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New York Law Journal | Analysis
By John L.A. Lyddane | March 16, 2020
The prompt evaluation of and response to venue issues when they arise is important to the defense of medical malpractice claims. In his Medical Malpractice column, John L.A. Lyddane discusses the parameters governing the resolution of those issues.
By Jason Grant | February 19, 2020
"Plaintiff's expert ... opined that, had decedent been given a chest X-ray prior to October 2012, the lung cancer would have been discovered before it entered Stage IV, and, thus, she would have had a greater chance of survival," the Appellate Division, First Department wrote in allowing certain claims to go forward against the Manhattan medical group and two of its physicians.
New York Law Journal | Analysis
By Thomas A. Moore and Matthew Gaier | February 3, 2020
The theory behind the common law "emergency doctrine" is that a person in such a situation cannot reasonably be held to the same accuracy of judgment or conduct as someone who has an opportunity to reflect, even if the decision turns out to be wrong. The need for the emergency doctrine has been called into question in recent years based on principles of comparative negligence and the ability of juries to apportion fault. As Thomas A. Moore and Matthew Gaier discuss in this edition of their Medical Malpractice column, while some states have abolished the doctrine altogether, New York has not gone so far.
New York Law Journal | Analysis
By John L.A. Lyddane | January 17, 2020
In his Medical Malpractice Defense column, John L.A. Lyddane discusses the current effort before the Legislature to modify the New York State approach to the "speaking agent" exception to the exclusion of hearsay at trial, writing that "the change would affect the adjudication of medical malpractice claims and is of particular concern to any health care organization whose employees render medical care in the course of their employment."
New York Law Journal | Analysis
By Thomas A. Moore and Matthew Gaier | December 2, 2019
In most medical malpractice actions, the defendants and other medical professionals who rendered the care and treatment that is the subject of the lawsuit do not have specific recollections of all of the events. Therefore, they often testify about their custom and practice. In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier discuss a handful of significant decisions on the issue of the admissibility of evidence of habit or routine practice.
New York Law Journal | Analysis
By John L.A. Lyddane | November 18, 2019
In his Medical Malpractice Defense column, John L.A. Lyddane discusses the value of exploring a culpable conduct defense when faced with an informed consent claim from a patient who may share responsibility for an unsatisfactory medical procedure outcome.
By Jason Grant | October 25, 2019
The long-running case focuses on allegations that medical professionals negligently performed an ultrasound on a pregnant mother despite her placenta previa diagnosis, allegedly resulting in a placental hemorrhage that caused her child brain damage and developmental delays.
By Kenneth B. Danielsen and Steven I. Heyligers | October 23, 2019
In personal injury lawsuits, it is often the case that a plaintiff will undergo surgery during the course of litigation, without giving any prior notice to the defendants. Whether unintentional, or tactical, two decisions in the Supreme Court, including one issued earlier this year, may serve to change this practice, at least in cases where the defendants have demanded the right to conduct a presurgical independent medical examination (IME).
By Jason Grant | October 10, 2019
Defendant NYC Health + Hospitals had submitted an affirmation from a pediatric neurologist, who in part had "opined that imaging of plaintiff's brain was not indicated when he presented to Lincoln Hospital and North Central Bronx Hospital because he had suffered only one seizure with fever," the panel wrote.
New York Law Journal | Analysis
By Thomas A. Moore and Matthew Gaier | September 30, 2019
In their Medical Malpractice column, Thomas A. Moore and Matthew Gaier discuss a recent trial level decision that addressed what appears to be a new approach by some health care providers to impede potential malpractice actions before rendering treatment. In a detailed analysis reminiscent of the decisions assessing exculpatory releases, Justice Sanford N. Burland concluded that the challenged provisions were unenforceable.
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