Articles Posted in 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.

The New York Appellate Division, Second Department, has, once again, ruled that the scope of a Frye hearing regarding a plaintiff’s theory of causation in a medical malpractice action is limited only to whether or not the expert’s opinion is based on generally accepted scientific principles, as opposed to the expert’s own unsupported beliefs. Specifically, plaintiff is not required to produce medical literature that demonstrates causation under parallel circumstances, but rather, an expert’s testimony must be allowed where a synthesis of various studies or cases permits the expert to reach such a conclusion.

In Lugo v. New York City Health & Hospitals Corp.,decided on September 13, 2011, the infant plaintiff indisputably suffered spastic diplegia type cerebral palsy, resulting in developmental delays and confirmed by abnormal findings on an MRI of his brain. He had been born with excellent Apgar scores, but experienced tremors when he was 40 minutes old. He was ultimately diagnosed in the NICU with a blood glucose level of 3 mg/dl (40 mg/dl being normal). After being given an infusion of glucose, his glucose level rose to a normal amount approximately one hour and twenty minutes after his birth.

The theory of plaintiff’s case was that the hospital’s failure to timely diagnose and treat the infant’s hypoglycemia caused his brain injury. The hospital’s attorneys successfully moved the Motion Court for a Frye hearing, supported by affidavits from its experts stating their opinion that a transient episode could not cause the type of brain injury seen on the infant’s MRIs. Following the hearing, the Motion Court precluded plaintiff’s experts from testifying with regard to their theory of causation, and dismissed the case, finding that plaintiff failed to provide “authoritative” medical literature that supported the theory that a “short episode” of hypoglycemia could have caused the infant’s brain injury.

In a rather unusual case, the New York Appellate Division, Second Department held that there are limits to how far a defendant can go in examining a medical malpractice plaintiff during an Independent Medical Examination in New York. In the case D’Adamo v Saint Dominic’s Home decided on September 13, 2011, the Second Department was confronted with a defendant whose examining doctor wanted to perform a host of invasive examinations upon a non-communicative plaintiff who suffered from both mental and physical disabilities. The 19-year old plaintiff was a resident of the defendant’s group home as he suffered from mental retardation, cerebral palsy and autism. Through his guardian, the plaintiff alleged that the defendant’s malpractice caused him to sustain severe damage to his colon resulting in loss of a length of his colon and a permanent colostomy bag.

It is well-settled law in New York that a defendant is entitled to a medical examination of a plaintiff who places his physical condition in issue. It is also well-settled that the medical examination cannot be invasive in nature. In this case, the examining doctor chosen by the defendant initially sought to perform a rectal exam on the plaintiff with a rigid sigmoidoscope. Counsel for the plaintiff rightfully objected on the basis that the examination sought was clearly invasive and posed risks beyond that of a simple medical examination given the physical and mental condition of the plaintiff. The defendant and the examining doctor suggested alternative examinations involving a digital rectal examination, a pediatric sigmoidoscope and possible sedation. The plaintiff’s counsel again objected on the same basis. The Appellate Division, Second Department agreed that these examinations were too invasive and denied the defendant’s request.