Not unlike recent appellate history, last year saw appellate decisions in dozens of medical malpractice cases. This column reviews some of those that may have an impact on malpractice litigation, or are otherwise noteworthy.
The Court of Appeals rendered decisions in two malpractice actions in 2010. In Gibbs v. St. Barnabas Hosp., —N.Y.3d—, 2010 WL 5105037 (2010), a divided Court dismissed a medical malpractice action based on a violation of a conditional order of preclusion and a failure by the plaintiff to show a reasonable excuse for the default and a meritorious action. The plaintiff in that case failed to respond to the defendant’s demand for a bill of particulars. After 10 months without a bill being served, the defendant moved to compel plaintiff to respond to that and other discovery demands. The defendant also sought sanctions under CPLR 3042 and 3126 dismissing the complaint or precluding the plaintiff from offering evidence of the defendant’s negligence at trial. While the motion was pending, the plaintiff served a bill—this was now a year after the demand was served.
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