Articles Posted in Medical Malpractice

This medical malpractice trial commenced on April 4, 2012 in Penobscot County Superior Court, Maine. The details are set forth in an article in The Bangor News. Although essential facts are not included in the article it appears that the defendant physician prescribed methadone for pain resulting from prolotherapy for the first time on August 26, 2006. Approximately 48 hours later the plaintiff stopped breathing and was revived by her fiance but allegedly suffered brain damage resulting in permanent injury. The dosage of Methadone given is not stated.

It is well known that Methadone may cause slowed breathing and irregular heartbeat, which may be life-threatening. Further, the risk that one will experience serious or life-threatening side effects of methadone is greatest when methadone is first prescribed. When first prescribing Methadone the lowest possible dosage sufficient to alleviate pain should be given. The usual dosage of oral Methadone for pain is 2.5 to 10 mg every 3 to 12 hours.

Our partner Jeffery Bloom settled this complex and difficult liability New York Medical Malpractice case in New York Supreme Court, Nassau County following two mediations. The case arose as a result of the alleged negligent care by the defendant doctors’ of the plaintiffs’ daughter a then 10-year old girl. It was claimed that the defendants failed to timely diagnose and treat a benign brain tumor, a craniopharyngioma, for years, until the tumor grew to the size of a golf ball and invaded both optic nerves, hypothalamus, the anterior and posterior cerebral arteries, the carotid artery, and the third ventricle of her brain.

As a result it was alleged she suffered injury, including blindness, Unable to deal emotionally with her blindness and other medical issues, it was claimed she suffered from clinical depression.

The attorneys at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing patients who have been injured or have died as the result of medical malpractice.

From RSN;

“In defending the U.S. military’s medical system in court, the U.S. Department of Justice is arguing that service personnel and their families are not allowed to sue for medical malpractice regardless of the circumstance.

As a general rule, military members are barred from taking the government to court, which has been established in several court cases, in particular the 1950 Supreme Court decision in Feres v. United States. But now government lawyers are trying to expand the scope of Feres to make it impossible for families of soldiers to sue for medical malpractice, if at the time of the bad care the service member was on active duty.” MORE.

For those of us who represent plaintiff’s in medical malpractice cases it is, of course obvious that the law requires the Notice of Claim to be served on The New York City Health and Hospitals Corporation. It is basic law that service upon the Comptroller of the City of New York is insufficient and will lead to a dismissal of the claim and a potential legal malpractice case. Yet time and again we see cases where the plaintiff’s attorneys served the City of New York resulting in a dismissal of the claim. So was the case in Barnaman v New York City Health and Hospitals Corporation, et al., New York Appellate Division, Second Department, December 6 2011 in which plaintiff’s complaint was dismissed after the statute of limitations had run. The failure of The City of New York to plead an affirmative defense is of no consequence as is their participation in discovery. As The Court stated;

“Contrary to the plaintiff’s contention, the defendants were under no obligation to plead, as an affirmative defense, the plaintiff’s failure to comply with the statutory notice of claim requirement (see Laroc v City of New York, 46 AD3d 760, 761; Maxwell v City of New York, 29 AD3d 540, 541; Lynch v New York City Tr. Auth., 12 AD3d 644, 646). Furthermore, the defendants’ participation in pretrial discovery did not preclude them from raising the untimeliness of the notice of claim (see Laroc v City of New York, 46 AD3d at 761; Wade v New York City Health & Hosps. Corp., 16 AD3d 677; Hall v City of New York, 1 AD3d 254, 256).”

In fact the motion to dismiss can be made at the start of trial and will be granted by the Court.