On April 26th, the Second Department decided that evidence from the defendant’s Facebook page was not admissible unless the person who discovered it was available to be deposed. The case involved a medical malpractice action against an orthopedist that was filed in 2004. During the discovery portion of the case, the plaintiff was deposed three times, after which the plaintiff filed a note of issue.
The Nassau Supreme Court case involved an individual injured in an accident in which their blood-alcohol content was .15%. The toxicology report taken by the hospital also showed the individual had THC in her system at the time of admission to the hospital room. The Hospital submitted a bill for hospital services to the insurer in the amount of $43,212.59. After learning of the toxicology report, the insurer requested verification in the form of a breakdown of which hospital services constituted emergency health services.
A divided New York State Court of Appeals ruled 4-3 that New York’s “scaffold law” does not automatically make employers liable for injuries their workers suffer an on-the-job fall. The state’s highest court reversed the lower court’s summary judgment ruling in favor of a crane operator who fell down a temporary steel staircase at the World Trade Center Freedom Tower construction project in 2010. Continue reading “Court of Appeals Reviews New York ‘Scaffold Law’”
In a 3-1 decision, the Appellate Division Second Department decided that a defendant’s “contumacious” conduct can lead to not only monetary sanctions, but also the striking of their answer. While the lone dissenting judge argued that the sanctions were “drastic,” the majority held that the nature and degree of penalty lies within the sound discretion of the Court.
The Second Department ruled 3-2 that a medical malpractice plaintiff properly amended his lawsuit after failing to add an allegation that his gastroenterologist failed to diagnose him with appendicitis. The doctor in the matter performed a colonoscopy in 2009 on the plaintiff Peter Mackauer. Approximately one week later, Mackauer returned to the gastroenterologist complaining of abdominal pain. The doctor refused to physically examine him, and due to his “highly emotional state,” advised him to see a psychiatrist. Continue reading “Court Approves Addition of New Allegation Three Years After Filing”
On February 23, 2017, a New York court of appeals cleared several pediatricians and a major New York hospital, of a medical malpractice lawsuit that accused them of failing to diagnose an infant’s tumor. The lawsuit was brought by the infant plaintiff’s parents. The lawsuit alleged that the doctors breached the expected standard of medical care by not discovering and treating the infant’s Medulloblastoma, a type of brain tumor, earlier.
When defending against insurance claims in 2017, there are various forms of technology available to discover fraudulent claims. Through data analytics, internet-enabled automobiles, wearables and other forms of technology, insurance providers are able to discover when a claim is fraudulent. But what investigators are now starting to discover is that a claimant’s social media account could be the first place to start. Through a thorough investigation, a defendant can find valuable information to the defense of a claim. Recently, several claims have highlighted this fact.
Last week, two New York federal judges issued decisions on two medical malpractice cases involving New York Hospitals. In the case of Ongley v. Mount Sinai Health System Inc. district Judge Valerie E. Caprioni granted St. Luke’s-Roosevelt Hospital Center’s motion for summary judgement. The case involved complications following an abdominal surgery of an 85 year old man. On the same day, federal judge Paul E. Davison approved a settlement in the case of J.K. v. U.S. against St. Luke’s Cornwall Hospital after a plaintiff brought suit for improper prenatal care given by the staff.
In early 2016, the New York Court of Appeals heard the case of Selective Ins. Co. of America v. County of Rensselaer, 26 NY3d 649 (2016). The case involved a dispute over the language of an insurance policy between the insurer and the County of Rensselear. After settling a civil class action for the county, the insurer argued that each class member was subject to a separate deductible, while the county argued that there should only be one deductible applied to the class.
The Appellate Division, First Department of New York State recently determined that an individual must make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability. The decision by the Appellate Division now aligns with the Second Department, and finally sets the standard for the trial courts within the department which were issuing conflicting decisions on the subject.