New York Personal Injury Attorneys Blog

In Parente v 277 Park Ave. LLC, decided June 25, 2009, The New York Appellate Division, First Department granted plaintiff's motion for summary judgment under Section 240 of The New York State Labor Law.
The plaintiff was injured when he fell off a ladder he had placed on a desktop in an office leased by defendant Chase, while inspecting a malfunctioning booster fan over the desk. In rejecting the defendants' argument that the work was only routine maintenance The Court held:

Labor Law § 240(1) imposes absolute liability on owners, contractors and their agents for injuries to workers engaged in the repairing of a building or structure that results from falls from ladders or other similar devices that do not provide the intended protection against such falls (see Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 290 [2002]). It does not, however, apply to routine maintenance that is not performed in the context of construction or renovation. Replacement of parts that routinely wear out is considered maintenance, outside the purview of this section (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 882 [2003]). Where something has gone awry, however, requiring repair, § 240(1) is applicable (see Caraciolo v 800 Second Ave. Condominium, 294 AD2d 200, 201-202 [2002]; Franco v Jemal, 280 AD2d 409 [2001]).

No evidence was presented that the cause of the booster fan's malfunction was wear and tear on the power box motor and that only routine maintenance was required to fix the booster fan. Although the injured plaintiff stated this was sometimes a problem, neither he nor his supervisor actually knew the reason for the fan's breakdown, so he went to work on this particular weekend to investigate. An employee of the tenant testified that booster fans did not break down on a regular basis. Thus, plaintiff was not engaged in routine maintenance when he fell. Instead, he was attempting to repair a broken fan by first ascertaining the cause of the breakdown.

In Parnell v Montefiore Med. Ctr. decided June 23, 2009, The New York Appellate Division, First Department, reinstated the complaint in a Medical Malpractice Case against the defendant hospital which had been dismissed by the New york Supreme Court, Bronx County. While affirming the dismissal of the complaint against the defendant doctor the Court held as to the hospital;

"However, we find that there is an issue of fact as to the hospital's negligence. It was the hospital's duty to monitor the patient postoperatively, including monitoring the chest tube and the Pleurovac closed drainage system and all its component parts. The drainage system provided continuous suction to assist in drawing air and fluids out of the pleural space. The assertion of the hospital's expert that there was no evidence that the chest tube became detached from the suction is contrary to the record. Dr. Lonner testified that he noticed that the chest tube connection, specifically the connection between the patient and the canister attached in turn to the wall suction, was detached, and that he immediately re-attached the connection and proceeded with the resuscitation. Dr. Lonner also testified that if the tube became detached, air could go back into the pleural space and create a pneumothorax. This testimony alone, that an integral part of the drainage system had become detached and increased the risk of a pneumothorax, the very harm that befell the infant plaintiff, raises an issue of fact as to the hospital's negligence.

Further, plaintiffs' expert averred that it was good and accepted medical practice to check all the component parts of the chest tube and canister every time the patient was seen, at least once every hour, and that had the tube been properly monitored, it would not have become dislodged and the infant plaintiff would not have suffered a pneumothorax. He took issue with the conclusion of the hospital's expert that a mucus plug occasioned the infant plaintiff's respiratory arrest, pointing out that while there was evidence that the tube was dislodged when Dr.Lonner found the infant plaintiff, the medical record contains no evidence of a mucus plug."

.

Our partners, Christopher L. Sallay and Anthony H. Gair, successfully resolved a case involving a sheet metal worker whose pelvis was fractured when the unsecured arm of a sign became dislodged and struck him. The plaintiff received a $2,500,000 settlement following extensive negotiations at a private mediation.

On July 27, 2005, the 36-year old plaintiff had his pelvis fractured when a 1000 pound sign arm that was not secured fell off a sign being hoisted by the defendant. In this case, the Defendant was negligent for their failure to secure the arm post prior to hoisting the 30+ foot long sign. The defendant company claimed that they did not know that the arm post was not attached to the body of the sign. However, testimony established that they never checked or did anything to verify this prior to moving the sign. Notably, it took 4 men to lift the arm of the sign off of the injured plaintiff.

As a result of this accident, the plaintiff was taken via ambulance to a local Emergency Room and immediately underwent an open reduction and internal fixation of his pelvis.

Our Partner Ben B. Rubinowitz is The Chair of The NYSTLA Seminar Successful Examination of Expert Witnesses . The seminar will be held on June 9 and 16, 2009 from 6:00 to 9:00PM at 132 Nassau Street, N.Y., N.Y. The following topics will be covered;

- Direct and Cross of an Accident Reconstructionist

- Direct and Cross of a Life Care Planner

- Direct and Cross of an Orthopedist with emphasis on the herniated disc and knee injury case

- Direct of a Radiologist / How to work with radiographic studies to convincingly show the
extent of an injury

- Cross Examination of the "Independent Medical Examiner"

- Direct and Cross of an expert in a Medical Malpractice case

- Direct and Cross of an Elevator Expert

- The effective use of Exhibits

- How to deal with problem areas including the pre-existing injury, the professional testifier, the
non-responsive expert witness, use of authoritative texts and the hypothetical question

For more information click here.

By Anthony H. Gair

The human body contains forty six osteofacial compartments. Within these compartments are muscles, veins, arteries and nerves surrounded by tissue called fascia which is dense and unyielding.

The most common orthopedic setting for compartment syndrome is the closed tibia fracture for which the incidence is 3% to 17% 1. This discussion will be limited to compartment syndrome following tibia fractures.

The foreleg consists of four compartments known as the anterior, lateral, posterior and deep posterior compartments 2. Located within the anterior compartment are the motors for dorsiflexion of the foot and toes; the tibialis anterior, extensor halluces longus and extensor digitorum longus muscles. These muscles are innervated by the deep peroneal nerve which enters the anterior compartment after winding around the outer surface of the neck of the fibula. Located within the posterior compartment are the gastrocnemius, soleus and plantaris muscles which plantar flex the foot and flex the leg. These muscles are invervated by the tibia] nerve. The deep posterior compartment contains the flexor halluces longus, flexor digitorum longus, tibialis posterior and. popliteus muscles. These muscles plantar flex the foot (tibialis posterior), flex the leg and rotate it medially (popliteus), flex the big toe and flex and supinate the foot (flexor halluces longus) and flex the four small toes and plantar flex and supinate the foot (flexor digitorum longus). These muscles are innervated by the tibial nerve. Finally, the lateral compartment contains the peroneus longus muscle and the peroneus brevis muscle which pronate and flex the foot. These muscles are supplied by the superficial peroneal nerve 3.

Continue reading " MEDICAL MALPRACTICE: FAILURE TO DIAGNOSE COMPARTMENT SYNDROME " »

Following extensive settlement negotiations, our partner, Jeffrey Bloom, on May 8, 2009, obtained a settlement of $9,260,500 in a medical malpractice case in which it was alleged that the defendant doctors failed to timely diagnose a small bowel obstruction in a 37 year old woman. As a result of the defendant doctors' negligence, the plaintiff suffered multiorgan failure including renal failure that ultimately required a kidney transplant.

On December 20, 2003, the plaintiff presented at an emergency room complaining of vomiting and abdominal pain, but the defendants failed to do any diagnostic work-up repeatedly giving her pain medications which masked her symptoms. She was sent home with a diagnosis of a virus. She returned to the emergency room three days later with excruciating abdominal pain.

Although the doctors finally diagnosed her small bowel obstruction during this second emergency room visit, her surgery to relieve the obstruction was unnecessarily delayed for 16 hours. As a result of these delays, the plaintiff suffered extensive and severe injuries. She was hospitalized for a full year and then required in-patient rehabilitation for 6 months. She has undergone 16 surgeries and 15 hospitalizations to date.

The emergency room doctors who treated her during the two separate emergency room visits as well as their practice, the surgeon who delayed her surgery and his practice, and the hospital were named as defendants. The settlement was for the full amount of available insurance.

The names of the plaintiff and defendants have been omitted due to the confidential nature of the settlement.