In Hugh v. Ofodile, the First Department cut by 99% a jury verdict to a plaintiff who claimed injuries following a thigh lift procedure. The medical malpractice action alleged a lack of informed consent and deviations from accepted practice. The plaintiff claimed injuries to her genital area, including scarring and a flattening of the labia majora. The jury awarded the plaintiff $60 million in pain and suffering damages [$10 million for past pain and suffering and $50 million for future pain and suffering]. Upon Post Trial Motion, the jury’s verdict was reduced to $4 million [$1 million for past pain and suffering and $3 million for future pain and suffering].
The Appellate Division sustained the liability findings, although noting that “the evidence of a departure was not overwhelming.” In reducing the pain and suffering award to a total of $600,000 [$300,000 each for past and future pain and suffering], the Appellate Division relied on the medical records which repeatedly described the plaintiff’s genitalia as “normal,” and the absence of expert testimony linking any alleged pain to the thigh lift surgery. In a partial dissent, Justices Richter and Catterson agreed with the reduction of the past pain and suffering award, but would have reduced to the future award to $1.3 million based on, among other things, the plaintiff’s long life expectancy.
Monday, August 29, 2011
Friday, August 12, 2011
Today the Second Department issued an interesting decision in the case Fox v. Marshall. The Fox case arose out of the murder of Denice Fox by her neighbor the defendant Evan Marshall. Marshall had a history of substance abuse and psychiatric problems and had been treated numerous times at different drug abuse and mental health facilities. The plaintiff alleges that on the day before the murder, Marshall, who had voluntarily admitted himself to defendant SLS Residential Inc.'s substance abuse and mental health facility, received a pass to leave the facility to visit his mother. Marshall allegedly then purchased cocaine and spent the night at his mother's house. The next morning after allegedly driving his car into a woman jogging, he forced his way into Fox's house and killed her.
The plaintiff commenced an action in negligence and medical malpractice against SLS, its related corporate entities and various employees of those entities, as well as against Marshall and his mother. On the medical malpractice action against SLS and a psychiatrist that worked for SLS, the plaintiff claimed that they breached their duty to the public by failing to properly diagnose Marshall and giving him a pass to leave the facility.
Each of the defendants moved to dismiss the complaint. The Supreme Court denied the motions holding that a mental health facility may owe a duty to protect the public from the actions of an outpatient where there is evidence that the facility has the ability to control the patient's actions and has knowledge that the patient may be a danger to others. The Second Department modified dismissing only the medical malpractice causes of action and cause of action against Marshall's mother.
With respect to the medical malpractice cause of action, the Court assessed a physician's duty of care in light of it previous decision in Donohue v. Copiague Union Free School Dist. (64 A.D.2d 29 [2nd Dept. 1978]). Based on the duty analysis set forth in Donohue, the Court held that extending "a physician's duty of care beyond a narrow class of potential defendants, such as immediate family members, cannot be supported under any analysis of duty." Furthermore according to the Court, "'[w]hile moral and logical judgments are significant components of the [duty] analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that the legal consequences of wrongs [are limited] to a controllable degree'. Therefore, regardless of any sense of outrage which is evoked by the heinous actions of Evan Marshall, society's interest is not best served by concluding that a doctor who treats a patient, within the context of mental health, undertakes a duty to the public at large." (internal citations omitted).
Notably, last year we published an article in the New York Law Journal titled, "Defining the Duty of a Physician: Recent Developments" (Sept. 8, 2010). In that article we discussed several recent cases that had addressed the issue of duty in a medical malpractice case. In particular, we argued that the approach taken by the First Department in Cregan v. Sachs (65 A.D.3d 101 [1st Dept. 2009]) failed to properly treat the issue of duty as a legal question to be initially decided by the court. In contrast, today's Fox decision properly recognizes that the issue of duty is a legal question for the court and adopted an analytical approach that coincides very nicely with the analysis we advocated in our article.
It is also notable that the Court's implicit restriction of a doctor's duty to third-parties as limited to when those third parties are family members is similar to a limitation used by the Court of Appeals in Laratro v. City of New York (8 N.Y.3d 79 ). In Laratro, at issue was whether the City had a special relationship with the plaintiff sufficient to give rise to a duty of care where a co-worker called 911 on behalf of the incapacitated plaintiff and received assurances from emergency personnel that help was on the way. The Court of Appeals held that while a special relationship can be created where the caller is not the plaintiff, those circumstances should be limited to where the caller is a family member.
Tuesday, August 9, 2011
Below is the release from the Suffolk Bar:
"On August 17, 2011 at the Suffolk County Bar Association Headquarters at 5:30 p.m. there will be an informational session regarding a new pilot program concerning the early resolution of electronic discovery issues in medical malpractice cases. At a date to be determined, the parties to a medical malpractice assigned to PART 17 (Justice Peter H. Mayer's Part), will be required to complete an electronic discovery Order. The session will cover information regarding the substance of the Order as well as any related procedural issues. Comments and questions from the Bar will be appreciated. Please contact Jill at Justice Mayer's Chambers (631) 852-1760 or email@example.com."