Protecting Yourself from Liability as a Healthcare Provider During COVID

The coronavirus pandemic has been terrifying for almost everyone, but doubly so for healthcare providers, who have a higher risk of being exposed to the virus than anyone else. Making the risk of viral exposure worse, however, is the potential risk of legal exposure to medical malpractice claims from patients you are treating. So, how do you protect yourself from legal liability during the coronavirus pandemic as a healthcare provider? Continue reading “Protecting Yourself from Liability as a Healthcare Provider During COVID”

NYS Court of Appeals Holds State Not Liable Under Respondeat Superior

The New York State Court of Appeals used a new analysis to determine whether an employer could be held liable for the actions of their employee in an assault and battery action under the doctrine of respondeat superior.  The case of Rivera v. State of New York was commenced following an inmate’s lawsuit against New York State after suffering injuries following an alleged assault and battery by several correction officers. In finding that the state was not liable for the actions of their employee, the state’s highest court utilized what appeared to be a new test which is being referred to by practitioners as the “so egregious” test. Continue reading “NYS Court of Appeals Holds State Not Liable Under Respondeat Superior”

Second Department Remands Medical Malpractice Case Decided on Evidence of Habit

Last month, the Appellate Division Second Department overturned the judgment of a lower court in which a jury found a doctor not to be liable in a medical malpractice action. The Appellate Division reversed the entry of the judgment after finding that the lower court made an improper determination to allow evidence of the doctor’s custom and practice evidence. Continue reading “Second Department Remands Medical Malpractice Case Decided on Evidence of Habit”

Second Department Reverses Lower Court Dismissal Based on Deposition Demands

The Second Department reversed the dismissal of a lower court based on a Plaintiff’s failure to narrow down deposition demands.  The case of Rezak v. New York Presbyterian Hospital was commenced following a claim of medical malpractice in 2014.  In December 2017, the defendant moved pursuant to CPLR §3216 to dismiss the complaint for a failure to prosecute and additionally based on CPLR §3126 for a failure to comply with a court order.  The court order referred to in the motion was an Order to narrow the demands to depose witnesses affiliated with the Defendant.  The Supreme Court of Queens County dismissed the claim under both CPLR sections. Continue reading “Second Department Reverses Lower Court Dismissal Based on Deposition Demands”

Amazon Found Subject to Strict Products Liability

A Third Circuit panel of Judges held that a products liability lawsuit may continue against the global giant Amazon.  Over the past couple of years, Amazon has faced products liability lawsuits and has been successful in arguing that they are not liable for products liability actions stemming from sales of their third-party sellers. While most products liability claims are typically determined by state law, Amazon’s safe haven with regards to products liability claims is now under fire in several states. Continue reading “Amazon Found Subject to Strict Products Liability”

Second Department Grants Demand for Cell Phone Records in Motor Vehicle Accident Case

On July 24, the Appellate Division, Second Department issued a ruling upholding the denial of a protective order with respect to cell phone records. The case arose from a 2017 accident in Levittown, New York after a motor vehicle struck a pedestrian as they were crossing the street.  The accident occurred at approximately 6:00 p.m. The driver of the motor vehicle left the scene. They then denied any involvement in the accident. Several months later, the pedestrian brought an action against the driver to recover damages for personal injuries he allegedly sustained as a result of the accident. Continue reading “Second Department Grants Demand for Cell Phone Records in Motor Vehicle Accident Case”

Second Department Rules Against Owner of Local McDonald’s in Premises Liability Case

A unanimous panel of Second Department Justices upheld the decision of a lower court denying summary judgment in favor of the national food chain McDonald’s. The case was initially brought in the Supreme Court of Kings County after an individual was hurt in a McDonald’s main lobby.  The Plaintiff was standing in line waiting to order when two women behind him began to fight.  The man then attempted to break up the fight, and, following his intervention, onlookers began to assault him.  The Plaintiff brought the claim against the individual for the injuries suffered, along with the owner of the local McDonald’s for a failure to provide adequate security at the subject premises. Continue reading “Second Department Rules Against Owner of Local McDonald’s in Premises Liability Case”

Court of Appeals Finds that “Stairway” was the Functional Equivalent of a “Sidewalk”

In the case of Hinton v. Village of Pulaski, a majority of the New York Court of Appeals found that a stairway is a functional equivalent to a sidewalk as it pertained to local village law.  The case arose out of a fall that the plaintiff had while descending an exterior stairway leading from a municipal parking lot to a public road. The plaintiff did not provide written notice of the fall to the Village, but subsequently commenced an action against the Village.
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Second Department Upholds Trial Court’s Decision to Not Vacate Dismissal

When New York State Court of Appeals Chief Justice, Janet DiFiore, assumed her position, she set the goal of reducing the backlog of cases across the state.  In the case of Melendez v. Stack, the Second Department decided in line with that goal in refusing to vacate a dismissal after a Plaintiff’s attorney did not have a reasonable excuse for their failure to proceed to trial.
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Second Department Holds Defendant’s Medical Records Are Not Admissible in Close Decision

In a 3-2 Decision, a panel of Second Department Justices held that a defendant’s medical records were not subject to discovery.  In the case of Peterson v. Estate of John Rozansky, the panel of Justices upheld a trial court’s decision to grant a protective order in regards to the deceased defendant’s medical records.  The case was initiated after the plaintiff, who was working at a toll plaza for the Queens Midtown Tunnel, was struck by an oncoming vehicle.  The accident occurred in 2004, and in 2005, the plaintiff brought suit against the driver of the vehicle, John Rozansky.
Continue reading “Second Department Holds Defendant’s Medical Records Are Not Admissible in Close Decision”