First Department Finds Case Not Time-Barred Because of Continuous Treatment

In the case of Lewis v. Rutkovsky, the First Department was asked to review the continuous treatment doctrine as it applied to a patient who brought a lawsuit against her primary care physician.  The plaintiff alleged that her primary care physician failed to detect, diagnose, and treat her brain tumor.  As a result of the doctor’s failure to diagnose, the plaintiff underwent brain surgery that left her legally blind.  The First Department reviewed the continuous treatment doctrine in determining whether or not the lawsuit should be time-barred.

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Second Department Denies Facebook Evidence in Medical Malpractice Case

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.

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“Drastic” Sanctions Against Defendant in Medical Malpractice Case Issued by Second Department

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.

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Federal Court Decides Two New York Medical Malpractice Cases

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.

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Discovery Requests Were Wrongly Denied for Records of Surgical Procedures Performed on Non-Parties

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.

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