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Published on: March 20, 2023

Court found that medical professionals failed to diagnose breast cancer in a timely fashion. Johnson v. New York Methodist Hospital, 69 N.E.3d 1045 (N.Y. 2016)

by Stephen Bilkis

Johnson v. New York Methodist Hospital involved a medical malpractice claim against New York Methodist Hospital and several of its doctors. The plaintiff, Darilyn Johnson, alleged that the defendants failed to diagnose and treat her breast cancer in a timely manner, causing her cancer to metastasize and become more difficult to treat.

The case was significant for several reasons. First, it raised important questions about the standard of care that doctors and hospitals must meet when diagnosing and treating cancer. Second, it highlighted the challenges that plaintiffs face in proving medical malpractice claims in New York. Finally, it underscored the importance of expert testimony in medical malpractice cases.

Facts of the Case

Published on: March 15, 2023

In a medical malpractice case, the Court discussed the standard for determining a doctor’s standard of care. O’Connor v. Grace Hospital, 283 N.E.2d 540 (N.Y. 1972)

by Stephen Bilkis

O’Connor v. Grace Hospital was a landmark case in medical malpractice law that shaped the legal standards for establishing a doctor’s duty of care and the scope of that duty. The case involved the plaintiff, Mrs. O’Connor, who was suffering from severe abdominal pain and was admitted to Grace Hospital in New York City. The defendant, Dr. Cahill, performed a laparotomy, which is a surgical procedure that involves making an incision in the abdominal wall to gain access to the abdominal cavity. During the surgery, Dr. Cahill mistakenly cut Mrs. O’Connor’s common bile duct, causing her to suffer significant complications and prolonged pain.

Discussion

Mrs. O’Connor filed a lawsuit against Dr. Cahill and Grace Hospital, alleging that they had breached their duty of care to her by failing to exercise reasonable care during the laparotomy. The case went to trial, and the jury found in favor of Mrs. O’Connor, awarding her $100,000 in damages. Dr. Cahill and Grace Hospital appealed the decision, arguing that the trial court had erred in its instructions to the jury regarding the standard of care and causation.

Published on: March 13, 2023

Healthcare providers breached the standard of care by failing to address fetal distress. Marlowe v. Staten Island University Hospital, 864 N.Y.S.2d 391 (N.Y. App. Div. 2008)

by Stephen Bilkis

Marlowe v. Staten Island University Hospital is a medical malpractice case that centers around the tragic death of a newborn infant. The case provides a sobering reminder of the devastating consequences that can result when healthcare providers fail to meet the standard of care that is expected of them. During the labor and delivery process, healthcare providers must continuously monitor the fetal heart rate to ensure that the baby is receiving enough oxygen and nutrients. If the healthcare providers notice any signs of distress, such as an abnormal heart rate or reduced movement, they must take appropriate action to address the distress and prevent any harm to the baby.

Background

In 2001, Ashley Marlowe arrived at Staten Island University Hospital for the delivery of her first child. During the labor and delivery process, her baby experienced fetal distress, but the healthcare providers allegedly failed to provide appropriate care to address the distress. As a result, Marlowe’s baby was born with severe brain damage and died a few days later.

Published on: March 8, 2023

Court found driver liable in a pedestrian accident because he did not exercise due care. Stathis v. Leonardis, 72 N.Y.2d 517 (1988)

by Stephen Bilkis

Pedestrian accidents can result in severe injuries, and the victim may be entitled to compensation for their damages. The law in New York provides protection to pedestrians, and drivers have a legal obligation to exercise reasonable care to avoid causing harm to them. In Stathis v. Leonardis, the New York Court of Appeals considered the issue of whether a pedestrian was entitled to compensation for injuries sustained in an accident involving a vehicle. This case is significant as it provides guidance on how courts in New York determine fault and damages in pedestrian accidents.

Background

The plaintiff in the case, Stathis, was a nine-year-old child who was walking home from school when he was hit by a car driven by the defendant, Leonardis. Stathis suffered severe injuries, including a fractured skull and a broken leg. The accident occurred on a busy street in Queens, New York, during rush hour traffic.

Published on: March 6, 2023

Duty of care that drivers owe pedestrians in New York. Weininger v. Hackel, 6 N.Y.2d 67 (1959)

by Stephen Bilkis

Weininger v. Hackel deals with the issue of negligence and the duty of care owed by drivers to pedestrians. New York State has a unique set of laws that govern the rights and responsibilities of pedestrians on the roadways. In New York, pedestrians have the right of way in crosswalks, whether marked or unmarked. Drivers are required to yield to pedestrians in crosswalks and are also prohibited from passing vehicles that have stopped for pedestrians. However, pedestrians also have certain responsibilities, such as using crosswalks when available and obeying traffic signals and signs. Failure to adhere to these rules may result in a citation or legal consequences.

Background

On March 7, 1953, Margaret Weininger was crossing a street in Brooklyn when she was struck by a car driven by Max Hackel. Weininger sustained serious injuries, including a broken leg and a fractured skull, and was permanently disabled as a result of the accident. Weininger sued Hackel for negligence, alleging that he failed to exercise reasonable care and caution while driving and was therefore responsible for her injuries.

Published on: March 1, 2023

Injured worker can sue third party for damages even if workers’ compensation benefits have been paid. Brescia v. G.F. Hämmerle, Inc., 7 N.Y.2d 544 (1960).

by Stephen Bilkis

Brescia v. G.F. Hämmerle, Inc. is an important case because it highlights the rights of injured individuals to pursue damages beyond the scope of workers’ compensation benefits.

New York workers’ compensation is a system designed to provide benefits to employees who are injured or become ill on the job. Under New York law, most employers are required to carry workers’ compensation insurance to cover their employees in case of a workplace injury or illness. The benefits available under New York workers’ compensation include medical treatment, lost wages, and disability benefits.

While workers’ compensation benefits can provide important financial support to injured workers, they are often limited in scope and may not fully compensate an injured worker for their losses. In some cases, injured workers may be entitled to pursue additional compensation through a personal injury lawsuit against a third party who may be responsible for their injuries.

Published on: February 27, 2023

Court Discusses the Importance of Informed Consent and Apparent Authority. Johnson v. New York Methodist Hospital, 69 N.E.3d 1045 (N.Y. 2016)

by Stephen Bilkis

Informed consent and apparent authority are two important legal concepts that are relevant in the healthcare industry. Informed consent refers to the right of patients to receive adequate information about their medical treatment options and to make informed decisions about their care. Apparent authority, on the other hand, refers to the legal doctrine that holds hospitals and other healthcare providers responsible for the actions of their employees or agents, even if those actions were not explicitly authorized.

In Johnson v. New York Methodist Hospital the plaintiff alleged that she did not give informed consent for a medical procedure and that the hospital was liable for the actions of an independent contractor who performed the procedure.

Background

Published on: August 19, 2015

New York Appellate Court Rules that Date of Filing Controls Change of Venue Argument

by Stephen Bilkis

For the Supreme Court of the State of New York, the prescribed venue of an action is codified at and statutorily authorized by Article 5 of the CPLR. The statutory scheme provides that “notwithstanding the provisions of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order of the court upon motion or by consent” (CPLR §509). As such, unless the parties have by prior written agreement fixed the venue of an action, CPLR Article 5 permits the plaintiff the right to make the initial selection of an appropriate venue.

Pursuant to CPLR §503(a), venue is predicated upon the residence of one of the parties at the time the action is commenced, not where the cause of action arose. However, CPLR §510(1) provides that the “court, upon motion, may change the place of trial of an action where: the county designated for that purpose is not a proper county.” And, it is settled that upon a motion by defendants to change said venue, defendants bear the burden to establish that the plaintiff”s choice of forum is not appropriate, or that other factors and circumstances require that venue be changed. In addition, it is settled that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed”.

Here, defendants fail to demonstrate that plaintiffs move to Pennsylvania shortly after commencing the instant action evidences a lack of intent to retain New York County as a permanent residence sufficient to defeat New York County as a basis for venue.

Published on: February 4, 2015

NY Court Rules Plaintiff’s Claim is Dismissed Pursuant to CPLR §§ 321 land 3212 and Article 51 – Branch v. Metro. Suburban Bus Auth., 2010 NY Slip Op 33281 (N.Y. Sup. Ct., 2010)

by Stephen Bilkis

In this personal injury case, the defendant disputes that the plaintiff suffered a “serious injury” as defined by § 5102(d) of New York Insurance law. Under New York law, in order for a plaintiff to be able to recover damages based on the negligence of another person or entity, the plaintiff must have suffered an injury that is serious. A serious injury is one that results in significant disfigurement; permanent loss of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury that prevents the injured person from performing substantially all of the material acts that the person usually performs.

On March 5, 2008, at approximately 5:00 a.m., the plaintiff was riding a bus owned and operated by defendant Metropolitan Suburban Bus Co. According to the plaintiff, the bus driver stopped short, causing her to slip and fall on the wet floor of the bus. Plaintiff claims that as a result of the fall, she seriously injured her lower back, right knee, and right ankle. About 8 months later, the plaintiff filed a lawsuit against the defendant. The defendant filed a motion for summary judgment dismissal of the claim.

Because the defendant filed the motion for summary judgement, it has the burden of showing that there are not material issues of fact and that as a matter of law, it is entitled to win the case. In this case, the defendant must show that the plaintiff did not sustain a “serious injury.” If the defendant meets its burden, then the burden shifts to the plaintiff to raise an issue of fact as to the existence of a “serious injury.” The court will view evidence in a light most favorable to the non-moving party, which in this case is the plaintiff.

Published on: December 16, 2014

Defendant in a medical malpractice action requests a reduction in the amount of damages awarded by the jury- Thomas v. Burack, 2009 NY Slip Op 32647(U) (N.Y. Sup. Ct. 10/21/2009)

by Stephen Bilkis

In this medical malpractice case the defendants requested that the court reduce the amount of damages for pain and suffering, loss of services, as well as the amount of damages awarded for pecuniary loss.

In April of 2003 decedent Thomas was admitted to Downstate Hospital for single bypass heart surgery and a mitral valve repair. However, instead, defendant doctor Burack performed three open heart surgical procedures on the decedent. According to the plaintiff, because of negligent monitoring and treatment of the complications related to the procedures, in September Thomas died in Downstate Hospital without ever leaving the hospital. Plaintiff, as the administratrix of the decedent’s estate, filed a medical malpractice lawsuit against defendant Burack. After a trial, the jury found in favor of the plaintiff, awarding $6 million for the decedent’s conscious pain and suffering, $13 million for the loss of the decedent’s services and society prior to his death, and $780,000 in pecuniary damages on the wrongful death claim.

Defendant Burack appealed. In addition to arguing that he was not liable for the decedent’s death, he also appeals the amount of the monetary judgements. He asserts that the $6 million for pain and suffering and the $13 million for loss of services are not reasonable. He further asserts that the $780,000 award for wrongful death was not proven.