Weinstein, Chase, Messinger and Peters, P.C. has been at the forefront of many important developments in the law in the fields of negligence and medical malpractice. Our firm has a history of success before the highest courts of New York, including the State’s highest court, the Court of Appeals and various departments of the Supreme Court, Appellate Division; some of the most noteworthy decisions are discussed in this section of our website. Many intricacies of medical malpractice can be gleaned from looking at these cases and we encourage you to do so.
Kallenberg v Beth Israel Hospital, 45 A.D. 2d 177
This is an important case dealing with the issue of causation. As many readers may be aware, it is not enough that a defendant in a malpractice case does something wrong – meaning, that the conduct argued to be negligent departs from the accepted standards of care. The defendant must be shown to have caused an injury.
In some cases, causing an injury can be less clear or more abstract than others. The Kallenberg case was particularly notable for announcing a new theory of causation in New York called “deprivation of a chance.” The best example of how complicated this problem can be is when there is the combination of an alleged negligent act and a disease process that is not the fault of any party that is also present and having an effect on the patient. Kallenberg deals with the issue of apportionment between the disease and doctor alleged to be negligent in terms of causing the outcome that leads to a lawsuit — or, phrased another way, how negligent does the doctor have to be when compared with the disease?
In Kallenberg, the patient died after a brain hemorrhage (her third) from an aneurysm. Before she died, when she was admitted to the hospital, it was determined she needed a particular medication to keep her blood pressure low and theoretically, this might keep the blood vessels in her brain from rupturing and bleeding. The doctor prescribed the medication but the drug was never given, despite the order. The patient was supposed to have a surgery to address the problem and this drug was supposed to be given prior to the surgery. The patient had another bleed and died.
The court found that the failure to give the drug as ordered was negligence, but the question was, did this negligence cause any harm when the patient had such a serious problem? The court found that defendant negligence in failing to give this medication deprived the plaintiff of a chance for effective treatment. The court said: “On the record before us, it is clear that the jury could find, as it did, that had Mrs. Kallenberg been properly treated with the indicated medication of choice, her blood pressure could have kept under control, and she might have improved significantly, even after August 22 to undergo surgery and make a recovery.”
Kletnieks v Brookhaven Memorial Assn., 53 A.D. 2d 169
In this case, a family filed a medical malpractice action against a pediatrician and the hospital at which he worked. They sought damages of more than $5,000,000 for the doctor’s negligence in causing severe damage to the baby’s brain and nervous system, specifically, a rupture to the amniotic sac, which caused him to become permanently crippled.
A hearing was held before a medical malpractice panel, which found that the pediatrician did not adhere to the accepted practices for the baby’s treatment, both during his time in and discharge from the hospital. The defendant attempted to make an appeal that would vacate this decision, but was denied.
Becker v Schwartz , 46 New York 2d 401
This is a landmark case dealing with what claims may be brought when a physician is thought to be responsible for depriving the parents of the opportunity for choice when it is known or should be known the parents will have a very severely damaged child.
In Becker, the parents had a Down’s Syndrome baby. In the case of Park v Chessin, the baby had a different condition, polycystic kidney disease and lived for only two and a half years. Both cases involved parents who sued a physician alleging “wrongful life” on behalf of the child, for emotional injuries suffered by the parents and for the costs associated with raising such a challenged child.
New York’s highest court dismissed the claim on behalf of the child (as opposed to the parents) and articulated the rule that in New York, there is no claim allowed for “wrongful life.” The court based this decision on the rationale – that certain kinds of injury cannot be claimed because it is not possible for human beings to ascertain what the injury actually is. In this case, the court found it cannot be found that the child was injured because to find an injury would be to engage in a comparison between life in an impaired state (being born and living with Down’s Syndrome) and nonexistence. The court ruled this is not a claim that the law is equipped to evaluate.
Having ruled that way regarding the child’s claims, the court did find that the physician owed a duty directly to the parents and that as a result of a breach of that duty, the parents did have a cause of action, in the form of a claim for the special damages sustained in raising this severely challenged child.
Johnson v NYCH&H, 49 A.D. 234
This is a very important case dealing with issues of PreTrial disclosure.
The primary importance of this case has to do with questioning hospital physicians in a medical malpractice case and how such physicians may be questioned. This is the case where the Appellate Division first held that a staff physician employed by a defendant hospital may be examined as an expert at a deposition. Johnson extended the rule that had been set forth in McDermott v Manhattan Eye Ear and Throat 15 NY 2d 20 that a defendant physician could be used at trial to establish via cross examination the standard of care. Johnson extended McDermott by holding that this same principle applied to depositions in the pretrial discovery phase.
The court in Johnson also held that the scope of pretrial examination is broader than what takes place at a trial. The court took note that CPLR 3115 (the Civil Practice Law and Rules, the rules which govern the conduct of litigants and their attorneys in civil cases) creates a statutory protection that the absence of making an evidentiary objection at deposition does not result in the objection being waived at the time of trial.
So, for example, if a question was asked of a witness and the attorney representing that client did not object to the question for whatever reason, if and when that question and answer were ever read from the transcript at the time of trial, the objection could be made at that time, without prejudice to it not having been made at the time of the deposition. The rule exists like this so that a questioner at a depostion can have a full inquiry without constant objection. If only the actual practice were as open as the CPLR and the case law suggest they should be.
Kladek v. St. Vincent’s Hospital,128 Misc 2d 985
Most readers are probably aware that there are time limits in which any lawsuit must be commenced. Of course, this also applies to medical malpractice cases. In fact, somewhat unfairly we believe, the time limits in medical malpractice cases are shorter than for other kinds of negligence cases. This happened as part of legislative packages seeking “tort reform.”
Generally, the statute of limitations is two and a half years from the date of the malpractice but there are so many exceptions and caveats and therefore, the reader should contact an attorney in order to determine what the statute of limitations, or time limit may be in any case that is being considered.
Kladek deals with the judicial determination of the time limit when there is a wrinkle that makes it more complicated to determine what the time limit is. The Kladek case was a further extension of the rule announced in Connell v Hayden by saying that a physician who was an employee of the hospital was united in interest with the hospital and the time limit to be applied related back to when the case was started against the hospital. Even though the individual physician was served after the statutory time limit had expired, the case was deemed timely because of the relationship between the physician and the hospital and the fact that the case against the hospital was timely.
Spadaccini v Dolan, 63 A.D. 2d 110
This case was very important for dealing with an issue that arises in many medical malpractice cases, the issue of judgment. In New York, if a physician exercises his or her best judgment and it turns out the judgment was incorrect, this is not negligence even if the result of being wrong is a “bad result.” This “judgment” rule came about because the law recognized that physicians are often put in situations where there are a variety of choices and perhaps, all of these choices had possible outcomes that might not be good for the patient. In such a case, the physician must be free to exercise his or her judgment without fear of second guessing or looking over the physician’s shoulder.
The Spadaccini case was important because it tried to set some limits on this protection by setting forth that the judgment rule would not protect a physician under all circumstances, but only if the physician had sufficient knowledge and skill to undertake the treatment in question and when making the decision, based his or her decision on information obtained as a result of a thorough and proper inquiry such as diagnostic testing. The physician must perform such actions as would allow us to say he or she did all they could to make the best decision possible. A doctor who proceeds without adequate investigation and testing is just guessing and in that event, is not exercising judgment. A bad guess is not protected and is negligence for which the doctor will be liable for the bad outcome.
American Transit Ins Company v Abdelghany ,80 NY2d 162
In this case, a New York resident was involved in an auto accident with an uninsured vehicle in New Jersey. His car was insured in New York under a policy from the American Transit Insurance Company. Since he was insured only in New York, he was denied coverage for the damages caused by the accident.
Initially, the Supreme agreed, citing a Sentry Insurance Company case. Afterwards, the resident moved for opposition on the grounds that the uninsured endorsement should also apply to accidents occurring in New Jersey. The court agreed and New York’s insurance law was modified to require that the provider insures the vehicle in any state.
Sullivan v Waldbaum Inc , 89 A.D. 2d 861(1)
This case of negligence involves an 84-year-old woman who sustained injuries after falling while pushing a shopping cart. Since it was nearly impossible to determine which shopping cart she was pushing, the woman was not entitled to an order of discovery and inspection.
Special Term acted carelessly in advising the defendant to comply with a notice of discovery for the shopping cart, and then ordering entry of a default judgment upon his failure to comply. Since the counsel of the defendant acted quite slowly over a long period of time, he was ordered to pay $1,500, as opposed to the original $50 for costs and disbursements.
Countrywide Insurance Co v Barrios, 43 NY 2d 831
In this case of insurance negligence, a man was injured in an automobile accident. Afterwards, he filed a claim for medical bills of $527.00. However, the insurance company argued that the bill was excessive, as $500 is the medical threshold, according to article XVIII of the Insurance Law. The court found that the dental charge of $475, combined with the hospital bill of $27.50 brought the injured man over the $500 limit.
The injured man then requested to recover the attorneys’ fees, which he is allowed to do according to the Regulations Implementing the Comprehensive Automobile Reparations Act. The arbitrator awarded the man with $475 in dental fees and $1,050 in counsel fees.