New York Personal Injury Attorneys Blog

• United Airlines Settles Last 9/11 Wrongful-Death Lawsuit
  (New York Times, NY)


• 'Enchantment of the Sea' Cruise Ship Passenger Alleges Injury From
  Falling Piece of Shower
  (U.S. Dist. Ct., SD FL)


• Castroville Man Guilty in DUI Accident that Injured His Dad
  (KION, CA)


• Court Rules For University of Nebraska Medical Center in a malpractice case Hospital
  (WOWT - Iowa)


• Eureka resident dies in State Route 299 crash
  (Times Standard - Eureka, CA)


• Former deputy Pollard wrongful death suit, civil court begins
  (WNCT - Greenesville, NC)


• Jury awards Pennsylvania woman $23 million
  (The Morning Call - Allentown, PA)

  Posted by GGCSMB&R | Permalink | Email This Post

  Posted In: Personal Injury , Wrongful Death

  | Share

The New York Appellate Division, Second Department, has, once again, ruled that the scope of a Frye hearing regarding a plaintiff’s theory of causation in a medical malpractice action is limited only to whether or not the expert’s opinion is based on generally accepted scientific principles, as opposed to the expert’s own unsupported beliefs. Specifically, plaintiff is not required to produce medical literature that demonstrates causation under parallel circumstances, but rather, an expert’s testimony must be allowed where a synthesis of various studies or cases permits the expert to reach such a conclusion.

In Lugo v. New York City Health & Hospitals Corp.,decided on September 13, 2011, the infant plaintiff indisputably suffered spastic diplegia type cerebral palsy, resulting in developmental delays and confirmed by abnormal findings on an MRI of his brain. He had been born with excellent Apgar scores, but experienced tremors when he was 40 minutes old. He was ultimately diagnosed in the NICU with a blood glucose level of 3 mg/dl (40 mg/dl being normal). After being given an infusion of glucose, his glucose level rose to a normal amount approximately one hour and twenty minutes after his birth.

The theory of plaintiff’s case was that the hospital’s failure to timely diagnose and treat the infant’s hypoglycemia caused his brain injury. The hospital's attorneys successfully moved the Motion Court for a Frye hearing, supported by affidavits from its experts stating their opinion that a transient episode could not cause the type of brain injury seen on the infant’s MRIs. Following the hearing, the Motion Court precluded plaintiff’s experts from testifying with regard to their theory of causation, and dismissed the case, finding that plaintiff failed to provide “authoritative” medical literature that supported the theory that a “short episode” of hypoglycemia could have caused the infant’s brain injury.

The Appellate Division, Second Department, reversed and reinstated the action, ruling that the Court erred in requiring plaintiff to produce medical literature supporting its conclusion which involved circumstances parallel to those at issue in the case. Rather, proof that the plaintiff’s theory was based on accepted scientific principles involving medicine was sufficient to require denial of defendant’s motion.

Thus, even though plaintiff failed to produce a single case or study reporting occurrence of brain injury caused by one episode of hypoglycemia lasting 81 minutes or less, or any literature expressly supporting such a theory, plaintiff’s proof that the expert’s opinion was based on a synthesis of the medical literature required denial of defendant’s motion. Specifically, the Court found that plaintiff’s theory was based on several generally accepted scientific principles, namely that 1) hypoglycemia causes brain injury; 2) certain infants are more susceptible than others to neurological injury and 3) hypoglycemia is a toxic state with no safe level. In addition, the Court ruled that the medical literature relied upon by the experts need not be identified as authoritative. For these reasons, the Court reversed, stating that difference of medical opinions in the case must be determined at trial by a jury.

In a rather unusual case, the New York Appellate Division, Second Department held that there are limits to how far a defendant can go in examining a medical malpractice plaintiff during an Independent Medical Examination in New York. In the case D'Adamo v Saint Dominic's Home decided on September 13, 2011, the Second Department was confronted with a defendant whose examining doctor wanted to perform a host of invasive examinations upon a non-communicative plaintiff who suffered from both mental and physical disabilities. The 19-year old plaintiff was a resident of the defendant's group home as he suffered from mental retardation, cerebral palsy and autism. Through his guardian, the plaintiff alleged that the defendant's malpractice caused him to sustain severe damage to his colon resulting in loss of a length of his colon and a permanent colostomy bag.

It is well-settled law in New York that a defendant is entitled to a medical examination of a plaintiff who places his physical condition in issue. It is also well-settled that the medical examination cannot be invasive in nature. In this case, the examining doctor chosen by the defendant initially sought to perform a rectal exam on the plaintiff with a rigid sigmoidoscope. Counsel for the plaintiff rightfully objected on the basis that the examination sought was clearly invasive and posed risks beyond that of a simple medical examination given the physical and mental condition of the plaintiff. The defendant and the examining doctor suggested alternative examinations involving a digital rectal examination, a pediatric sigmoidoscope and possible sedation. The plaintiff's counsel again objected on the same basis. The Appellate Division, Second Department agreed that these examinations were too invasive and denied the defendant's request.

The following basic items should be included in plaintiff's initial Notice For Discovery and Inspection in an Elevator Accident Case occurring in The City of New York and adapted in other areas of the State. See below.

1. A copy of the contract with (Defendant Elevator Co.) pursuant to which they provided maintenance for the elevators at (Defendant Building Owners).

2. All work records for the subject elevator for a period of five (5) years prior to the accident alleged in the complaint herein.

3. All correspondence between (Defendant Owner) and the (defendant elevator company) for a period of five years prior to the date of the accident herein.

4. All estimates relating to the elevator from any and all contractors or others.

5. Inspection reports regarding the subject elevator prepared by (Defendant Elevator Co.). for five years prior to (Date of Accident).

6. The names of all (Defendant Elevator Companies).employees who inspected the elevator for the five year period prior to (Date of Accident).

7. Repair recommendations and/or proposals with regard to the subject elevator submitted by (Defendant Elevator Company)to (Defendant Owner)for the five years prior to (Date of Accident).

8. Service reports for the subject elevator prepared by (Defendant Elevator Co.) for the five year period prior to (Date of Accident).

9. Invoices submitted by (Defendant Elevator Co.) to (Defendant Owner) for the 5 year period prior to (Date of Accident).

10. All documents regarding all 2 year, 5 year and Local Law 10 testing done by (Defendant Elevator Co.) on the elevator at (Building Location).

11. The names of any and all inspection agencies utilized by the defendant, (Elevator Co.) to inspect the elevator at (Building Location). together with the names of the companies insurance carriers.

12. A complete copy of all applicable insurance policies and excess insurance policies, including all self-insured retentions and any other form of insurance afforded defendants which was in effect on the date of the accident herein.

13. (Defendant Elevator CO.) maintenance log for the elevator involved in the occurrence herein.

14. All records of any upgrades made to the elevator involved in the occurrence herein.

15. All bills, cancelled checks, invoices, and/or other proof of payment for 5 year, 2 year, 1 year and local law 10 testing.

If an Electric Elevator is involved ANSI /ASME Standard A17.2.1 should be consulted. If a Hydraulic Elevator is involved ANSI/ASME Standard A17.2.2 should be consulted.

The New York Elevator Accident Attorneys at Gair, Gair, Conason, Steigman, Mackauf, Bloom and Rubinowitz have years of experience representing those who have suffered injury and /or death in Elevator accidents in New York.

In Cordeiro v. TS Midtown Holdings, LLC, et al., The New York Appellate Division, First Department on September 15, 2011, granted plaintiffs' motion for partial summary judgment as to liability on their Labor Law § 240(1) claim.

The plaintiff sustained injury while preparing to remove elevator equipment from a building owned and managed by defendants by hoisting it through hatchway doors connecting a motor room with the floor below it. As plaintiff was sliding open the latch to the doors, they unexpectedly opened, causing him to fall to the floor below. Despite the fact that the doors were a permanent fixture of the building The Court in granting the motion and reversing the lower Court held;

"Plaintiffs met their prima facie burden of establishing entitlement to partial summary judgment on their Labor Law § 240(1) claim. Although the doors through which plaintiff fell were a permanent fixture of the building, they were not a "normal appurtenance," but rather, an access opening specifically built for the purpose of allowing workers to perform their work on the building elevators by hoisting materials to the building's motor rooms (Brennan v RCP Assoc., 257 AD2d 389, 391 [1999], lv dismissed 93 NY2d 889 [1999]). Accordingly, we find that the hatch in this case was a "device" within the meaning of § 240(1) (see id.; Crimi v Neves Assoc., 306 AD2d 152, 153 [2003]). Further, plaintiff did not step onto hatchway doors that opened accidentally (compare Bonura v KWK Assoc., 2 AD3d 207 [2003], and Rodgers v 72nd St. Assoc., 269 AD2d 258 [2000]). Rather, plaintiff was required to open the doors in order to hoist up the governor from the 19th floor hallway below. This exposed plaintiff to a gravity-related risk of falling into the hallway from the motor room (see Godoy v Baisley Lbr. Corp., 40 AD3d 920 [2007])."

The Court also rejected the sole proximate cause defense;

"In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident (see Gallagher v New York Post, 14 NY3d 83, 88 [2010]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n 8 [2003]; see also Miglionico v Bovis Lend Lease, Inc., 47 AD3d 561, 565 [2008]). Defendants did not submit any admissible evidence that plaintiff knew he should have used his safety harness under these circumstances, or that he knew his partner had a suitable 50-foot lifeline to which the harness could have been attached. While defendants argue that plaintiff could have tied his six-foot lanyard to a nearby beam or staircase, no evidence, expert or lay, was submitted that either of these options were appropriate anchorage sites (see Miglionico, 47 AD3d at 564-565). Accordingly, plaintiffs were entitled to partial summary judgment as to liability on their Labor Law § 240(1) claim."

Further, The Court refused to dismiss plaintiffs' 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(b)(1) regarding hazardous openings despite the fact that it was not specifically claimed until a third supplemental bill of particulars was served, without leave of court, after plaintiffs moved for summary judgment. The Court reasoned that;

"Supreme Court improperly dismissed plaintiff's Labor Law § 241(6) claim to the extent it is based on an alleged violation of Industrial Code (12 NYCRR) § 23-1.7(b)(1). Plaintiffs first alleged this particular Code provision concerning hazardous openings in a third supplemental bill of particulars served, without leave of court, after plaintiffs moved for summary judgment. However, plaintiffs' original bill of particulars claimed that defendants failed to adequately maintain the hatchway, causing plaintiff to fall when it suddenly opened. Accordingly, plaintiffs' belated identification of 12 NYCRR 23-1.7(b)(1) "entails no new factual allegations, raises no new theories of liability, and has caused no prejudice to defendant[s]" (Noetzell v Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 233 [2000]; see Cevallos v Morning Dun Realty, Corp., 78 AD3d 547, 549 [2010]). Further, the provision is sufficiently specific to support a Labor Law § 241(6) claim (see Luckern v Lyonsdale Energy Ltd. Partnership, 281 AD2d 884, 886 [2001]), and issues of fact exist as to whether it was violated."

The New York Construction Accident Attorneys at Gair, Gair, Conason, Steigman, Mackauf, Bloom and Rubinowitz have years of experience representing construction workers who have suffered injury and /or death in construction accidents in New York.

• San Francisco's Muni target of lawsuit by slain woman's family (San Francisco Examiner, CA)
• New York Hospital sues creator of website that discusses the 2003 death of his wife (Albany Times-Union, NY)
• The family of a Georgia man who stabbed his mother to death in a psychotic rage will be permitted to file a medical malpractice lawsuit against his psychiatrist. (CBS News, GA)
• A federal judge ordered a lawsuit by a former inmate to proceed against a private health care company and six staff members who worked at the jail. (Daily Telegram - Adrian, MI)
• Disabled workers at closed California Toyota plant reach severance settlement (San Francisco Chronicle, CA)

Our attorney Jeffrey Bloom will speak at the sold out Bridging the Gap program at the New York State Bar Association. He'll be lecturing on "Commencing a Civil Lawsuit in New York" on September 12th.

You can register for overflow seating here.

Our Partner Ben Rubinowitz will be lecturing at the DECISIONS 2011 Program at the Prince George Ballroom, 15 East 27th St. New York City on Saturday, September 10, 2011. This is the Flagship Program Sponsored by the New York State Trial Lawyers Institute. This annual event is designed to provide insight, information and current trends in the law to Practicing Attorneys throughout the State. Recognized as an expert in the Fields of Personal Injury, Products Liability and Medical Malpractice Cases, Mr. Rubinowitz will be lecturing on Trial Practice with specific emphasis on new cases and trends in the law including important topics such as:

SOCIAL NETWORKING
What are the affirmative and defensive uses of Social Networks?
What are the dangers for litigants?
How can private portions of social network sites be discovered and used to prove or disprove damage issues such as "loss of enjoyment of life?"
Is it proper for the defense to request authorizations to obtain full or partial access to Social Network sites?

SPOLIATION OF EVIDENCE
What is the proper remedy if a litigant fails to maintain essential evidence?
Should the defendant's answer be stricken or is an adverse inference charge sufficient?
What happens if Mammograms are "lost" by a doctor's office in a failure to diagnose breast cancer case?
Is that a violation of the New York State Education Law?

PRIOR INCONSISTENT STATEMENTS
What must be done before impeachment of a witness can take place?
Must the deposition be signed?
Can the deposition be videotaped?
Who can film the deposition?

PAYMENT FOR FACT WITNESSES?
Is it permissible for a medical expert who offers no medical opinion and is merely a liability witness to accept a large amount of money to testify?
How much is too much?
What are the ramifications to the case for payment of money to a liability witness?
Is it ethical?

Ben Rubinowitz will answer all these questions and more at his lecture. Mr Rubinowitz is a partner at Gair Gair Conason Steigman Mackauf Bloom & Rubinowitz and, in light of his success in representing severely injured individuals, was recently elected to the prestigious Inner Circle of Advocates. Mr Rubinowitz has lectured extensively throughout the State and Nation and has donated his time in teaching at more than 100 Continuing Legal Education Courses.