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December 09, 2024 | New York Law Journal

CPLR Article 16 Apportionment And Dismissed Defendants Medical Malpractice

The authors write "Over the past two decades, this column has on three occasions addressed the issue of whether defendants may seek apportionment under CPLR Article 16 with respect to former defendants in the action who obtained merits based dismissals of the claims against them on summary judgment. It has been our steadfast position that such apportionment is prohibited by collateral estoppel and law of the case doctrine. It seems axiomatic that once a defendant has been adjudicated to be not liable as a matter of law, that finding is the law of the case, for all purposes. Nevertheless, efforts by defense counsel to defend their clients or limit their liability by blaming their former co-defendants continue to persist."
14 minute read
September 30, 2024 | New York Law Journal

Pre-Impact Terror

"A decedent's emotional distress from the fear of impending death is very much a compensable aspect of post-injury pain and suffering," write Thomas A. Moore and Matthew Gaier.
16 minute read
August 08, 2024 | New York Law Journal

Decisions Apply Lavern's Law in Medical Malpractice Suits

"The statute begins to run under the discovery rule not when the patient was diagnosed with cancer, but when patient knew ... that there was negligence," write Thomas A. Moore and Matthew Gaier.
16 minute read
June 03, 2024 | New York Law Journal

Recent Appellate Decisions on Discovery

Over the past few years, there have been numerous decisions of interest from the Appellate Division involving issues related to discovery in medical malpractice and personal injury actions. These decisions demonstrate the continuing evolution of decisional law pertaining to various discovery issues.
12 minute read
April 01, 2024 | New York Law Journal

Bills of Particulars and Partial Summary Judgment

In its recent decision in 'Carroll v. Niagara Falls Memorial Medical Center', the Fourth Department held that partial summary judgment should be granted only as to theories or claims of malpractice that were not addressed, and that an expert affirmation submitted in opposition is not required to address every allegation in a bill of particulars.
13 minute read
Law Journal Press | Digital Book Connecticut Medical Malpractice: A Manual of Practice and Procedure, 7th Edition Authors: Joyce A. Lagnese, Calum B. Anderson, Frank H. Santoro View this Book

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February 05, 2024 | New York Law Journal

Spoliation of Evidence in Malpractice Actions

There have been a significant number of Appellate Division decisions addressing motions by plaintiffs in malpractice actions seeking sanctions against defendants for spoliation of evidence, as well as a few involving malpractice defendants seeking sanctions against plaintiffs. Those decisions are the subject of this column.
15 minute read
December 04, 2023 | New York Law Journal

Equitable Estoppel and Public Hospitals

When notice of a medical malpractice claim is not filed timely and the statute of limitations to bring a motion for permission to serve a late notice of claim expires, a court is not required to grant relief. The only avenue for a claimant who failed to file timely may be to argue the municipal defendant should be equitably estopped from seeking dismissal. The application of this doctrine to notices of claim and municipal hospitals is the subject of this article.
16 minute read
July 31, 2023 | New York Law Journal

Discovery of Surveillance Video in Medical Malpractice Actions

In personal injury and medical malpractice actions in which plaintiffs have alleged they sustained injuries that have impaired their abilities to engage in their normal activities, it is not uncommon for the defendants to hire investigators to surveille and make video recordings of the plaintiff that may appear to refute, or confirm, the nature and degree of the impairment.
15 minute read
June 05, 2023 | New York Law Journal

Certificate of Merit: Courts Continue to Grapple With Requirement

Although it is a fairly simple procedure, it has occasionally necessitated litigation over the impact of a failure to so certify, as well as the nature of the certification required in certain types of cases. Thirty-seven years after the passage of this requirement, the courts continue to grapple with these questions.
15 minute read
April 04, 2023 | New York Law Journal

Update on COVID Issues: Court Decisions Regarding Immunity

In their last Medical Malpractice column, Thomas Moore and Matthew Gaier discuss several court decisions related to immunity temporarily given to health care professionals and facilities during the COVID-19 pandemic.
15 minute read

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