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A Brooklyn judge has exercised judicial discretion to hasten the trial for a paralyzed woman’s medical malpractice suit. New York state law guarantees trial-date preferences for all medical malpractice plaintiffs. Preferences are also provided to terminally ill plaintiffs and those over age 70. In some cases, judges combine the two preferences to award “multiple preferences,” pushing the cases to the front of a line of already expedited cases. Supreme Court Justice Ariel E. Belen’s decision to provide such “multiple preferences” based solely on a plaintiff’s desire to move from a nursing home to her own home is a rare example of a judge exercising such discretion when the patient’s health is not in jeopardy, according to medical malpractice experts. The case met the Appellate Division, 2nd Department’s requirement that the use of discretion be “compelling” and “fair and just,” Belen ruled. “There is no justification for keeping a plaintiff a virtual prisoner both in her body and in an impersonal nursing home when there is a chance that her life can be improved immeasurably by advancing the trial date so she can attempt to obtain the funds to be cared for at home,” Belen wrote in Peck v. Brookdale Hospital Medical Center, 38112/02. The injury at the center of the suit occurred just over three years ago. On Dec. 21, 2001, Gail Peck, then 46, went to the Brookdale Medical Center for the removal of a benign cyst, an elective outpatient procedure. She returned to the hospital the following day and again two days later. She has been in institutional medical care ever since. Court documents do not describe her injuries and the attorneys involved in the case declined to reveal the details of the allegations. But Peck claims that the hospital’s negligence left her nearly completely paralyzed. Three years after the alleged accident, she remains unable to speak and communicates by blinking her eyes. Her sister and guardian ad litem, Grace Peck, requested a trial preference on the grounds that a successful resolution would provide the funds necessary for Peck to be cared for at home, rather than in a nursing home. “The guardian ad litem persuasively contends that plaintiff will be happier and more comfortable at home surrounded by her friends and family than in a nursing home and that the only possibility for Ms. Peck to return home would be to end her reliance on Medicaid by expeditiously and successfully resolving” the suit, Belen wrote. The issue, according to the judge, was whether the plaintiff was “entitled to stack an additional preference” onto the preference guaranteed to all medical malpractice plaintiffs under CPLR 3403(a)(5). APPELLATE COURT GUIDANCE He turned for guidance to the 1989 case Green v. Vogel, 144 AD 2d 66. In Green, the Appellate Division, 2nd Department, ruled that state law did not guarantee an 86-year-old medical malpractice plaintiff a separate, additional preference based on her age. In its dicta, however, the court set forth circumstances in which the law would permit multiple preferences. “[W]e hold that a Trial Justice may, in accordance with the broad latitude granted by the Uniform Rules for the New York State Trial Courts and in the exercise of sound judicial discretion, facilitate the prompt trial of those actions which present extraordinary or exceptional circumstances in order to further the ends of justice,” the panel wrote. The circumstances in Peck merited such discretion, according to Belen. “This case presents a compelling scenario for an exercise of the judicial discretion contemplated by the Second Department in Green,” the judge wrote. He granted “an additional trial preference … to the extent that this matter be sent to the Medical Malpractice Readiness Part on Jan. 26, 2005, for trial.” While acknowledging that the order will have no direct effect on speeding the start of the actual trial — the date of which will be determined by the assignment judge for the medical malpractice board — Peck’s attorney, Bruce Kessler, said that the decision will result in earlier start date. “This will compress the time between the filing of the note of issue and the actual commencement of the trial,” said Kessler, the senior partner of the Manhattan plaintiffs’ firm Kessler & Kessler. Malpractice experts said that the ruling could advance the start date by approximately six months. “It sounds to me like the judge made an excellent decision, because there’s no prejudice to the defense and the need on the behalf of the plaintiff is genuine,” said medical malpractice expert Matthew Gaier, a member of the Manhattan-based Kramer, Dillof, Livingston & Moore. “That’s legitimate. That is a hardship.” The attorneys for Brookdale Hospital, Allison Graffeo and Lois K. Ottombrino of Wilson, Elser, Moskowitz, Edelman & Dicker, declined to comment.

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