New York Injury Lawyers Blog

Last week, the Second Department upheld a jury verdict in a Suffolk County medical malpractice action. The plaintiff sought and received from the Defendant doctor, among other things, counseling for mental health issues. During the course of the plaintiff seeing the defendant professionally, a personal sexual relationship developed. The consensual relationship lasted approximately nine months, until the parties concluded their affair.

The plaintiff acknowledged that at no time did the defendant physician say or imply that the sexual relationship was "part of the treatment." Additionally, the defendant was not a mental health professional. The court stated that these facts were irrelevant, however. By acting in the capacity of a mental health professional, i.e. counseling the plaintiff and engaging in "talk therapy," the defendant was in essence performing the function of a mental health professional. In such cases, the court found that a sexual relationship is likely to have a negative impact on the patient, regardless of whether or not such a relationship was coerced. The court found that despite the consensual nature of the relationship, its very existence was a departure from the recognized standard of care.

The court found that the jury award did not materially deviate from reasonable compensation. Originally, the jury awarded $150,000 for past mental distress, $50,000 for future mental distress, $134,000 for loss of past financial support, and $166,000 in punitive damages. The jury found the defendant 75% at fault. The Second Department court affirmed the jury award, with a bill of costs to the plaintiff.

Website Resource: Dupree v. Giugliano, 19557/04, NYLJ 1202514716761, at *1 (App. Div. 2nd, Decided September 13, 2011)

In a recent New York medical malpractice case, Defendant Geneva Hospital's motion for summary judgment (dismissal) was granted by the Trial court. Plaintiff appealed and the Appellate Division, Fourth Department reversed. The Court reasoned that when seeking summary judgment in a medical malpractice action, it is the moving party's burden to disprove every allegation of departures from the standard of care allegedly committed by the defendant. Here, defendant hospital's expert failed to address several claims made in the plaintiff's complaint and bill of particulars.

The affidavit submitted by defendants' expert did not address several claims of negligence raised by the plaintiff in the amended complaint. Specifically, plaintiff alleged that the Hospital's failed to call a code and initiate cardiopulmonary resuscitation (CPR) in a timely manner. Defendants' own submissions suggested that there may have been a delay of 15 minutes between the discovery of decedent unresponsive in her hospital bed and the initiation of CPR. Defendant's expert failed to address this delay in his affidavit. Consequently, the Court denied that part of defendants' motion holding that the burden of proof never shifted to plaintiff and the motion should have been dismissed.

Humphrey v. Gardner, 81 AD3d 1257 (2011 4th Dept.).

The New York State Appellate Division, 4th Department recently held that a jury award of $500,000 for loss of consortium constituted a material deviation from reasonable compensation. The underlying basis for the claim occurred while the plaintiff-decedent was being treated for respiratory issues in an upstate hospital. Several unsuccessful attempts to intubate resulted in a punctured esophagus.

The decedent died from unrelated causes, however, she and her husband had initiated a medical malpractice suit prior to the decedent's death. A jury awarded $500,000 for pain and suffering and $500,000 for loss of consortium. A claim for loss of consortium arises when the injured party can no longer provide services customary in a marital relationship (ie. companionship, love affection, sexual relations),

The court ruled that the maximum amount of reasonable compensation for loss of consortium was $200,000, and as such granted a new trial for damages for loss of consortium only. In making this determination, the Appellate Court cited CPLR section 5501(c), which states, in relevant part, that "the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation." Because the Appellate Division in this case deemed that the $500,000 award for loss of consortium deviated materially from what would be reasonable compensation, it was within its powers to reverse the award and grant a new trial. If plaintiffs stipulate to reduce the award to the $200,000 that the court ruled reasonable compensation, a new trial would be avoided and the judgment modified for the specific damages.

Website Resource: LexisNexis

Judge-directed negotiation is a somewhat novel idea, aimed at avoiding lengthy trials and settling civil suits early in their lifespan. From a public policy standpoint, this process circumvents drawn-out legal proceedings, saving time for courts and money for taxpayers. On the other hand, from the standpoint of the parties involved in the proceeding, the costs and benefits are not as black and white.

An obvious benefit of judge-directed negotiation, both for plaintiffs and defendants preparing to litigate a personal injury matter, is the avoidance of protracted litigation that proves costly for both sides. Under the program, attorneys for both sides must have authority from their respective clients to settle the cases. This precludes the possibility of merely determining the other side's bargaining position with no intention of accepting or working toward a reasonable offer.

Conversely, the procedure of judge-directed negotiation has its drawbacks. Because both the judge and opposing counsel are aware of each side's authority to settle, attorneys may feel pressured to accept an offer that perhaps they otherwise would not. While negotiation always has been, and always will remain, an integral part of any legal proceeding, the circumstances are changed when the negotiations are being led by a judge. It is the job of a plaintiff's attorney to obtain the maximum level of just compensation for his or her client. Likewise, it is the role of defense counsel to minimize the amount that his or her client must dispense. Under the conditions of judge-directed negotiations, an attorney may feel compelled to offer more, or accept less, than he or she would under more traditional negotiating situations.

In the fluid essence of the American judicial system, judge-directed negotiation is simply another way of attempting to accelerate cases from inception to conclusion. As the program develops, its overall effect on the process of civil litigation will become more clear. In the interim, it is still the essential duty of lawyers to obtain a result that is both fair and efficient, but most importantly in the best interest of his or her client.

Website Resource: To Curb Malpractice Costs, Judges Jump In Early

New York Times, William Glaberson, June 12, 2011

Defense counsel in Muzio v. Napolitano, a recent medical malpractice case, conducted an interview of the plaintiff's treating physician, a nonparty, without obtaining a Arons authorization. The Arons case requires that plaintiffs provide defendants with written authorizations allowing counsel for the defense to interview plaintiff's treating physicians. However, this interview cannot take place without such authorization.

The Second Department of the New York State Appellate Division reversed the Trial Court's decision holding that since any information obtained by the defendant from the interview was "improperly obtained" the Supreme Court should have granted plaintiff's pretrial motion for a protective order. The protective order sought would have precluded the defense from calling the treating physician to testify during the medical malpractice trial as an expert witness for the defense, and from introducing the information obtained from the interview at trial.

Muzio v. Napolitano, 2011 NY Slip Op 01987 (2nd Dept. 2011).

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.

William Heisel, of the website Reporting on Health, has recently finished an investigation into the the records of medical boards across the fifty states and the District of Columbia. Heisel initially set out to chronicle questionable practices of doctors for the site. What he found throughout his research is much darker.

With the survey now finished, he has detailed a disturbing number of problematic cases nationwide among practicing physicians, ranging from DUI to sexual abuse. Most astonishing is that the majority of the physicians listed in Heisel's study, a shocking 82 percent, are still actively practicing. Perhaps Heisel's research will lead to an increased awareness among medical boards of the dangers of omitting disciplinary action against doctors found to be in violation of rules and common sense.

Heisel's regular reports can be found here.

Website Resource:

Lessons Learned As 'Doctors Behaving Badly' Tour Ends, NPR, Scott Hensley, December 29, 2010

A Bronx, NY jury recently awarded $20 million in a medical malpractice case to a 43 year-old unemployed man whose colon was damaged during a colonoscopy. However, due to a high/low agreement entered into by the parties, plaintiff will receive $850,000. Plaintiff Edgar Gonzalez developed peritonitis that necessitated removal of some of his colon and the temporary creation of an ileostomy.

Gonzalez contended that the peritonitis was a result of perforations in the colon caused by his gatroenterologist's neglect during the colonoscopy. Gonzalez claimed that the perforations were a result of excessive insufflation of his colon. He further claimed that the perforations should have been detected and repaired before the colonoscopy was completed. The doctor claimed that blood clots caused the injury.

Website Resource:

VerdictSearch, August 26, 2010.

Please click here for a well-done video produced by the Consumer Attorneys of California.

The video considers a world without lawyers.

A New York County jury recently awarded $1.5 million to a woman who claimed that she suffers permanent dysfunction of her jaw as a result of an anesthesiologist's error during surgery. The matter stems from an April 2004 procedure in which plaintiff Caridad Cuevas underwent removal of a stone from a salivary gland.

Cuevas claimed that soon thereafter, she developed clicking and popping of her jaw. She contended that eating has become painful and that she must wear a jaw guard whenever she is not eating. Cuevas sued the hospital, St. Luke's Roosevelt Hospital Center, alleging that her injury was a result of an anesthesiologist who was overly forceful during the intubation process. The hospital blamed the surgeon, who was not a hospital employee, but the jury found the anesthesiologist responsible for the plaintiff's injuries.

A New York jury awarded $485,000 in a medical malpractice lawsuit to a 4-year-old child who suffers from a mild palsy as a result of an injury that occurred at birth. Jayden Bennet sustained an Erb's palsy of his right arm during the first two years of his life. The condition limited the arm's strength and mobility.

Jayden's mother, Lizzette Cain, asserted the claims on behalf of her son. She contended that the palsy was caused by traction applied to the boy's head during delivery. The traction was applied to relieve entrapment of his right shoulder. Ms. Cain further argued that a Caesarean delivery was the more prudent option given the child's size. The delivering obstetrician countered that due to the totality of the signs and symptoms present, a vaginal delivery was appropriate.

Website Resource:

VerdictSearch.com, June 3, 2010.

A New York jury recently awarded a female home-care nurse from Syracuse $1.7 million in a medical malpractice lawsuit against Community General Hospital. Plaintiff, Tina Holstein, claimed that she was improperly administered an injection after giving birth to her third child. Due to complications during the delivery, a nurse reportedly gave Holstein an injection "too low" in her back that resulted in damage to her sciatic nerve.

Plaintiff contended that as a result of the nerve damage, she suffers from back pain and limited range of motion. Plaintiff's experts testified that, in all likelihood, the condition will worsen over time. Attorneys for the hospital are contemplating an appeal.

Website Resource:

Syracuse jury awards nurse nearly $1.7 million for nerve damage after baby's birth, Syracuse Post-Standard, Jim O'Hara, June 1, 2010.

A medical malpractice lawsuit has been filed against a New York cancer specialist, Dr. Gilbert Lederman. The lawsuit claims that Dr. Lederman treated a woman for pancreatic cancer when she was not sick, and that the treatment killed her.

According to the family's attorney, Giuseppa Bono was referred to Dr. Lederman by an Italian infomercial actor who posed as a physician. Lederman reportedly failed to verify the diagnosis of cancer, and treated her immediately with radioactive therapy. Lawyers for Bono's estate also contend that Lederman paid the infomercal actor, Salvatore Conte, a referral fee.

Website Resource:

Specialist accused of treating healthy woman for cancer stars in infomercial with fake doc: lawyer, Daily News, John Marzulli, May 12, 2010.

A Brooklyn, New York jury recently found physician, Dennis Fabian, liable for medical malpractice and resultant injuries suffered by a 71 year-old man. The jury returned a verdict of $1,937,000 in favor of Richard D'Allessandro and his family. Plaintiff claimed that Dr. Fabian failed to diagnose an infection that led to pulmonary and renal failure, as well as a stroke.

In July 2005, D'Allessandro sought treatment from Dr. Fabian regarding his prosthetic knee. D'Allessandro claimed that although Fabian suspected that the knee was infected, he failed to order appropriate diagnostic tests and failed to change an antibiotic regimen that was ineffective. As a result, the infection spread, leading to replacement of his prosthesis, Clostridium difficile colitis, and pulmonary and renal failure. D'Allessandro ultimately suffered a stroke. Fabian contended that the infection was properly diagnosed and treated. The jury disagreed.

Website Resource:

VerdictSearch, May 6, 2010.