Medical Malpractice

Published on: December 18, 2014

Plaintiff Contends Jury Award for Pain and Suffering Inadequate in Medical Malpractice Case

The decedent underwent three open heart surgeries within a period of less than twenty-four hours. Evidence was offered that the defendant’s malpractice necessitated the second and third surgeries. Hospital records record a pain level of 10 following the second operation. Even when sedated Mr. AT was restless and agitated and required wrist restraints. During his ensuing five-month hospitalization, Mr. AT experienced multiple blood transfusions, six episodes of pneumonia, a partial lung collapse, requiring a bronchoscopy, intestinal bleeding, urinary tract infections, decubitus ulcers, sepsis and hearing loss. He underwent surgery for his bed sores. Antibiotics administered to Mr. AT for infection rendered him comatose at times. As a result of the use of respiratory tubes, he was unable to speak at times and communicated with his wife in writing. In several of his notes he expressed that he was in pain and discomfort, and in fear of dying.

The amount of damages to be awarded to the plaintiff for conscious pain and suffering and loss of services is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation. Here, the jury’s award for conscious pain and suffering deviates materially from what is reasonable injury compensation to the extent that it exceeds $1.2 million

Upon this record, the jury’s award for loss of services deviates materially from what is reasonable compensation to the extent that it exceeds $200,000.00.

Published on: December 16, 2014

New York Appellate Court Discusses Pain and Suffering Damage Award in Medical Malpractice Case

by Stephen Bilkis

CPLR 1601(1) does not address situations, such as here, where the alleged non-party tortfeasor is the State of New York which cannot be joined as a co-defendant in the Supreme Court. The prevailing view, however, is that apportionment against a state joint tortfeasor, subject to suit in the Court of Claims, is appropriate in a Supreme Court action.

In addition, CPLR 1601 (1) permits a state defendant, in the Court of Claims, the benefit of Article 16 apportionment against a non-state, joint tortfeasor by exempting the State from the rule which excludes a non-party’s share when jurisdiction cannot be obtained over that non-party. In this case, the plaintiff has sued Downstate Hospital in the Court of Claims and the hospital in that action has raised as an affirmative defense the protection of CPLR, Articles 15 and 16. Thus, the state hospital may well seek apportionment against Dr. BK in the pending Court of Claims action.

It is noted that when two tort-feasors neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive. Although the original wrongdoer is liable for all the proximate results of his or her own tortious act, including aggravation of injury by a successive tortfeasor, the successive tort-feasor is liable only for the aggravation caused by his own conduct. However, in order for a defendant to be considered an independent and successive tortfeasor and therefore liable only for such aggravated or additional injury caused by it there must be demonstrated two separate injuries, with the second injury not necessarily resulting from the first, and further, there must be demonstrated the capability of delimiting the injures caused by the successive tort-feasor.

Published on: December 14, 2014

Defendant Discusses Surgery Protocols in Response to Medical Malpractice Claim

by Stephen Bilkis

Dr. JM, a board certified cardiac surgeon and professor in heart surgery at the University of Minnesota, testified regarding his training in Central America, Germany and Minnesota, his more than 120 publications on the topic of cardio-thoracic surgery and related subjects, and his participation in approximately 6,000 such surgeries. Thus, Dr. JM, by study, training, observation and experience was qualified to offer an opinion as to the relevant standard of care.

Moreover, the defendant’s present challenge to the qualifications of Dr. JM was not preserved for review by timely objection. In any event, the contention lacks merit as Dr. JM possessed more than adequate qualifications to render an opinion and any alleged lack of skill or expertise on his part was merely a factor to be considered by the jury in weighing his testimony.

The defendant next argues that the injury plaintiff failed to establish, prima facie, that he departed from the accepted standard of care in the manner in which he inspected the decedent’s lung for bleeding at the conclusion of the bypass surgery. This argument, also, is rejected. Dr. JM testified that it did not appear from the records that Dr. BK inspect id the apex area of the upper left lobe of the lung for bleeding or leakage of air at the conclusion of the bypass surgery, and that this constituted a departure from the accepted standards of care. According to Dr. JM, the significance of doing such an inspection is that it would have provided Dr. BK with the opportunity to address the bleeding or leakage as he did later and would have avoided the need for a second or third surgery.

Published on: December 12, 2014

Defendant Seeks Set Aside Jury Verdict in Medical Malpractice Case for Over 19 Million Dollar Award

by Stephen Bilkis

In this action for medical malpractice and wrongful death, defendant JH. Dr. BK seeks an order, pursuant to CPLR 4401, 4404 and 5501, setting aside a jury’s liability verdict in favor of plaintiff and award of damages totaling $19,780,000.00

Dr. BK alleges that (a) plaintiff failed to make a prima facie showing of medical malpractice; (b) the liability verdict is against the weight of the evidence; c) a new liability trial is required in order to apportion fault against Downstate Hospital 1; (d) the interest of justice requires a new trial; (e) the awards for pain and suffering and loss of services are excessive and not supported by the evidence; and (f) the award for wrongful death, pecuniary loss, was not proven with reasonable certainty.

Plaintiff opposes the motion. On April 7, 2003 plaintiffs decedent, AT, was admitted to Downstate Hospital for single bypass heart surgery and a mitral valve repair. Within a period of less than 24 hours, Dr. BK performed three open heart surgical procedures on Mr. AT. At trial, plaintiff alleged negligence by Dr. BK in connection with these surgeries, and Dr. BK claimed that hospital staff was negligent in the monitoring and treatment of various infections and complications during Mr. AT’ ensuing five-month hospitalization. Mr. AT died on September 12, 2004, without leaving the hospital.

Published on: December 11, 2014

Defendants Seek Summary Judgement in NY Appellate Court Arguing Lack of Serious Injury

by Stephen Bilkis

A Bronx Estate Administration Lawyer said that, defendants move seeking an Order granting them summary judgment over and against plaintiff on grounds that plaintiff did not sustain a serious injury, as defined by the Insurance Law. Plaintiff opposes the instant motion averring that defendants fail to establish prima facie entitlement to summary judgment and that question of facts preclude the relief sought. Defendant cross-moves for summary judgment on grounds identical to those asserted by the two defendants. Plaintiff opposes the instant cross-motion.

A Bronx Estate Litigation Lawyer said that, the instant action is for alleged personal injuries. Within her bill of particulars, plaintiff alleges that on June 9, 2004, she was involved in a motor vehicle accident with vehicles owned and operated by the defendants. Plaintiff alleges that she sustained injuries, the most serious being bilateral menisci tears. Plaintiff alleges she sustained a serious injury as defined by the Insurance Law insofar as she suffered a permanent consequential limitation of use of a body or organ; a significant limitation of body function or system; and a medically determined injury or impairment which prevented plaintiff from performing substantially all of the material acts which constituted her usual and customary daily activities for at least ninety days during the one hundred eighty days immediately following her accident.

In support of the within motion, Mercado and American submit an unsworn and uncertified copy of plaintiff’s St. Barnabas Hospital Emergency Room record. Said record evinces that on June 9, 2004, plaintiff, who was morbidly obese, presented to the hospital with complaints of bilateral knee pain secondary to a motor vehicle accident. Upon examination of plaintiff’s knee, tenderness was noted on palpation. No swelling was noted and plaintiff was ambulatory with the use of a cane. X-rays taken evince no dislocation or fractures. Plaintiff was discharged and told to follow up with her doctor.

Published on: August 7, 2012

Plaintiff Claims She was Defrauded in Real Estate Transaction, NY Appellate Court Disagrees

by Stephen Bilkis

The plaintiff in the case is Willie B. Sosa. The defendants in the case are Lorenzo Hines, Eddie Meyers, Harold Hall, and the Estate of Dessie Ree Meyers. The judge in the case is Arthur M. Schack.

About the Case

This is a case that involves a real estate dispute. The real estate in question is the property located at 363 Monroe Street, in Brooklyn, New York. A New York Injury Lawyer said the plaintiff moves to show cause for three branches of relief in the case. The first branch of relief is to stay the thirty-day notice of termination which is dated the 27th of April, 2006. The plaintiff states that this notice violates the notice requirements for ending a tenancy.

Published on: August 6, 2012

Plaintiff Sues for Medical Malpractice, Defense Argues Doctor-Patient Privilege

by Stephen Bilkis

On 17 March 1979, infant plaintiff was born. Allegedly, infant plaintiff suffered brain damage, a brain injury, as a result of negligent obstetrical care.

Thus, a medical malpractice action was brought by the infant and his father on the basis of the birth injury or birth injury accident.

At an examination before trial, plaintiffs produced the infant’s mother, a nonparty witness.

Published on: August 5, 2012

Birth Injury Action May be Barred by Statute of Limitations

by Stephen Bilkis

On 3 July 1970, an infant was born at the General Hospital. Allegedly, as the result of the defendants’ negligence, the infant suffered permanent neurological injury or brain injury, resulting in mental retardation and cerebral palsy. She was discharged from the General Hospital on 10 July 1970, and the hospital’s discharge record contained a notation to the effect that no further treatment was needed. A New York Injury Lawyer said during the ensuing 20 months, the infant received periodic outpatient medical care, including treatment for an apparent heart murmur, at another Hospital, a private facility, and, during that same period, she was treated on several occasions at the General Hospital emergency room for medical problems that were unrelated to the injuries caused by the alleged malpractice.

On 29 February 1972, the infant was admitted to the private Hospital for evaluation, and she remained there through 13 March 1972. During her stay at the private Hospital, the infant was diagnosed, for the first time, as suffering from psychomotor retardation.

On 17 March 1972, four days after she had been discharged from the private Hospital, the infant was seen as an outpatient at the pediatric clinic of the General Hospital. Significantly, the purpose of this visit, i.e., for treatment of fever, vomiting and diarrhea, was unrelated to the infant’s newly-diagnosed retardation, although the hospital’s record of the visit described the infant as obviously retarded and contained a suggestion that perhaps an ear, nose and throat evaluation should be made in order to assess the 20-month-old infant’s speech difficulties.

Published on: August 4, 2012

Plaintiff Mother Sues Mid-Wife for Medical Malpractice Regarding Serious Birth Injury

by Stephen Bilkis

A woman was found to be pregnant and she went for an ultrasound. It was determined that she was carrying twins. The pregnant woman opted for a home birth instead of giving birth at a hospital. She wanted to be assisted by a midwife and nurses.

A New York Injury Lawyer said she nurse/midwife who had her own clinic and lying-in clinic diagnosed one of the twins to have a weak heart sound: the baby’s heart rate decelerated at times. The nurse/midwife recommended that a follow-up sonogram be done at a hospital. The hospital found that the baby’s heart rate had already stabilized. The woman wanted to give birth at the hospital but she also wanted to be assisted in the birth by her own nurse/midwife. The doctors at the hospital told her that her nurse/midwife did not have credentials or birthing privileges at their hospital. They told her that if she were to decide to give birth at the hospital, she would be cared for by one of the obstetricians on their staff.

The woman left and her pregnancy progressed. She stuck it out under the care of the nurse/midwife. She gave birth at her home on July 1, 2004. One of her twin babies was stillborn. The death certificate as filled out by the nurse/midwife listed the cause of death as undetermined.

Published on: August 2, 2012

Plaintiff Appeals Judgement on Grounds of Res Ipsa Loquitor

by Stephen Bilkis

On 26 September 1981 at 9:29 A.M., a mother gave birth to a baby girl, the infant plaintiff, at a Medical Center. She was attended by an obstetrician-gynecologist. The delivery was difficult because the baby had shoulder dystocia, i.e., although the head had emerged, the shoulders were stuck on the pelvic bone and the sacral promontory. After birth, the infant was found to have a birth injury or a birth injury accident: an Erb’s palsy or brachial plexus palsy to the right shoulder and arm caused by tearing of the nerve roots that controlled the right upper extremity. A New York Injury Lawyer said the plaintiffs contended that this condition was caused when the obstetrician-gynecologist applied excessive pressure during traction to the baby’s head when trying to dislodge the shoulders. The doctor’s explanation was that during the dystocia a retraction caused by the natural forces of labor put a stretch on her right shoulder.

Thereafter, a medical malpracticeaction to recover damages for personal injuries, etc., ensued. The Supreme Court of Westchester County, upon a jury verdict, rendered judgment in favor of the respondents and against the plaintiffs.

The plaintiffs appeal from the judgment.