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.
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”
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.
The Appellate Division, Second Judicial Department recently handed down its decision on a medical malpractice suit appealed from the New York State Supreme Court. In reversing the lower court’s holding, the Second Department found that specific discovery requests by the plaintiff were wrongly denied.