John L.A. Lyddane

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

January 13, 2017 | New York Law Journal

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara Goldberg write: Non-party depositions will add time and expense to the preparation of the defense for trial, and a corresponding benefit may not initially be obvious. The challenge is to determine in advance which non-party should be deposed.

By John L.A. Lyddane and Barbara Goldberg

16 minute read

October 18, 2016 | New York Law Journal

Medical Malpractice Defense columnists John L.A. Lyddane and Barbara D. Goldberg offer practical insights into defenses under CPLR Article 16, which substantially changed the consequences of joint and several liability 30 years ago. The change meant that the liability for non-economic loss of a "deep pocket" defendant found 50 percent or less at fault could be limited to that defendant's equitable share as determined by the jury. In terms of strategy, Article 16 should be asserted as an affirmative defense in the Answer in order to ensure the hospital's right to seek the apportionment at trial, and prevent any claim of surprise by the plaintiff and an argument that the defendant should be prevented from proving the defense at trial.

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

20 minute read

June 24, 2016 | New York Law Journal

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write that in New York, an expert who advances an unreliable theory cannot be cross-examined with medical literature unless he or she accepts the literature as authoritative. It may nevertheless be possible for defense counsel to demonstrate that even though the plaintiff's expert will not acknowledge an article as "authoritative," the expert nevertheless treats a particular publication as "reliable" so as to permit cross-examination.

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

27 minute read

March 29, 2016 | New York Law Journal

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write that in the nine years since the Court of Appeals decided 'Arons v. Jutkowitz', the approach to informal interviews of nonparty treating physicians has stabilized, and the courts have protected this valuable resource for the trial attorney.

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

31 minute read

February 18, 2016 | New York Law Journal

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write: Both the statutory framework for discovery and the applicable case law establish that New York has long favored open and far-reaching pre-trial discovery. Unfortunately, when it comes to the discovery of information in the possession of non-party physicians who have treated plaintiffs in malpractice cases, arbitrary limitations have often been imposed contrary to this liberal policy.

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

13 minute read

September 16, 2015 | New York Law Journal

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg discuss cases from other jurisdictions that highlight the flaws in New York's current approach of allowing recovery for the loss of a "substantial possibility" of a cure or better outcome, arguing that if recovery in these cases is to be allowed, the proper compensation to the plaintiff should be the dollar amount representing the limited opportunity that was lost.

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

13 minute read

September 15, 2015 | New York Law Journal

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg discuss cases from other jurisdictions that highlight the flaws in New York's current approach of allowing recovery for the loss of a "substantial possibility" of a cure or better outcome, arguing that if recovery in these cases is to be allowed, the proper compensation to the plaintiff should be the dollar amount representing the limited opportunity that was lost.

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

13 minute read

July 15, 2015 | New York Law Journal

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write that it is often claimed that, rather than "causing" a plaintiff to develop the particular condition that resulted in injury, a defendant physician failed to diagnose a condition or institute treatment at an earlier time, depriving the plaintiff of the opportunity for a better outcome. Confusion persists as to the plaintiff's burden of proof and the appropriate measure of damages in such cases.

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

13 minute read

July 15, 2015 | New York Law Journal

In their Medical Malpractice Defense column, John L.A. Lyddane and Barbara D. Goldberg write that it is often claimed that, rather than "causing" a plaintiff to develop the particular condition that resulted in injury, a defendant physician failed to diagnose a condition or institute treatment at an earlier time, depriving the plaintiff of the opportunity for a better outcome. Confusion persists as to the plaintiff's burden of proof and the appropriate measure of damages in such cases.

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

13 minute read