New York Injury Lawyers Blog

The proposed cap on pain and suffering damage awards in Governor Cuomo's budget has caused a significant rift not only within the state senate and assembly, but also among medical practitioners/insurance companies and victims advocates. Under the proposition, which originated with Cuomo's Medicaid Reform Team, a $250,000 cap would be placed on pain and suffering awards in medical malpractice lawsuits.

Proponents of the cap have cited an alleged potential budget savings in the hundreds of millions of dollars if it is adopted. Dissenters, such as Assembly Judiciary Chairwoman Helene Weinistein (D-Brooklyn), question the accuracy of the data used to predict the savings, and counter that the focus should be on improving care, rather than limiting liability. With increased patient care, malpractice litigation will necessarily decline. Better patient care also obviates much of the need for greater pain and suffering awards, as less pain and suffering will occur when greater care is taken of patients.

Dr. Laura Ellenson can see both viewpoints of the argument. Dr. Ellenson is both a pathologist, and the mother of a son who suffers from cerebral palsy as a result of medical negligence. The Ellenson family has already won a malpractice lawsuit, so one could argue that, at this point, Ellenson has more stake as a potential defendant doctor than as a potential plaintiff. In her view, the greater good is compensating families who have experienced the irreperable harm caused by negligently performed medical procedures.

Capping pain and suffering damages for victims of negligence or medical malpractice punishes the victims, rather than correcting the system. In our view, when greater care is taken by medical professionals to avoid malpractice and negligence injuries, the system will correct itself with far greater accuracy than tort reform legislation will accomplish.

For a more detailed discussion of the issues presented by the proposed tort reform and its potential impact on victims of medical malpractice, as well as taxpayers, please read Eric Turkewitz's recent Journal News Op Ed Article, Cuomo's medical malpractice 'reform' will hurt victims and taxpayers.

Website Resource: Doctor with disabled son is no fan of governor's plan to cap malpractice suits, NY Daily News, Denis Hamill, March 13, 2011

In January, a Supreme Court of New York, Second Department, sanctioned the defendants for spoliation of evidence. In the case, Roman v. Ardsley Radiology, P.C., the plaintiffs allege that the defendant practitioners failed to properly read a mammogram, leading to a missed diagnosis of breast cancer. The defendants failed to produce the mammogram films, which resulted in plaintiffs' motion accusing the defendants of spoliation.

According to Black's Law Dictionary, spoliation is "[T]he intentional destruction, mutilation, alteration, or concealment of evidence, (usually) a document." Under Education Law section 6530(32), failure to maintain mammogram records of a patient (unless such original records are transferred to a medical institution, physician, or the patient directly) qualifies as professional misconduct.

The court indeed found that spoliation was evident in this case, based on section 6530. Although the plaintiffs requested that the answers of the defendants be stricken, the court found this remedy extreme. Because the spoliation hindered the plaintiffs' case, but did not leave them "prejudicially bereft of a means of proving their claims," the court deemed an adverse inference charge pertaining to the defendants to be an appropriate sanction.

The Supreme Court Appellate Division (Second Department) recently rejected the defendant's arguments for summary judgment in Bloomfield v. Jericho Union Free School District a Long Island premises liability negligence case. The court ruled that the defendant school district did not meet its prima facie burden of proof for summary judgment.

The facts of the case are straight-forward. A young female student climbed atop an outside mat during gym class. While on the mat, the student's foot became caught in a tear in the mat, causing her to fall to the ground. The gym teacher, a substitute, was not near the girl when the fall occurred.

The defendant school district moved for summary judgment to dismiss the cause of action for premises liability (negligence). In such a motion, the burden of proof rests with the defendant to prove that it (the defendant) did not create the hazardous condition and was unaware of the condition's existence. If the condition is "open and obvious," a defendant has no duty to warn of the condition.

The Second Department ruled that the school district failed to establish that it did not have notice of the tear in the mat. The district also failed to establish that the tear was open and obvious. Because both of these issues present questions of fact, the court ruled that the matter could not be summarily dismissed.

Additionally, the court found that the defendant failed to establish that no questions of fact exist regarding the negligent supervision cause of action. The suit will now proceed to trial.

Bloomfield v. Jericho Union Free School District, 80 A.D.3d 637 (2d Dept. 2011).