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”
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.