Medical Malpractice

  • New York Law Journal | Analysis

    Evidentiary Use of Learned Treatises

    By Thomas A. Moore and Matthew Gaier | August 2, 2021

    In a recent column in the New York Law Journal, Professor Michael Hutter raised the question of whether New York should adopt FRE 803(18), the Federal Rule of Evidence pertaining to the admissibility at trial of statements contained in treatises, periodical or pamphlets. Hutter's position was that adoption of the rule would be "a progressive step forward." In this edition of their Medical Malpractice column, Thomas Moore and Matthew Gaier explain why they "respectfully disagree."

    15 minute read

  • New York Law Journal | Analysis

    Defending the Duty of the Emergency Room Physician

    By John L.A. Lyddane | July 19, 2021

    In his Medical Malpractice column, John L.A. Lyddane addresses how the legal duty of the emergency room physician remains a question of law across a spectrum of treatment scenarios. Those providers continue to require careful attention from their counsel to limit their involvement and exposure to the circumstances in which the law has determined that they owe a duty to the patient.

    8 minute read

  • New York Law Journal | News

    Manhattan Lawyer Suspended for Failing to Undergo Court-Ordered Exam for Possible Physical or Mental Infirmity

    By Jason Grant | June 23, 2021

    The Appellate Division, First Department on Tuesday suspended Patricia M. De Grace-D'Aliasi from practicing law, writing that it had ordered her to undergo the medical exam based upon an attorney grievance committee motion that itself was "based on [De Grace-D'Aliasi's] irrational conduct during and after a medical malpractice trial in which she represented herself as well as her conduct before the AGC."

    4 minute read

  • New York Law Journal | Analysis

    Update on COVID-19 Issues

    By Thomas A. Moore and Matthew Gaier | May 28, 2021

    Last spring, when New York was the epicenter of the COVID-19 pandemic, Medical Malpractice columnists Thomas A. Moore and Matthew Gaier wrote a series of articles focusing on two issues affecting malpractice litigation that flowed directly from the state's response—immunity to health care professionals and facilities, and the toll on the statute of limitations. Both of those matters have undergone modifications over the past year. Those changes and their impact are the subject of today's column.

    1 minute read

  • New York Law Journal | Analysis

    The Cause-in-Fact Medical Malpractice Defense

    By John L.A. Lyddane | May 21, 2021

    In his Medical Malpractice column, John L.A. Lyddane discusses the cause-in-fact defense, which is describes as underemployed in medical malpractice cases tried in New York courts. The distinction between cause-in-fact, also referred to as "actual cause", and proximate cause is frequently important enough to present this defense opportunity for the malpractice defendant where situationally appropriate.

    1 minute read

  • New York Law Journal | Analysis

    Custom and Practice Revisited

    By Thomas A. Moore and Matthew Gaier | April 5, 2021

    In this edition of their Medical Malpractice column, Thomas A. Moore and Matthew Gaier again address the issue of the admissibility of physicians' testimony as to their custom and practice, also known as habit evidence, in light of two recent Appellate Division decisions that provide new insights into the admissibility and applicability of such evidence.

    1 minute read

  • New York Law Journal | Analysis

    Impeachment of Experts by Medical or Scientific Literature

    By Alan W. Clark | March 29, 2021

    This article will explore the subject matter of impeachment of expert witnesses by the use of medical or scientific literature containing contrary opinions during cross-examination.

    1 minute read

  • New York Law Journal | Analysis

    The Error in Judgment Defense Is Alive and Well

    By John L.A. Lyddane | March 15, 2021

    In his Medical Malpractice column, John L.A. Lyddane writes that the error in judgment defense "is as valuable as it ever was in protecting the physician defendant from the other 'experts' in the profession who are retained for second guessing."

    1 minute read

  • New York Law Journal | Analysis

    Liability for Transmitting COVID-19

    By Thomas A. Moore and Matthew Gaier | February 1, 2021

    In their Medical Malpractice column, Thomas Moore and Matthew Gaier discuss both historical and modern precedent that helps answer the current issue during the COVID-19 pandemic as to whether people who infect others by engaging in negligent conduct may be held liable for the damage they cause.

    1 minute read

  • New York Law Journal | News

    Appeals Court: Continuous Treatment Doctrine Does Not Apply to Plaintiff's 2 ER Visits Over 2.5 Years

    By Jason Grant | January 29, 2021

    The plaintiff's "return to Montefiore [Medical Center] in 2015 constituted a resumption of treatment rather than a continuation thereof insufficient to toll the statute of limitations," wrote the Appellate Division, First Department court.

    1 minute read

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