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”
Tag: medical malpractice
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”
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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Court Approves Addition of New Allegation Three Years After Filing
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”
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.
Continue reading “Discovery Requests Were Wrongly Denied for Records of Surgical Procedures Performed on Non-Parties”