Personal Injury Case Law

State Appellate Court Upholds Dismissal of Malpractice Claim Against Public Hospital

July 6, 2016 | Lebowitz & Mzhen

The New York Court of Appeals, the highest appellate court in the state, recently released a decision that affirmed two lower court decisions dismissing a plaintiff’s medical malpractice claim for the plaintiff’s failure to timely serve a notice of claim on the defendant, as required by statute. The plaintiff’s claim alleged that the defendant provided substandard prenatal care to the plaintiff’s mother while he was in utero, and that the defendants committed additional malpractice while delivering the child, resulting in permanent injury and disabilities. As a result of the most recent court of appeals decision, the plaintiff and his mother will be unable to recover damages for the alleged negligence of the defendant.

The Plaintiff Was Born Prematurely by an Emergency Cesarean Section

The plaintiff in the case of Wally G. v. NY City Health and Hospitals Corporation was born at a hospital operated by the defendant in June 2005. According to the facts discussed in the appellate opinion and an accompanying dissenting opinion, complications arose in the pregnancy, and an emergency cesarean section was performed to deliver the baby prior to the expected delivery date. The complaint filed in the case alleged that the defendant failed to act quickly enough upon noticing the complications of the pregnancy and then negligently failed to treat the fetal distress. As a result of the defendant’s alleged negligence, the plaintiff developed several neurological and cognitive disorders, including cerebral palsy, seizures, and problems with speech.

Plaintiff’s Mother Serves a Notice of Claim After the 90-Day Time Limit

Approximately 18 months after the plaintiff was born, his mother filed a notice of claim with the defendant, stating her intention to seek compensation for the medical malpractice that allegedly resulted in the plaintiff’s injury and disabilities. Under New York municipal law, medical malpractice claims against a public medical provider such as the defendant require a notice of claim to be issued no later than 90 days after the alleged malpractice occurred. After the plaintiff filed the medical malpractice lawsuit against the defendant in 2008, the plaintiff requested the court grant leave to file a late notice of claim, but the court did not grant the motion. Shortly afterward, the lawsuit was dismissed based on the plaintiff’s failure to meet the 90-day notice-of-claim requirement.

Plaintiff’s Procedural Mistake Results in Dismissal of Premises Liability Case

June 30, 2016 | Lebowitz & Mzhen

Earlier this month, a Rhode Island appellate court issued a written opinion affirming the dismissal of a plaintiff’s premises liability lawsuit based on the fact that he initially failed to provide the correct date of the injury and then failed to attend a hearing on the defendant’s motion to dismiss. In the case, Santos v. Laikos, the court held that there were no extenuating circumstances excusing the plaintiff’s failure to object or attend the hearing, so dismissal was proper.

The Facts of the Case

Back on April 30, 2011, the plaintiff was injured in what he described as a “melee” that occurred at the defendant’s bar. Just short of three years later, on April 18, 2014, the plaintiff filed a lawsuit against the owners of the bar. However, in his complaint, the plaintiff mistakenly claimed that the incident occurred on November 4, 2010.

Rhode Island has a three-year statute of limitations in premises liability cases, and so the defendant electronically filed a motion to dismiss, arguing that the statute of limitations had run by the time the plaintiff filed the lawsuit. The defendant also mailed a copy of the motion to the plaintiff. The court scheduled a hearing on the defendant’s motion, but the plaintiff failed to appear. The court granted the defendant’s motion.

Court Finds Nursing Home Employees May Be Liable for Failure to Refer Resident to Specialist Physician

May 23, 2016 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of California issued a written opinion holding that a doctor, nursing home employee, or other person with a custodial relationship to an elderly person may be held liable based on that person’s failure to refer the resident to a medical specialist when the situation calls for such a referral. In the case, Winn v. Pioneer Medical Group, the plaintiff was ultimately unsuccessful in establishing the necessary relationship between the defendant and the elder, but the court did note that liability could be appropriate in some situations.

The Facts of the Case

The plaintiffs in the case were the surviving family members of a woman who had died while in the care of the defendant doctors. The elderly woman was being provided outpatient treatment by several doctors. Neither of the doctors made a referral to a specialist, although some facts were evident that would suggest such a referral was appropriate. Ultimately, the elderly woman passed away from blood poisoning. The plaintiffs then filed a claim of elder abuse against the doctors, claiming that it was negligent of them to not refer her to a specialist.

The defendants asked the trial court to dismiss the case against them, claiming that only care custodians can be held liable for elder abuse. The lower court agreed. However, on appeal to the intermediate appellate court, the decision was reversed in the plaintiffs’ favor. The defendant then appealed that order to the state’s supreme court.

Plaintiff’s Failure to Strictly Comply with Notice Requirement Results in Dismissal of Case

May 16, 2016 | Lebowitz & Mzhen

Earlier this month, the Wisconsin Supreme Court issued an opinion dismissing a plaintiff’s case against a state employee, based on the plaintiff’s failure to strictly comply with the notice requirements outlined in the state’s statute governing cases against governments and government employees. In the case, Sorenson v. Batchelder, the issue was whether personal notice of the lawsuit provided to the state’s attorney general complied with the requirement that notice be provided through certified mail.

The Facts of the Case

In October 2010, a state employee rear-ended a vehicle that was pushed into the plaintiff’s vehicle, causing property damage and personal injury to the plaintiff. Three months later, the plaintiff served notice of the claim to the attorney general in the state’s capitol. After investigating the claim, the state government issued a check to the plaintiff in the amount of $241. Not satisfied with the compensation, the plaintiff then filed a negligence lawsuit against the state employee, seeking a fuller award.

Before the case reached trial, the defendant asked the court to dismiss the case because the plaintiff failed to strictly comply with the state’s notice requirement, which required that notice of a claim be delivered by certified mail. The lower courts determined that service was proper, but the state employee appealed to the highest state court.

Motions for Summary Judgment in Washington, D.C. Courts

May 9, 2016 | Lebowitz & Mzhen

In many personal injury and medical malpractice cases, the bulk of the litigation actually occurs before a case reaches the trial phase. Much of this pre-trial litigation occurs over discovery-related matters, when the parties essentially argue over which evidence will be considered at trial and which evidence should be kept out. After the evidentiary issues have been resolved, either party is free to move for summary judgment based on the evidence presented to the court thus far in the proceeding.

In Washington, D.C., the Rules of Civil Procedure explain that summary judgment is appropriate when “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Simply put, this means that the party filing for summary judgment is claiming that the other party cannot win the case, even if the court resolves all issues in their favor. The credibility of a witness or document is not at issue in a summary judgment proceeding.

Of course, if the evidence does present an issue of material fact, the moving party cannot legally be entitled to summary judgment, since that issue must be resolved by a fact-finder (either by a judge or jury) at a trial. A recent medical malpractice case out of Indiana illustrates the point well.

Jury’s Verdict for Plaintiff in the Amount of Zero Dollars Upheld on Appeal

March 9, 2016 | Lebowitz & Mzhen

Earlier this month, a Nebraska appellate court issued a written opinion regarding an appeal filed by a personal injury plaintiff who was awarded a zero-dollar award after a jury trial. In the case, Lowman v. State Farm Mutual Auto Insurance Company, the court determined that, while a zero-dollar award normally requires clarification from the jury, in this case it was clear what the jury intended, so no clarification was necessary.

The Facts of the Case

Lowman was a passenger in a car being driven by her husband when the car was struck by an uninsured driver. The Lowmans’ uninsured motorist carrier was State Farm, so they filed a claim with the company. State Farm admitted that the uninsured driver was liable but disputed the issues of causation and damages. The case proceeded to trial on these two issues.

During the pendency of the trial, the Lowmans withdrew their claim for lost wages and admitted that all medical bills had been paid. Thus, the only claim remaining was that for her pain and suffering. At trial, Lowman’s attorney told the jury “If you think [Lowman] is exaggerating, there should be no verdict. If you think she’s a liar, a cheat and a fraud, there should be no verdict.”

Court Finds Little League Not Liable for Dangerous Conditions on Field

February 23, 2016 | Lebowitz & Mzhen

Earlier this month, the Rhode Island Supreme Court issued an opinion in a case, holding that a little league association was not liable for a parent’s injuries sustained when she fell and broke her leg in three places after stepping in a divot in the field. In the case, Carlson v. Towne of South Kingstown, the court reasoned that the little league association was not the owner of the land and did not owe the plaintiff a duty of care to inspect the field prior to its use.

The Facts of the Case

As noted above, the plaintiff was injured when she stepped in a divot in the grass, directly adjacent to a playing field where her son’s little league game was held. After her injuries, she filed a lawsuit against several parties, including the little league association.

The plaintiff presented a witness who was familiar with the field. The witness, another parent and a former assistant coach of the team, testified that divots were a routine problem on the field. He also explained that the divot was not actually on the field itself but was off to the side of right field, on the way to the dugout.

Lessor of Crane Involved in Serious Accident Found Not Liable for Plaintiff’s Injuries

February 16, 2016 | Lebowitz & Mzhen

Earlier this month, one state’s supreme court heard a case brought by a man who was injured by a crane when an intermittent malfunction caused the crane to shift forward, crushing the man’s foot. In the case, Carson v. ALL Erection & Crane Rental Corporation, the court determined that, while the lessor did have a duty to inspect the equipment prior to leasing it to the plaintiff’s employer, that duty did not require an inspection so exhaustive as to discover the difficult-to-discover defect.

The Facts of the Case

The plaintiff was the “eyes and ears” for a fellow employee who was the designated crane operator. The plaintiff and the crane operator were instructed to move the crane a few miles from its current location. Along the way, the two encountered a section of road with overhead wires, and precautions were taken in crossing the road. However, as the crane was taken out of drive, it shifted forward, causing wood planks underneath where the plaintiff was standing to rise unexpectedly. The plaintiff slid down the wooden planks and under the crane, where his foot was crushed. It was later amputated.

After the accident, the crane was inspected by both ALL Erection, the defendant lessor, as well as the plaintiff’s employer. Ultimately, the crane was repaired. It was determined that the cause of the crane’s unexpected shift was “a failure of the solid‐state electrical circuitry.” However, it was not until a very thorough examination that the error was found.

Which Jurisdiction’s Law Applies in a Personal Injury Case?

January 26, 2016 | Lebowitz & Mzhen

The United States has two separate sets of laws that govern the citizens of each state. There is federal law and state law. Each state has their own law, and as long as it does not conflict with the federal law in that same area, the state law will apply to many cases. This is especially true in personal injury cases, since most personal injury cases do not give rise to federal court “jurisdiction.”

The term “jurisdiction” essentially means the power to hear a case and impose judgment over the parties to the case. For example, a court in New Mexico will not likely have jurisdiction over a case arising between two Marylanders who get into an accident on a Maryland road. In that case, Maryland would likely be the most proper venue for the lawsuit.

As noted above, each state has the ability to create its own set of laws, and it stands to reason that the law in every state will be a little bit different. This can create major consequences for accident victims in certain cases because under one state’s law a victim’s case may be strong, but under another state’s law the case may be much weaker. This also can have implications regarding the applicable statute of limitations, or the time in which the accident victim has to file their lawsuit against the defendant.

Court Determines Physicians Have a Duty to Third Parties to Warn Patient of Potential Effects Medication May Have on Their Driving

December 31, 2015 | Lebowitz & Mzhen

Earlier this month, a New York appellate court handed down an interesting decision regarding the duty physicians have to warn their patients that the medication they are providing them may affect their driving. Ultimately, the court determined that physicians do have a duty to those people other than the patient to warn the patient that the medication they were just administered could affect their driving.

The Facts of the Case

In the case, Davis v. South Nassau Communities Hospital, the plaintiff was a bus driver who was injured when another vehicle crossed a double-yellow line and collided with the plaintiff’s bus. That other driver was allegedly under the influence of narcotic medication that she was given while at the defendant hospital. The injured bus driver filed suit against the treating physicians as well as the hospital employing them.

At trial, the defendants asked the court for early dismissal, arguing that because they did not owe a duty to the third-party plaintiff they could not ultimately be held liable. The lower courts agreed and dismissed the case.