismiss the complaint in the underlying action. However, this motion was reversed on appeal and specific performance was awarded to the buyers.

While the underlying action was still pending the plaintiff started this legal malpractice suit against the defendants. The legal malpractice case was dismissed as premature, but the plaintiff was given leave to start a second action should the buyers be awarded damages in the underlying action. The plaintiff is now seeking to recover damages from the defendants.

Court Decision
The court is granting the application to leave for appeal for the portion of the order that directed the dismissal of the complaint against the defendants. The original order from the Supreme Court of Westchester County is modified by deleting the portion of the order that denied the motion by the plaintiff for summary judgment on the issue of liability against the defendants and substituting a provision that grants that branch of the motion. A bill of costs is awarded to the plaintiff and will be paid by the defendants.
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The plaintiff is appealing orders from the Supreme Court of New York County that denied their motions for summary judgment in regard to liability.

Case Background
The record in this case shows that the defendant obtained malpractice insurance coverage from the plaintiff. The defendant made an effort to limit the amount of the premium to be paid to $165,000. However, it is clear that the plaintiff advised the defendant that the amount of premium to be charged would depend on information that was to be supplied by the defendant and the rates would be established by the Superintendent of Insurance.

The defendants in each case applied for insurance coverage and this coverage was supplied by the plaintiff.

Court Decision
The order from the Supreme Court of New York County that was entered in January of 1978 in favor of the first defendant hospital is reversed. The order denied the plaintiff’s motion for summary judgment. The motion for summary judgment on the issue of liability is granted.
The order that was made on the same date in the same court for the second defendant hospital that denied the motion for summary judgment for the plaintiff is reversed. The plaintiff’s motion for summary judgment is granted on the issue of liability. The counterclaims made by the defendant are dismissed. The case will be remitted for trial on the issue of damages.
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This is a case being heard in the Supreme Court of the State of New York located in New York County. The case involves three separate motions that have been consolidated for disposition. In the motion sequence numbered 002, the plaintiff is moving for summary judgment on the claims for an account stated against defendants in the amounts of $354,463.82 and $100,000 plus interest and dismissing the counterclaims of defendants.

In the motion sequence 003, the third party defendant has moved to dismiss the third party complaint on the ground that the court lacks jurisdiction over their firm or in the alternative that the third party action be stayed on the ground of a valid agreement to arbitrate. The third party defendants have also moved to dismiss the first, second and fifth causes of action in the complaint for failing to state a claim for relief.

In the motion sequence 004 the other third party defendant of the case has moved to dismiss the third party complaint against them and for sanctions against the defendant and third party plaintiffs.

The overall action is to recover legal fees. The defendants are the former clients of the plaintiffs and the third party defendant law firms. Claims of legal malpractice and other tortious conduct on the part of the formal counsel have been asserted.

Court Discussion and Decision
The plaintiff in the case has established prima facie against the third party defendant for an account stated. The plaintiff has shown that the defendant provided in writing that it had received the bills and owed $254,035.76 for services that had been provided to them. There was also provided in writing that the defendant owed an additional $100,000 for services that were rendered to date. Between January and August of 2004, eight additional bills were received. The defendants retained these bills and made partial payments.

The court is granting a partial summary judgment in the amount of $354,463.82 plus interest as written on the final invoice.

The counterclaims by the defendant alleging malpractice have been reviewed. In order for a claim of malpractice to be properly pleaded the plaintiff must show that the attorney was negligent, that the negligent was a proximate cause of the plaintiff’s losses, and proof of actual damages.

After reviewing all of the facts in this case the court has ordered the following:
The plaintiff’s motion for summary judgment will be granted in part and denied in part. The partial summary judgment for the plaintiff in its third cause of action for an account stated against the defendant an immediate judgment in favor of the plaintiff will be granted. The first counterclaim against the plaintiff for legal malpractice is dismissed. The third party complaint is dismissed. The portion of the third party defendant for costs and sanctions against the defendants is granted.
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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 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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The Bronx appellant in this case is appealing by permission an order that denied his motion to vacate a finding of liability made by a medical malpractice panel. There are five main issues to consider on this appeal.

First, the court must consider whether an order that denies a motion to vacate a medical malpractice panel’s finding is appealable in this court.

Second, if the doctor member of the medical malpractice panel must be a specialist that practices in the same field of medicine as the defendant doctor who the malpractice is claimed.

Third, if the medical malpractice panel’s finding in this case is legally insufficient to a finding of liability.

Fourth, whether the medical malpractice panel’s finding should be vacated because the medical panelist failed to disclose that he and one of the codefendant doctors both attended the University of Geneva in Switzerland and are members of the same county wide medical society.

Finally, if the court’s amendments of the rules that regulate medical malpractice panels are retroactive in application and applicable in this case and if they are retroactively applicable if these factors mandate the vacatur of the panel’s finding of liability as to the appellant.

Case Facts
The original medical malpractice action was against the appellant who is a pediatrician and three other doctors who are all obstetricians and the hospital. The plaintiff was seeking damages in the amount of over $5,000,000 for the defendant’s alleged negligence that caused the infant plaintiff to suffer from severe and irreparable damage to his brain and central nervous system. These damages have crippled the infant plaintiff for the rest of his life.

The Clerk of the Supreme Court of Suffolk County issued a letter to the respective counsel to submit pleadings, bills of particulars, and medical and hospital reports. This would then be turned over to the Suffolk County Medical Society for review.

The doctor members of the medical malpractice panel and the attorneys were then identified and told that any objections should be made to the court within five days. There were no objections made and a hearing was held in front of the medical malpractice panel. One of the members of the panel was an obstetrician who the Suffolk County Medical Society had found.
The panel found the appellant liable in the case stating that he had departed from the accepted practices and procedures on his part in the care and treatment that was provided to the infant including his examination of the infant plaintiff and the discharge of the infant from the hospital.

There were no findings made against the defendant obstetricians.

The counsel for the appellant requested that the finding of liability be vacated because the Dr. on the board was an obstetrician and therefor an inappropriate party to review the actions of the appellant and that the doctor had failed to disclose his relationship with one of the defendant obstetricians.

Court Discussion and Decision
In regard to the appellant’s argument that the order should be vacated on account that the doctor representative on the board is an obstetrician and not a pediatrician, the court finds that this fact does not deprive him of a peer review. The issue of disclosure of the doctor’s relationship with another defendant is also not enough evidence to support vacatur. The other issues brought up in this case are found to be insufficient to support the finding of the panel to be vacated and for this reason the appeal is denied.
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The case before the court is one of legal malpractice. The Bronx plaintiff had a bi-lateral mastectomy, which she claims was the result of being misdiagnosed. The plaintiffs are seeking a judgment against the defendants for negligently prosecuting a medical malpractice action on behalf of the plaintiff.

Case Background
In March of 2006, the law firm defendants filed a motion to have the complaint against them dismissed. In October of 2006 the court issued an interim order that directed all of the parties to provide a briefing on the issue of the bankrupt extension. The court reviewed the briefs and heard oral arguments. The court then made the decision to deny the dismissal of the complaint.

In February of 2007, the plaintiffs amended their complaint to add an associate of the legal defendants. The defendants filed a motion to have this complaint dismissed arguing that the complaint is time barred, that the plaintiffs do not have standing to invoke the bankruptcy extension, and that the plaintiffs failed to sufficiently plead fraudulent concealment.

Court Discussion and Decision
The main legal issue in this particular case is whether the Brooklyn defendants have demonstrated as a matter of law that even if they had raised a two year extension in the medical malpractice suit the suit would still have been time barred.

In this particular case, the court finds that the defendants have failed to meet the burden of showing that their failure to assert the bankruptcy tolling of the statute of limitations in the medical malpractice suit could not have deprived the plaintiffs of a judgment in their favor.
For this reason, the court is denying the motion to dismiss the amended complaint. The ruling is in favor of the plaintiffs.
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This is an instant action brought forth by the plaintiff for herself, her deceased husband, and her four children. The case involves personal injury claims that arise from a car accident and medical malpractice claims in regard to the treatment that her husband received at the defendant hospital for the injuries that he sustained during the car accident.

Prior to this action the Bronx driver of the other vehicle that was involved in the accident began this own action for personal injuries that he sustained during the accident.

The plaintiffs have moved to consolidate both actions for a joint trial. The defendants in the second action have opposed stating that consolidating the actions will result in undue prejudice and jury confusion. In addition, the defendants in the second action have moved to sever the causes of action that pertain to the car accident and those actions that pertain to the medical malpractice action. The defendant is also seeking to have the venue moved to Albany County where the treatment was provided.

Case Background
The Brooklyn plaintiff’s decedent was in a car accident that resulted in serious injuries to himself, his wife, and their four children. According to the plaintiffs they were driving on Route 23 in Green County when their car was hit by the defendant driver. After the accident the decedent was taken to Columbia Memorial Hospital and was then transported to the defendant hospital.
On the day after the accident the decedent underwent surgery for his injuries on his right foot, knee, and leg. He suffered from complications after the surgery, allegedly related to the respiratory treatment and anesthesia and passed away.

The driver of the other vehicle sustained injuries as well and contends the accident was the fault of the decedent. He started an action on the 8th of February, 2010 for the injuries that he allegedly sustained during the accident. The family of the decedent started the instant personal injury and medical malpractice action against the driver of the other vehicle and various medical providers in August of 2010.

The issues before the court are whether this action involving the personal injuries suffered by the family of the decedent and the medical malpractice of the medical personnel defendants should be consolidated with the action that was commenced by the driver of the other vehicle for the injuries that he sustained during the accident, whether the alleged medical malpractice case should be severed from the causes of action that pertain to the car accident, and if the venue of New York County is appropriate.

Case Discussion and Decision
The plaintiffs contend that the two actions regarding the accident should be combined because they both stem from the same car accident and therefor contain common issues of law. The driver of the second vehicle argues that because of the medical malpractice claims these should not be combined because the issues in the decedent’s family case are more complex.

After reviewing the facts of the case, the motion to combine the cases is granted. Holding separate trials in this matter would result in conflicting results. In addition, the medical malpractice claims will not be severed and will be heard by the same jury. The court also finds that the venue of New York County is appropriate as it is the county where the defendant driver resides. The venue will remain the same.
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