Recent Results

arthur-cohen

Arthur Cohen Obtains Defense Verdict in Medical Malpractice Action for Hospital

Plaintiff brought a medical malpractice action against his back surgeon and the hospital where his back surgery was performed claiming he was not a proper candidate for the surgery (plaintiff was morbidly obese) as well as negligence in its performance from misplaced pedicle screws and the failure to recognize post-operative cauda equine syndrome, which left the plaintiff with erectile dysfunction and the inability to feel the passage of urine or feces.

Prior to trial we obtained dismissal of several claims against the hospital. The claims which remained against the hospital for trial was that our x-ray technologist allegedly dropped the patient during transfer from a gurney to an x-ray table nine days post op, which allegedly caused internal bleeding that contributed to the plaintiff’s cauda equine syndrome.

After plaintiff’s expert testified that plaintiff was not a proper surgical candidate, that the surgery was improperly done and that codefendant failed to work up symptoms consistent with cauda equine syndrome, the codefendant surgeon testified he had done the procedure properly and that plaintiff never developed cauda equine syndrome post-discharge, but rather plaintiff had symptoms consistent with his deteriorating underlying spinal disease. The surgeon also put on experts in surgery, neuro-monitoring and urology.

Our surgery expert described how our x-ray technologists performed a proper guided transfer in the x-ray room and testified that the plaintiff suffered no injury at their hands. Our two x-ray techs had no recollection of the patient, but ably explained how they typically do guided transfers and denied ever dropping a patient.

Plaintiff subpoenaed two nurses to read their two notes into the chart referring to the alleged drop, but neither had any recollection of the patient.

On cross-examination Arthur Cohen obtained an admission from the plaintiff that by “drop” he really meant that he felt his back come into contact with the x-ray table.

After closing arguments plaintiff asked the jury for $2.1. The jury unanimously found no deviations from the accepted standards of care for either defendant.

 

Wayne E. Cousin

Wayne Cousin Obtains Defense Verdict in Favor of OBGYN

Baby was born without brain activity.

Wayne Cousin defended an OBGYN at trial who was alleged to have failed to timely order proper testing of a pregnant plaintiff with the resultant failure to diagnose vasa previa, a condition in which a baby’s blood vessels run near the internal opening of the uterus and can rupture during birth. 

The plaintiff’s pregnancy was without incident, with the exception of a 20 week ultrasound that showed a low-lying placenta, which was shown to have resolved in a subsequent ultrasound. The pregnancy progressed to its 34th week. Plaintiff developed bleeding and was brought to the hospital.  Upon arriving at the hospital, a code pink was called and a c-section was performed.  The plaintiff was diagnosed with vasa previa at the time of delivery.  The infant was delivered with no brain activity, and the body was kept alive for several hours on artificial respiration.

Wayne argued that our client ordered the proper prenatal testing at the appropriate times, and that the patient was referred to the hospital’s highly regarded maternal-fetal medicine department for that testing.  He further argued our client reasonably relied on the findings made by the MFM specialists.  He further argued that once our client was notified of the resolution of the low-lying placenta, no further testing regarding that condition was warranted, and our doctor did not deviate from good and accepted practice by not ordering further testing for low-lying placenta. 

Result: After the jury deliberated for 45 minutes, they returned a verdict in favor of the doctor.

 

Jon Lichtenstein

Jon D. Lichtenstein Obtains Summary Judgment in Labor Law 240(1) Case

Major victory for G&S Client CBRE, Inc.

Jon D. Lichtenstein recently obtained summary judgment dismissing a Labor Law case against our client CBRE, Inc. leaving several defendants to try the case.

This Labor Law case arose when a 40 lb. cable tray fell from a distance of 2-3’ onto the head of the 25 year old plaintiff. The plaintiff’s coworker was working with the cable tray on a ladder when the tray fell. The plaintiff was employed by a contractor USIS Electric, Inc. a subcontractor of Tishman Interiors, who was retained by the tenant AECOM Technology Corporation, to install audio visual wiring. Also in the case were the owners of the building and a company closely related to plaintiff’s employer.

Plaintiff underwent treatment for his head, neck, mid-back and low back and ultimately underwent lumbar disc de-compression surgery and lumbar fusion and he has received a recommendation for cervical fusion. He also alleged a traumatic brain injury and permanent disability.

We moved for summary judgment on the grounds that CBRE was not a statutory agent subject to the Labor Law and on the grounds that the tray that hit the plaintiff was not a falling object as that term is defined under the Labor Law.

Although the judge found that the cable tray was a falling object since it fell off of the ladder and did not drop from the hands of plaintiff’s coworker, he dismissed CBRE finding it was not a statutory agent under the Labor Law, and agreed there was no evidence the accident arose from CBRE’s negligence.

We argued that even though CBRE was the project manager and had many responsibilities including overseeing and administering the project, it had no power to control, supervise or direct plaintiff’s work. That CBRE’s sole employee associated with the job was only at the worksite weekly. Our witness expressly denied controlling, supervising or directing Mr. Tropea’s work and she expressly denied CBRE was responsible for site safety. We argued that CBRE could not have been responsible for safety without eyes, ears or a voice on site on a daily basis.

Plaintiff and certain codefendants argued that CBRE was a statutory agent since its contract required it to “oversee” the trades. We argued however, that mere “oversight” is insufficient since what is required is supervision and control.

We argued that the decision plaintiff was relying on Kenny v Fuller Co., 87 AD2d 183 (2d Dept 1982), was decided 23 years prior to the case we were primarily relying on Walls v Turner Constr. Co., 4 N.Y.3d 861, 798 N.Y.S.2d 351 (2005) and we argued that the Kenny case had not been cited by the Court of Appeals or the Appellate Division since the Walls case.

 

Patrick B. Mevs

Patrick Mevs Obtains Dismissal of Claim Based on Defective Service of Process

This was a claim for medical malpractice for the alleged improper performance of a cosmetic breast augmentation procedure (breast lift). We moved to dismiss the complaint based on plaintiff’s counsel failure to properly effectuate service on our client physician. Although the trial court refused to grant our motion and granted the plaintiff additional time to serve, partner Patrick Mevs, appealed the denial of the motion to the Appellate Division. When plaintiff failed to effectuate proper service a second time, he again moved to dismiss and again the trial court allowed plaintiff more time. Undeterred, Mr. Mevs perfected his appeal of both motions and after oral argument, the Court rendered a decision effectively dismissing the plaintiff’s complaint for failure to properly effectuate service. Since the statute of limitations had expired, this decision effectively ended the litigation in favor of our client.

Jon Lichtenstein

Second Department Affirms Dismissal of Ice Skating Rink Case – Water Does not Make Ice More Slippery

The plaintiff, an adult male, tried ice skating for the first time on a Spring day at our client’s ice rink. He stepped out on the ice and while still holding on to the boards took a second step and fell backwards onto his posterior breaking his ankle which required surgery. He alleged that his skate slipped because he had stepped onto a wet spot on the ice and also that he was given the wrong size skates.

The claim that wet ice caused someone to fall is a claim we have seen over the years. This time we decided to hire an expert to test the claim. Our expert did coefficient testing on wet ice and dry ice before and after cleaning with a Zamboni and scientifically determined there was no significant difference between the slipperiness of wet and dry ice.

Our expert who also was a bio-mechanical engineer also determined by the plaintiff’s testimony that the cause of the fall was not the ice, but the fact that the plaintiff had taken a step while still holding onto the boards which would have caused his weight to trail behind his skates leading to to his fall on his posterior.

Our expert also noted that when one is stepping as opposed to skating with ice skates the blades are not engaged with the ice in a stable manner and it is extremely difficult to keep one’s balance even for an experienced skater, let alone a first timer. Our expert also observed that plaintiff spent no time attempting to acclimate to the ice, but immediately stepped away from the boards. These factors explained the accident without reference to an dangerous condition.

At plaintiff’s deposition we got him to admit that he never felt any change in the consistency of the ice prior to falling and thus argued his claim that wetness caused his fall was pure speculation. In fact, we asked him if he knew for a fact that wet ice was more slippery than dry ice and he said that he thought so, but did not know it for a fact.

With regard to the claim that he was given the wrong size skates, we argued that he could not say at his deposition whether or not the accident would have occurred with smaller skates and highlighted his testimony that the skates were fine to walk on off the ice.

Despite plaintiff submitting his own expert affidavit to the court which concluded that our client was negligent for allowing the ice to be wet and for providing the wrong size skates, the trial court found plaintiff’s expert’s affidavit to be without foundation and granted our motion for summary judgment dismissing the complaint for his failure to establish any defect which proximately caused the accident. The Appellate Division heard argument and agreed.

A claim of wet ice no longer sets forth a prima facie claim of negligence in New York.

Steven H. Mutz

Steve Mutz’s Post Trial Motion to Dismiss Granted Against Dental Group – No Vicarious Liability

In this case for dental malpractice handled by Dental Malpractice Partner Steve Mutz, it was alleged that our client (dental group) was vicariously liable for improper bridge work performed by a treating dentist. Plaintiff alleged that had the dental group first provided her with periodontal treatment, her lower teeth would have been preserved and not reduced to stumps with permanent crowns.

After a trial, the jury rendered a verdict for which our client was found to be 50% liable.

We made a post-trial motion, which the judge granted vacating the verdict, on the basis that plaintiff had failed to establish that dental group was vicariously responsible for the acts or omissions of the treating dentist, either as an employee or under an agency theory. Specifically, she found that there was no evidence that the treating dentist was the subject to the direction and control of the dental group as to the manner or method of performing the work. Moreover, the judge determined that there was no evidence from which a jury could conclude that plaintiff accepted the services of the treating dentist in reliance upon the belief that he was an employee or agent of the dental group. Therefore, the judge wholly dismissed the action against our client.

Steven H. Mutz

Steve Mutz Obtains Dismissal of Med-Mal Wrongful Death Action for Lack of Jurisdiction

Plaintiff brought wrongful death action alleging medical malpractice of our client, an internist, based on his alleged failure to detect and treat the plaintiff’s brain and lung cancer.

We moved based on our defense our client was never properly served with process at her actual residence or place of business. Initial service was made at a hospital where she had formerly worked and later served at a condominium she owned, but had always leased to a tenant. Plaintiff never effectively refuted our claim of lack of service, and, in fact, cross-moved for our client’s proper address for re-service. The issue of service was of critical importance because the statute of limitations had expired.

With respect to the statute of limitations, plaintiff contended that our client was “united in interest” with other co-defendants and thus the Statute of Limitations did not expire against her. We contended that in order to prove defendants were “united in interest,” plaintiff had to demonstrate reciprocal vicarious liability. We argued that while our client’s medical group was vicariously liable for her, she, as an employee, was not vicariously liable for the torts of her employer and therefore there was no reciprocal vicarious liability.

The judge agreed and denied plaintiff’s request to extend the statute of limitations and granted our motion to dismiss based upon lack of personal jurisdiction. The Court noted that plaintiff made only one attempt to serve our client did not set forth any additional efforts made to obtain the correct address. As such, the judge noted that plaintiff did not demonstrate good cause for additional time under CPLR 306-b. The Statute of Limitations had already expired so this was, in effect, a permanent dismissal of the action.

Jon Lichtenstein

Jon Lichtenstein Obtains Dismissal of Skating Rink Case Based on Assumption of the Risk

MAN SPINNING WOMAN ON ICE AGAINST HER WILL WAS NOT RECKLESS CONDUCT SO AS TO FALL OUTSIDE ASSUMPTION OF RISK DOCTRINE

Plaintiff and her friend were ice skating when she observed a man skating in a dangerous manner skating the wrong direction and pushing other people on the rink. They continued to skate when this individual stopped the conduct. When after a half hour on the ice they saw this individual swinging a woman around him on the ice against her will they decided to leave the ice. As plaintiff was skating by the couple their hands released sending the male “flying” into her knocking her down and causing her to break her wrist.

We argued that that being knocked to the ice by another skater is a risk that ice skaters assume when they agree to participate in the sport of ice skating. Plaintiff was an experienced skater and continued to skate despite being aware the individual who knocked her down had skated inappropriately in a manner she considered dangerous. We argued that the exception to this doctrine, where the person is injured when struck by someone skating “recklessly” did not apply, because the conduct describe was not reckless and occurred too suddenly for the rink to have been able to prevent. We reviewed for the court historic examples of reckless conduct and argued that a man and woman holding hands and skating in circles did not approach the standard for recklessness. We also argued that the accident occurred so suddenly and precipitously that it could not have been prevented or anticipated by the rink.

We also argued that to the extent the plaintiff claims her accident was caused by “scratches” in the ice, such scratches were ordinary risks she assumed and neither plaintiff nor her friend could articulate how the scratches contributed to the accident.

We also argued that the landlord should be dismissed since it had no obligation to maintain the surface of the ice nor did it play a role with regard to rink security or regulating the conduct of the skaters.

The decision by Judge Genine D. Edwards dismissed the claims against all defendants on the grounds that plaintiff assumed the risk of being knocked down and on the alternative grounds that the event took place too quickly to hold defendants liable.

Lawrence S. Wasserman

Lawrence Wasserman Obtains Dismissal of Wrongful Death Claim on Behalf of New York Municipal Defendants

Lawrence S. Wasserman recently obtained dismissal of a wrongful death claim on behalf of The City of New York, New York City Police Department, New York City Fire Department and the City of New York Department of Health and Mental Hygiene in Supreme Court, Queens County.

The case, Lois M. Rosenblatt v. The City of New York, et. al. (Index No. 5798/2013), involved plaintiff’s-decedent, a then 96-year old female who was under the care of a private home health aide. When the decedent started choking on food fed to her by the home health aide, the aide called an ambulance and was provided instructions on what to do, but by the time the ambulance arrived, the decedent had become anoxic and fell into a persistence vegetative state before ultimately passing away.

Plaintiff alleged the City failed to give the home health aide appropriate instructions, failed to properly dispatch an ambulance and erroneously characterized the 911 call as DOA as well as other claims of negligence and medical malpractice.

We moved for summary judgment arguing the City was engaged in a governmental function when it provided 911 referral and emergency medical service responses, and thus, could not be held liable for its emergency actions unless it owed the decedent a special duty. We argued that no special duty existed since the City did not voluntarily assume a special relationship with the plaintiff’s decedent beyond the duty that is owed to the public generally.

The Supreme Court, Queens County granted our motion for summary judgment dismissing all claims when it agreed with our position that the City was engaged in a governmental function when it provided emergency medical services to the plaintiff’s-decedent and agreed that no special duty of care existed between the City and plaintiff’s-decedent based on the instructions provided to the aide.

Lawrence S. Wasserman

Lawrence Wasserman Obtains Trial Verdict in Fall Down Stairs Allegedly Due to Improper Handrail

Plaintiff was visiting our client when she fell down an interior stairway. Plaintiff contended that the stairway that had been replaced five years earlier by an unlicensed contractor, caused her accident because the contractor negligently failed to comply with provisions of the code that require handrails to have at least 1 ½ inches of finger space. The plaintiff asserted that because part of the molding ran up against the handrail, there was an absence of space to grab for several inches. The plaintiff maintained that as a result, she was caused to fall. Plaintiff put on the stand the expert engineer Nicholas Belizzi, PE. We argued that the stairs were safe and that there had been no problems with the stairs or handrail in the 5 years since being installed. We also contended that the plaintiff had regularly visited the premises, and had been on the stairs many times and argued that the condition of handrail would not have caused a fall. Upon submission to the jury, it returned a defense verdict on behalf of our client.