Nancy Werner

On April 5, 2023, Bruce Brady secured a unanimous defense verdict in a medical malpractice case tried before Justice George Nolan in the Supreme Court Suffolk County.

The plaintiffs alleged that our client, a physician assistant working in a family practice, failed to appreciate the symptoms of an impending stroke in a 46-year-old woman and failed to immediately call an ambulance and refer her to a hospital for a complete workup.  Instead, the physician assistant merely provided the patient with a prescription for an outpatient CT scan.  The following day, the patient suffered a massive stroke that left her severely disabled.

Mr. Brady successfully argued that the physician assistant, despite the fact that he did not document his recommendation, advised the patient to go to the hospital, but the patient refused because she and her family had a cruise planned two  days later. The jury accepted the defense position and found no deviation from the standard of care.

On February 2,2023, Vincent Nagler secured a unanimous defense jury verdict before Judge Rolf Thorsen, Supreme Court Rockland County.

This wrongful death case involved a decedent that suffered from diabetes and end stage renal disease.  The plaintiff claimed that the decedent should not have been discharged from the emergency room after presenting with an open wound on his right foot. Plaintiff argued that the decedent had a diabetic foot wound which required immediate hospitalization and intravenous antibiotics.

The decedent subsequently returned to the hospital five days later and ultimately required an amputation of his right foot and left leg before he expired.

Mr. Nagler successfully argued that the decedent’s surgical interventions and death were the result of ongoing disease process, which included severe peripheral vascular disease, and not any deviation from the standard of care.  

Congratulations to partner, Mamie Stathatos-Fulgieri, on her recent unanimous defense verdict on behalf of her obstetrician-gynecologist client in Queens County Supreme Court.  

The case involved an elderly woman who experienced post-menopausal bleeding and suspected uterine cancer, requiring an endometrial biopsy. During the biopsy, the uterus was perforated and an infection followed, necessitating an exploratory laparotomy, total abdominal hysterectomy and bilateral salpingo-oophorectomy.  Mamie successfully argued this was a known and accepted risk of the procedure, despite plaintiff’s contention that the doctor went past the uterine wall during the biopsy and failed to recognize the perforation and timely treat it. Mamie effectively contended that during the procedure, the plaintiff did not offer any complaints to alert the doctor that there was any complication, and she was noted to have tolerated the procedure well.  The jury appreciated the argument and returned a unanimous defense verdict in favor of Mamie’s client.

#trialcounsel, #defenseverdict, #medicalmalpractice; #effectivelegalrepresentation

On December 6, 2022, Thomas P. Jaffa secured summary judgment in favor of his electrical contractor client and defeated the third-party plaintiff’s motion as to the client in Supreme Court, Suffolk County.  Plaintiff’s Labor Law action alleged a fall from a scaffold as a result of the scaffold wheel becoming lodged into an opening on the floor. 

The Court found there was no showing in the record that the client controlled the activities of the plaintiff on the project.  Therefore, any claim that they were negligent pursuant to the Labor law and thus required to indemnify the third-party plaintiff must be dismissed. 

With respect to contractual indemnification, the Court agreed with Mr. Jaffa that to require indemnification, the Court would have to speculate who was responsible for the work giving rise to the injuries.  The plaintiff did not know and could not identify the hole through photographs.  Third-party plaintiff could not demonstrate who performed the alleged work.  Further, third-party plaintiff having failed to demonstrate any of the prime contractors’ (including the client) responsibility, third-party plaintiff asked the Court to find that the injury arose from each contractor because they worked in the room.  The Court correctly held that there is no provision in the contract that allows for this and third-party plaintiff did not cite any legal precedence for same.  As such, third-party plaintiff’s motion for summary judgment as to contractual and common-law indemnification and contribution was denied and the Court granted the motion of our client dismissing the claims of contractual and common-law indemnification and contribution. 

Finally, the Court dismissed the cause of action for breach of contract as Mr. Jaffa submitted documentation demonstrating that our client had procured insurance as required. 

Partner, Neil Mascolo, wins summary judgment for Harleysville Insurance Company in a Declaratory Judgment action. Neil sought additional insured coverage for his client, a GC, in a Labor Law 240(1) and 241(6) case. The defendants were two separate insurers for two different subcontractors. The insurers denied the tender of coverage based on their argument that there was no written contractual requirement to procure additional insured coverage for the GC and owner. Both insurers also argued that their respective insureds played no role in the underlying accident. Neil successfully established that, not only was there a written contractual requirement for additional insured coverage for the GC and owners, but that both subcontractors played a role in the underlying accident. The court agreed and held that the defendant insurers owed both a defense and indemnity, on as primary noncontributory basis.

VBPNP is thrilled to Congratulate three of our new Associates on their achievement of passing the New York State Bar, Julia Combs, Kara Ognibene and Tyler Weingarten.  Congrats to all three!

VBPNP is very proud to announce that 19 of our attorneys have been recognized by the prestigious Super Lawyers®, a rating service which identifies those attorneys who have attained a high degree of peer recognition and professional achievement. No more than five percent of lawyers from a given state are selected. The following attorneys have been recognized as Super Lawyers in 2022:

On September 30, 2022, Dylan Braverman and Megan Lawless prevailed on a pre-answer motion to dismiss in favor of a Staten Island hospital in the Supreme Court, Richmond County. Plaintiff brought malpractice claims based on care provided in April 2020. The VBPNP COVID-19 Team argued that the claims must be dismissed, based on the broad immunity provided to medical care providers due during COVID-19 surge in New York City. Plaintiff countered that the EDTPA immunity was retroactively repealed based on an affidavit of a NY State Representative. The VBPNP COVID-19 Team countered that the plain language of the repeal was prospective, and that the wishes and desires of one State Representative cannot override the will of the legislature and the law. The Court agreed with the VBPNP COVID-19 Team and dismissed in a groundbreaking decision.

On July 7, 2022, Dylan Braverman, Megan Lawless and Chuck Faillace prevailed on a motion to dismiss in favor of a major Manhattan hospital in the Supreme Court, New York County. Plaintiff brought malpractice claims based on care provided in March 2020. The VBPNP COVID-19 Team argued that the claims must be dismissed, based on the broad immunity provided to medical care providers during COVID-19 surge in New York. In this seminal case, the court found that the EDTPA immunity applied warranting dismissal of all claims against. This was the first EDTPA immunity case decided in the influential Supreme Court, New York County.

On September 21, 2022, Gary W. Patterson, Jr. secured a unanimous defense verdict before Justice Thomas Zugibe of the Supreme Court, Rockland County.  Christian McCarthy served as second chair counsel to Mr. Patterson.  Plaintiff claimed the defendant, an orthopedic surgeon, negligently performed a biceps tenodesis, leading to nerve injury. The surgeon had misidentified a variant musculocutaneous/median nerve for the biceps tendon and anchored it to the humerus bone.  Post-operatively, the 62 year old female plaintiff was diagnosed with severe brachial plexopathy in her dominant arm  She underwent repair surgery, requiring sural nerve harvesting and grafting. The plaintiff was later diagnosed with complex regional pain syndrome, requiring multiple nerve blocks, further nerve repair surgery, and continued motor/sensory deficits in the median nerve distribution. 

Prior to opening statements, Appellate Counsel, Adonaid C. Medina, drafted a motion in limine to preclude introduction of evidence relating to the complex regional pain syndrome, nerve blocks and the need for further surgery, as these claims were not pled in the Bill of Particulars.  Justice Zugibe granted the motion after reviewing the papers and hearing Mr. Patterson’s oral arguments. 

Plaintiff’s Harvard trained orthopedic surgery expert argued that the defendant physician failed to perform a careful inspection of the structure before anchoring it to the bone.  The expert further opined that the surgeon negligently brought the nerve into the operative window, leading to the confusion.  Mr. Patterson vigorously cross-examined the expert, obtaining several critical concessions.  The defense called an orthopedic surgery expert who testified that the defendant surgeon reasonably concluded that the structure found in the operative window was indeed the biceps tendon.  The expert reasoned that because of the variant anatomy, the nerve was travelling laterally, placing it within the operative window.  It was also larger than normal, further contributing to the misidentification.  On damages, Mr. Patterson effectively challenged the plaintiff’s credibility on cross-examination, demonstrating to the jury that she was able to write legibly, despite claims to the contrary on direct. 

In closing arguments, plaintiff’s counsel sought $3 million in past/future pain and suffering, in addition to lost earnings.  The jury returned a unanimous defense verdict after a brief deliberation.