Deposition Permitted Through Video Teleconferencing

In Guthartz v. First Wall St. Securities of NY Inc., the elderly and infirm plaintiff, who is a Florida resident, requested of the Court to order that his deposition in the Nassau County, New York case be conducted by video teleconferencing, and not in person as the general rule and custom. Defendant disputed plaintiff's inability to travel, claiming the "true purpose" of the motion was to avoid disclosing that plaintiff may not be of sound mind to continue the litigation. The court stated rebuffed defendant's argument that conducting the deposition by video conferencing would impair his ability to inquire as to plaintiff's competency or any substantive issue in the case. The courts are given wide discretion in discovery issues by New York law. The Nassau County judge decided that due to plaintiff's ill health, it would be an undue hardship for plaintiff to travel to New York and granted his request to have his deposition by live video conference from plaintiff's Florida home. www.foleygriffin.com

Medical Malpractice Suit for Pain and Suffering

In Crawford v. Beth Israel Medical Center, a medical malpractice action arose from coronary surgery. The action sought damages for conscious pain and suffering based on defendant surgeon's alleged departures from standards of good and accepted medical practice. During the surgery a pair of clips placed on plaintiff decedent's vein came off causing decedent to hemorrhage in the recovery room and require emergency resuscitation. Defendant surgeon moved to dismiss, contending that a clip can come off absent negligence and that he checked proper clip placement and installation because "[i]t's in the nature of the process to check repeatedly for the integrity of the conduit." The court denied defendant's motion, finding it was not readily apparent that defendant had checked the clips or that he did so adequately. http://www.foleygriffin.com/

Federal Judge Blasts Use of Statistics on Race to Set Damages

A Brooklyn federal judge slammed the use of statistics showing racial differences in life expectancy to determine damages for a catastrophically injured black man. The man was rendered a quadriplegic in the 2003 crash of the New York City-operated Staten Island Ferry. Last month, the judge awarded the man damages of $18.3 million. The city had sought to limit his damages on a number of grounds, arguing that his past criminal records as much as his race indicated a shorter life expectancy. The judge held that the consideration of statistical differences in life expectancy among races in determining damages would be discriminatory and unconstitutional. http://www.foleygriffin.com/

Wrongful Death of Incarcerated Woman

The family of a woman who died after five weeks in the Delaware County Jail filed a wrongful-death lawsuit against the Delaware County Jail in the 3rd District Federal Court, accusing jail officials of ignoring the medical and mental-health needs of the decedent until it was too late. When the decedent was first incarcerated, the jail personnel were informed that she suffered from mental illness and schizophrenia. During the 78 nursing shifts for the five weeks she was incarcerated before she died, her vital signs were taken only 17 times. And even though she was on suicide watch, the jail refused to provide her with psychotropic medication. When she had a seizure, jail medical staff waited nearly an hour and a half before calling 911. By the time ambulance arrived, she was non-responsive. The Delaware County Medical Examiner stated in the autopsy report that the cause of death was profound hypothyroidism, a condition which slows metabolism. While she was in jail, she did not receive any treatment for hypothyroidism. The family alleged in their lawsuit that her death was the result of a deliberate indifference by the jail personnel to her basic and serious medical and psychological needs and violated their own policies for caring for their inmates. http://www.foleygriffin.com/

Police Officer Liability

In Tutrani v. County of Suffolk, the Court of Appeals unanimously decided that a Suffolk County Police Officer was properly held 50 percent liable by a jury for an auto accident in which another motorist was injured. The officer was driving his vehicle on the Long Island Expressway in the middle lane during rush-hour traffic when he abruptly decelerated from 40 mph to a crawl while changing lanes. Plaintiff, traveling immediately behind him, slammed on her brakes and was able to stop without colliding with the officer's vehicle. However, seconds later, plaintiff's vehicle was rear-ended by another vehicle.

The jury found both the officer and rear driver 50 percent at fault for the plaintiff's injuries. On appeal, the Second Department held the officer was not liable because his conduct was not a proximate cause of the accident as plaintiff was able to stop before striking his vehicle. The Court of Appeals overruled the Second Department, holding that "it is irrelevant that plaintiff was able to stop her vehicle without striking the officer's vehicle." The highest court in the state went on to find that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle. However, the rear driver's negligence in rear-ending plaintiffs stopped vehicle does not absolve the officer's liability as a matter of law. Clearly, the officer's actions created a foreseeable danger that vehicles would have to brake aggressively in an effort to avoid the lane obstruction created by his vehicle, thereby increasing the risk of rear-end collisions. It is a foreseeable consequence of the situation created by the officer that a negligent driver may be unable to stop his or her vehicle in time to avoid a collision with a stopped vehicle in the middle of the highway. http://www.foleygriffin.com/

Inconsistent Expert Opinions Result in Denial of Summary Judgment

In Joseph v.Hummel, Ms. Joseph sued to recover for her injuries from a car accident. The defendants alleged that her injuries did not meet the "serious injury threshold" set forth by New York Insurance Law. They asked the Court to throw out the case and submitted affirmations of their expert doctors, Edward A. Toriello, M.D. (orthopedic surgeon) and Monette G. Basson, M.D. (neurologist), who stated that Ms. Joseph did not suffer a serious injury because her range of motion in the injured parts of her body were "normal". However, each doctor had a different opinion as to what "normal range of motion" was and had a different opinion on the actual range of motion the plaintiff had at the time of their defense medical examination. The judge stated that this was fatal to their application to dismiss the case and he denied their motion. www.foleygriffin.com

Lack of Preparation Botches Discovery

In Sapichino v. City of New York, a personal injury action arising from a trip-and-fall on raised city sidewalk flagstones, plaintiff requested that the trial court strike the city's Answer for failing to comply with the court's prior discovery orders. The plaintiff submitted this request six weeks after filing a Note of Issue and Certificate of Readiness, which informs the court that all pre-trial discovery has been completed. The rules of the trial courts state that you cannot seek, except under special circumstances, discovery after you file the Note of Issue and Certificate of Readiness. The problem here was the plaintiff's attorney filed the Note of Issue and Certificate of Readiness and inserted a paragraph in the Certificate that there was still a discovery and inspection response by the city that was outstanding. Plaintiff's counsel argued that this modification was "how [they] do it in Brooklyn" and therefore, plaintiff's right to post Note of Issue discovery. The court stated it knew of no "Brooklyn" exception to the Uniform Court Rules, and denied plaintiff's motion, ruling plaintiff failed to make the required showing under Price v. Brady of "special, unusual or extraordinary circumstances" warranting a deviation from the court rule of no post Note of Issue discovery. The court declined to strike the defendant City's Answer or allow the requested discovery. This case highlights the importance of finding an experienced trial attorney who understands how to comply with procedural rules for all the different courts he or she practices in. www.foleygriffin.com

Patient Injured by Home Health Care Aide

An elderly, quadriplegic man, in Garden City South was injured when his home health care aide assaulted him. The aide is accused of mistreating the patient, who uses a wheelchair and requires round-the-clock care, while employed as an aide by Ameriplan, a health care agency. The aide became irate while taking care of the victim, verbally harassing him, and then striking him with a fist upon his face causing severe swelling, pain and bruising. Afterwards, the aide locked the 68-year-old man in a room, removed the telephone, and left the residence for two hours without providing the victim with food, water, medication or care. The aide was criminally charged with endangering the welfare of an elderly person, unlawful imprisonment and assault. Not only could the aide be held civilly liable for the injuries sustained by the victim, so could Ameriplan if they knew, or should have known, that the aide was prone to violence. http://www.foleygriffin.com/

Intentional Act Ruled an 'Accident' For Victim in Car Insurance Claim

In State Farm Mutual Automobile Insurance Company v. Langan, a New York City lawyer was walking on Seventh Avenue near 32nd Street when a car, driven by a man seeking to kill as many pedestrians as possible, jumped the sidewalk, striking him and fracturing his leg. The car continued to barrel down the avenue, hitting 19 people in total.

In a precedent setting case, the Appellate Division, Second Department ruled that the incident was deemed an "accident" for no-fault insurance purposes, even though the driver's actions were intentional. The court held that the issue of whether an automotive "event" is an "accident" should be viewed from the perspective of the victim, not the errant driver. The court went on to state that insurance "coverage is unaffected by whether the tortfeasor acted intentionally in causing the injury, provided only that, from the viewpoint of the insured, the event was 'unexpected, unusual and unforeseen' and not brought about by the insured's own 'misconduct, provocation, or assault.'". He was entitled to recover benefits under his insurance policy's personal-injury protection endorsement, as well as its death, dismemberment and loss of sight provisions, because the sections did not exclude intentional acts. However, the lawyer was not covered by his car-insurance policy's uninsured-motorist or his supplemental uninsured-motorist provision, which explicitly excludes intentional acts. http://www.foleygriffin.com/

Lawsuit Dismissed Against Driver Caught in Car Chase

In Pisciotto v. LaRocque, a driver, caught in the middle of a speed race that ended in a three-car accident, was found not to be negligent in a lawsuit brought by his passenger. The driver was going down Town Path Road in Glen Cove when two vehicles pulled up alongside, flanking him. The court found that the testimony plainly showed a speed race, where both racers simultaneously attempted to pass the driver. One of the racers collided with the driver, then hit the other racer before crashing into a tree. The court held that mere speculation that the driver failed to take accident avoidance measures, such as braking or steering away, was not enough to keep him in the lawsuit. http://www.foleygriffin.com/

Independent Medical Examination Does Not Create a Physician-Patient Relationship

Doctors Doing Medical Exams for Insurance Companies Better Be Careful

In the case of Bazakos v. Lewis, plaintiff was injured when his car was rear-ended by another. After the accident, he commenced a lawsuit against the other driver, seeking to recover money damages for his injuries. As a result of the lawsuit, plaintiff was required to appear at the office of an orthopedic surgeon, who had been hired by the insurance company of the other driver. During the medical examination, the doctor took the plaintiff's head in his hands and forcefully rotated it while simultaneously pulling, which caused the plaintiff personal injury.

Approximately two years and eleven months after the medical examination took place, plaintiff commenced a second lawsuit against the doctor, alleging that the doctor "committed negligence toward" him during the medical examination. The orthopaedic surgeon moved to dismiss the lawsuit because the plaintiff filed it after the two and one-half year statute of limitations period for medical malpractice claims, and not the three-year statute of limitations for regular negligence. The Appellate Division, 2nd Department, held that because a physician-patient relationship did not exist where the medical examination was conducted for the purpose of rendering an evaluation for an insurance company in a lawsuit, the two and one-half year statute of limtations was not applicable and the three years statute governed. http://www.foleygriffin.com/

Lawsuit Filed on Behalf of Estate of Teenager

A Harborfields High School senior drowned in shallow water while he practiced holding his breath at the YMCA of Long Island's Huntington facility. Two lifeguards were on duty when the accident happened, as well as an aquatics coordinator. A lawsuit has since been commenced by the student's estate against the YMCA and some of its employees for "reckless, careless and negligent . . . life guarding and supervision of the 4-foot deep pool." The lawsuit also alleges the YMCA and their employees were "reckless, careless, and negligent in the ownership, operation, management, maintenance, control, life guarding and supervision of the subject premises."

The family believes that the lifeguards failed to stop the boy from a life-threatening activity and, when he was in distress, were inadequately prepared to respond in a timely and proper manner. In our opinion, the estate will have an uphill battle being successful on this case. Many times, courts will reject these claims before the family has a chance to present their case to a jury, based upon the fact that the injured party, or in this case this case, the decedent, "assumed the risk" of injury or death.