Monday, September 27, 2010

Another Example Of Med Mal Cases Getting Greater Scrutiny Before Trial

Granted the following case is in the context of a default by the plaintiff, but it does serve as an another example of an appellate court giving greater scrutiny to a plaintiff’s medical expert’s testimony then you might see post-trial.  In Siccoli v. Sasson, the plaintiffs failed to file a note of issue after an order directing them to file a note of issue within 90 days and warning that the action would be deemed dismissed without further order of the court if the plaintiffs failed to comply with that directive. The Second Department held that the order had the same effect as a valid 90-day notice pursuant to CPLR 3216, thus requiring the plaintiffs to provide a reasonable excuse for their default and demonstrate a potentially meritorious cause of action. The Court held that the plaintiffs’ medical expert’s affirmation was insufficient to demonstrate that the causes of action alleging medical malpractice and lack of informed consent were potentially meritorious because “the medical expert failed to establish that his opinions were grounded in facts appearing in the hospital or medical records.”

This next case does not break any new ground. We just thought it was an interesting story. In Singh v. North Shore Universty Hospital, “During jury deliberations in this wrongful death case, the parties entered into settlement discussions. Before the jury rendered a verdict, the parties entered into a stipulation of settlement on the record. The Supreme Court then discharged the jury. Apparently, when the exhibits available for the jury’s review were collected, it was discovered that the plaintiff’s attorney’s ‘typewritten summation notes,’ which were not in evidence, had been mixed in with the plaintiff’s decedent’s medical records, which were in evidence. Soon thereafter, the defendants moved to vacate the stipulation of settlement, and for a new trial.”

After concluding that the plaintiff’s attorney had intentionally included his notes with the medical records, the Court granted the defendants’ motion and vacated the settlement. The court also issued sanctions against the plaintiff’s attorney and directed that the matter be referred to the Grievance Committee. The Appellate Division, however, reversed finding, “The record does not establish that the defendants entered into the stipulation because they were aware that the plaintiff’s attorney’s typewritten summation notes had been made available to the jury.” If that conclusion is not entirely clear, you are not alone.

The Court also vacated and remanded the issue of sanctions for a hearing because the plaintiff’s attorney had not received prior notice that the Court was considering issuing sanctions.

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