John L A Lyddane

September 17, 2018 | New York Law Journal

Medical Malpractice Defense columnist John L.A. Lyddane writes: The foreseeability defense is frequently blended into the issue of causation, but there are clear advantages to the defense where the distinction can be articulated.

By John L.A. Lyddane

7 minute read

July 16, 2018 | New York Law Journal

Since the amendment of Section 3101(d) in 1985, New York state has required that litigants in medical malpractice cases disclose the substance of the testimony they expect to produce through their expert witnesses at trial.

By John L.A. Lyddane

1 minute read

May 14, 2018 | New York Law Journal

Medical Malpractice Defense columnist John L.A. Lyddane writes: Section 1:75 of the Pattern Jury Instructions suggests by its very existence that the jury's attention should be drawn to what we commonly refer to as the “missing witness.” The very title of that section, which includes “Failure to Produce Witness,” has a pejorative tone. Why should the decision of counsel not to call a particular witness be termed a “failure” to do so when the determination of whose testimony is required is such a complex and subjective judgment?

By John L.A. Lyddane

8 minute read

March 16, 2018 | New York Law Journal

Medical Malpractice Defense columnist John L.A. Lyddane writes: The notice to admit will remain as a tool among others to be used in preparing the defense as cases approach resolution. The trial courts will be faced with issues resulting from its use, however infrequently.

By John L.A. Lyddane

8 minute read

January 12, 2018 | New York Law Journal

Medical Malpractice Defense columnist John L.A. Lyddane writes: The death of any party to a medical malpractice case during its pendency creates personal jurisdictional issues which require prompt attention in order to avoid the unnecessary expenditure of time and effort, or worse yet an unfortunate outcome.

By John L.A. Lyddane

8 minute read

November 20, 2017 | New York Law Journal

Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg write: The importance of the defendants' physical examinations of the plaintiff claiming injury in a medical malpractice case should not be underestimated.

By John L.A. Lyddane and Barbara D. Goldberg

18 minute read

September 18, 2017 | New York Law Journal

Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg write: Neither practicing physicians nor defense attorneys have much spare time, and it is unlikely that an 'Arons' interview will become a high priority task for a non-party provider. Even where a letter request is accompanied by a properly executed authorization, it is unlikely to produce an interview without further effort. What makes the further effort worthwhile is the prospect that the non-party witness is one of the least biased sources of information on a broad list of topics which are relevant to the evaluation and presentation of the defendant's position.

By John L.A. Lyddane and Barbara D. Goldberg

15 minute read

July 19, 2017 | New York Law Journal

Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg discuss continuous treatment and exploring the intent and beliefs of the patient at deposition to establish whether the statute of limitations should be tolled.

By John L.A. Lyddane and Barbara D. Goldberg

8 minute read

May 25, 2017 | New York Law Journal

Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg write: In an appropriate case, a patient's culpable conduct, as for example a failure to provide an accurate medical history or heed instructions for follow-up care, can result in an apportionment of fault against the plaintiff and a corresponding reduction in the damages recoverable, or at a minimum, provide the basis for a jury instruction on mitigation of damages. In addition, negligent conduct by the plaintiff which contributed to the condition for which treatment was sought may potentially be treated as culpable conduct.

By John L.A. Lyddane and Barbara D. Goldberg

25 minute read

April 04, 2017 | New York Law Journal

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg discuss the Noseworthy doctrine, that a plaintiff in a wrongful death action is not held to as high a burden of proof as in other actions because the deceased plaintiff is not available to recount his/her version of the relevant events, and its application in medical malpractice actions, where the decedent, even if he or she had survived, often would not have been in a position to provide any relevant information as to how the injury was caused, or whether there was a departure from accepted practice.

By John L.A. Lyddane and Barbara D. Goldberg

18 minute read