Articles Posted in Medical Malpractice

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This is a case of appeal. The appellant of the case is Miguel M. The respondent in the case is Charles Barron. The case is being heard in the Second Department of the New York Supreme Court, Appellate Division.

Court Opinion

A New York Injury Lawyer said this is an appeal case where the court is asked to determine if a physician can obtain medical records for a patient without the authorization of the individual or a court order in regard to the Health Insurance Portability and Accountability Act or HIPAA in specific situations.

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The issue in this medical malpractice case is whether the plaintiff/claimant has met the burden of showing why the court should permit him to serve a notice of claim even though the 90-day timeframe has expired. Under New York law, before a plaintiff has the legal right to file a lawsuit against a municipal or governmental entity, it must first serve a notice of claim on the entity. The law requires that the notice of claim is served within 90-days of the incident that forms the basis for the claim.

The claimant seeks to recover damages from defendant Roswell Park Cancer Institute for negligent care that resulted in the claimant having to undergo multiple additional surgeries and an extended recovery period. Roswell is a public corporation, operated by the State of New York. The claimant went to Roswell to have a cancerous mass surgically removed from his lower colon. A few days after the surgery, the claimant was diagnosed with an anastomotic leak to his surgical site. As a result, he had to undergo surgery to repair the leak. Because of the anastomotic leak and complications that resulted from the leak, the claimant had to undergo a colostomy and multiple other surgeries and had to remain at Roswell for over a month. He continued to receive treatment at Roswell and another facility for several additional months.

The claimant failed to timely serve notice of claim, and now seeks leave to serve a late notice of claim. The defendant opposes the claimant’s motion on a variety of grounds. 1). The claimant has not demonstrated a reasonable excuse for not timely serving the noticed; 2). The defendant’s lack of actual or constructive knowledge of the facts on which the claim is based; and 3). The defendant’s case was prejudiced because of the lack of notice.

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In this case the court determines the issue as to whether the statute of limitations for filing a medical malpractice claim was tolled based on the continuous treatment doctrine. Under New York law, there are special procedural rules that must be followed in order to sue a public entity. Because the defendant Elmhurst General Hospital was owned by the City of New York and operated by New York City Health and Hospital Corporation at the time of the incident at the basis of this lawsuit, the plaintiff was required to follow the special procedures.

Before an injured victim can file a lawsuit against a public entity, the plaintiff must first file a notice of clam with the appropriate public office within 90 days of the date of the negligent act that resulted in the plaintiff’s injury. In this case, the malpractice occurred at the time of plaintiff’s baby’s birth, July 3, 1970. According to the plaintiff, the defendant’s negligent care during labor and delivery of the baby resulted in neurological damage. As a result, the baby has mental retardation and cerebral palsy.

The plaintiff served notice on February 8, 1980—over 10 years after the negligence and over 10 years after the deadline for serving a notice of claim. Thus, the court had no choice but to dismiss the plaintiff’s claim, unless the time for serving notice was tolled. “Tolling” the statute of limitations means pausing or delaying the running of the statute of limitations. In other words, the plaintiff in a personal injury lawsuit would have extra time to file his or her claim. In New York, two possible reasons for tolling the statute of limitations in a medical malpractice case are due to infancy or due to continuous treatment. After determining that the time for serving notice could not be tolled based on infancy, the plaintiff argues that her filing was not late under the “continuous treatment” rule. The doctrine provides that in a medical malpractice case, the 90-day filing period for serving a claim is tolled if there is a continuous course of treatment for the condition caused by the alleged medical malpractice.

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In a medical malpractice claim, the issue before the court is whether the plaintiff had a reasonable excuse for filing a late notice of claim. Under New York law, before a plaintiff can bring a lawsuit against a public or government entity, the plaintiff must first file a notice of claim. The purpose of a notice of claim is to give the government entity advance warning that a lawsuit is pending that involves a claim for damages. It allows the government the opportunity to investigate the incident and the merits of the claim. In the Velazquez case, the defendants are the City of New York Health and Hospitals Corporation, the public entity that operates Jacobi Medical Center. The plaintiff was required to serve the notice within 90 days of the incident that led to the medical malpractice claim.

The infant plaintiff was born at Jacobi Medical Center in March 1998. At birth he weighed one pound, nine ounces, and remained in the neonatal intensive care unit until July 6, 1998. At age 4 he was diagnosed with spastic cerebral palsy and asthma. However, his parents did not file a notice of claim on his behalf until October 11, 2006– 8 years later. The plaintiff claimed that due to the defendant’s medical malpractice and failure to obtain informed consent, he was injured.

Clearly the plaintiff did not serve the notice of claim within 90 days of his birth in 1998. The court must now determine if, despite filing the notice of claim 8 years after the incident, the plaintiff filed the notice timely. The plaintiff filed a motion requesting the court to issue an order deeming the notice of claim served to be timely or, in the alternative, granting leave to serve a late notice of claim. New York law does allow exceptions to the 90-day rule statutory timeframe. In making its decision, the court must look at 3 factors: 1). whether the plaintiff provided a reasonable excuse for the late serving of the notice of claim; 2). whether the municipality had actual notice of the essential facts of the claim within 90-days after the claim arose; and 3) whether the delay would substantially prejudice the municipality in its defense.

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The respondent for the case is Ivelisse T. This case concerns the alleged abuse and neglect of two children under the age of eighteen, Rosaly S. Marcos S, and Wesley R. The case is being heard in the Kings County Family Court. Daniel Fraidstern, Esq., is the Special Assistant Corporation Counsel for the Administration of Children’s Services. The attorney for the respondent mother is Michael S. Somma Jr. The Attorney for the children is Fred Allen Wertheimer.

Case Background

The respondent in the case is the mother of Wesley R., Marcos S., and Rosaly S. Before this case the children all lived in Brooklyn with the respondent and Christian A., her husband.

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Birth Injury 126

The plaintiffs of this particular case are Miles Mendez, who is an infant, who is represented by his natural guardian and mother, Melina Mendez, and Melina Mendez individually. The defendant of the case is the New York and Presbyterian Hospital.

Case Facts

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Queens Birth Injury 4

This is a matter that involves, Stephen F. who is a child who is under the age of eighteen. It is alleged that Stephen has been neglected by the respondents, Carol/S.F. et al. The case is being heard in the Queens County Family Court. The law guardian of Stephen is Jerry Gruen. The petitioner in the case is represented by Frank J. Carabetta. The respondent is represented by Ulrich Fritsche. The Judge for the case is Mara T. Thorpe.

Case at Hand

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In a medical malpractice claim, both the plaintiff and the defendants moved for a Frye hearing regarding the anticipated testimony of the expert witnesses. In the alternative, the defendants ask the court to dismiss the plaintiff’s action, and the plaintiffs ask the court to preclude the testimony of the defendants’ experts.

Established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the purpose of a Frye hearing is to determine the admissibility of scientific evidence. Opponents of scientific evidence that the opposing party wants to submit typically object to it as unsupported by published articles or prevailing medical or scientific thought. During a Frye hearing it is up to the court to determine if the testimony was developed based on accepted on scientific methods.

In Fernandez v. St. John’s Queens Hospital, the infant plaintiff was born prematurely on April 29, 1991 at St. John’s Hospital in Queens. She was discharged on July 10, 1991. After discharge, defendant Pavlakis, a pediatric neurologist and defendant Miguez, a pediatrician, began to treat her. In October 1991, Pavlakis diagnosed the plaintiff with progressive obstructive hydrocephalus and placed a shunt to remove fluid around the brain. It was determined that the plaintiff had suffered brain damage. She has spastic quadriplegia, severe mental retardation, and suffers from seizures. She was admitted to New York Foundling Hospital.

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Queens Birth Injury 5

This is a case being heard in the Kings County Family Court. The case involves the children, Justin S., Brandon S., and Shyrelle F., all under the age of eighteen. A New York Injury Lawyer said the case is alleging neglect of the children by the respondent, Wendell S. The children, Brandon and Justin are represented by Michael A. Fiecter. Shyrelle is represented by attorney Kim Ostheimer. Christine Waer, Esq. who is the Special Assistant for the Corporation Counsel Administration of Children’s Services and is seeking charges of neglect. The respondent father is represented by Rhonda Weir, Esq. The non respondent mother is represented by Kim Ostheimer.

Case at Hand

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Queens Birth Injury 15

This case is being heard in the Special Term of the Queens County Supreme Court. The original plaintiffs of the case are John Joseph Shea III, who is an infant under 14 years old, represented by his guardian John Joseph Shea II and John Joseph Shea II individually. The defendants are Otto Gitlin, d/b/a Queens Memorial Hospital, Jane Stidolph (first name is fictitious), and Dr. John Uvetich. Stidolph and Dr. Uvetich are third party plaintiffs versus the third party defendants Dr. Samuel Weiner and Dr. S.J. Rosoff.

Third Party Case

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