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 Plaintiff countered that the EDTPA immunity was retroactively repealed based on an affidavit of a NY State Representative.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.
Congratulations to Mamie Stathatos-Fulgieri for a Defense Verdict in Supreme Court, Queens County where she represented a hospital and the Emergency Department staff in a case involving the suicide death of a 20-year-old male seven hours after being discharged from the Emergency Room (ER). Plaintiff claimed that his son should have been admitted in light of a suicide gesture made prior to the presentation and his substance abuse the days prior to being brought back to the ER, coupled with his admission to an in-patient psychiatric unit a month earlier for two suicide attempts. Ms. Stathatos-Fulgieri effectively established that a proper examination and evaluation was conducted by the psychiatric team in the ER and their decision to discharge the patient was within their professional judgment and thus, they cannot be held liable. During the cross examination of plaintiff’s expert psychiatrist, Ms. Stathatos-Fulgieri was able to compel the expert to admit that she impermissibly relied, in part, on hindsight reasoning when rendering her opinion. The judge appropriately charged the jury with the hindsight charge and not deciding the issues retrospectively. The jury returned a verdict in favor of the defense.
Mamie Stathatos-Fulgieri
Partner
(516) 282-3355 ext. 109
Hon. Ruth B. Kraft, Chair of the Employment Law Group, was honored at the Top Lawyers of Long Island Awards Gala on September 13, 2022. The gala, celebrating Long Island’s legal leaders, recognized her achievements as a trusted advisor to business organizations and successful litigator. Judge Kraft leads the VBPNP team defending wage/hour and prevailing wage suits, employment misclassification claims and discrimination actions. A member of the Federal Bar Council employment litigation committee as well as the Nassau County Bar Association employment law and alternate dispute resolution committees, she is an accomplished mediator who has lectured to business and professional groups throughout the United States. VBPNP is proud to recognize Ruth’s most recent recognition; she has previously been honored as a Long Island Power Lawyer and by the Jewish Lawyers Association, Yashar-The Judges and Lawyers Section of Hadassah, and the New York State Association of Administrative Law Judiciary for her contributions to the profession. In 2022, she was named a Super Lawyer, designated by her peer group as among the top 5 percent in her field. She holds a Juris Doctor degree from the Yale Law School and a certificate in alternate dispute resolution from Harvard Law School.
Ruth B. Kraft
Partner
(516) 282-3355
On September 14, 2022, Dawn Bristol secured a defendant’s verdict for a Staten Island property development and management company in a premises liability case tried in Richmond Supreme Court before the Honorable Lizette Colon. Plaintiff claimed that the defendant, as owners of the subject property, failed to properly maintain a stairwell and failed to properly clean water that leaked from a standpipe onto to a stairwell landing, which resulted in a greasy substance ordinarily contained in standpipe water being tracked into the hallway of premises leased by a non-party tenant, which caused the plaintiff to slip and fall. The defenses included that the common areas of the building for which the defendant was responsible were maintained in good and proper condition, that the defendant appropriately remediated the standpipe leak, that the hallway where the alleged fall occurred was a private area maintained by the tenant, and that there was no nexus between the small water leak onto the stairwell landing and plaintiff’s fall in the tenant’s hallway the following day. The jury found no negligence on the part of the landlord in the liability portion of the trial eliminating the need for a damages trial. Injuries alleged included rotator cuff tear with failed subsequent surgery, multiple cervical and lumbosacral disk herniations with nerve impingement, multiple spinal injections, lumbar discectomy, and subsequent lumbar spinal fusion. Plaintiff also claimed to have permanent disability, chronic cervical and lumbar radiculopathy, chronic back and arm pain, and require ongoing pain management treatment, therapy, and further surgery.
Dawn Bristol
Partner
(516) 282-3355
On September 1, 2022, Rani Kulkarni and John Barker secured summary judgment in favor of their surgeon client in Supreme Court, Nassau County. Plaintiff alleged medical malpractice regarding the care and treatment surrounding the plaintiff’s bilateral mastectomy and breast reconstruction performed by co-defendant practitioner and the surgeon client, as well as postoperative care which the plaintiff claimed led to breast implant failure. The VBPNP team argued that there were no viable claims against the surgeon. Specifically, the VBPNP team established that the client did not deviate from accepted practice, that the care rendered was not a proximate cause of plaintiff’s alleged injuries, and that plaintiff’s lack of informed consent claim failed because the surgeon had clearly explained the risks, benefits and alternatives to the procedure with the plaintiff.
The Court agreed finding that the record was devoid of any evidence to substantiate plaintiff’s theories of liability, thus averting the need for the client to continue with litigation and risk reputational exposure.
Ralph Vincent Morales secured a unanimous defense verdict on behalf of a local hospital on Tuesday, July 26, 2022 following a two week jury trial in Suffolk County before the Hon. Joseph A. Santorelli. The matter involved allegations that the hospital staff failed to consider a musculoskeletal origin for the chest pain with which the then-52-year-old female plaintiff presented to the emergency department on August 10, 2019 and that the hospital staff also departed from the standard of care by ordering a cardiac catheterization after a coronary CT angiogram showed evidence of multi-vessel blockages. The cardiac catheterization was performed at a separate facility and found no evidence of atherosclerosis.
Plaintiff produced evidence that the hospital knew that plaintiff underwent a previous coronary CT angiogram six months earlier that showed no evidence of coronary artery blockages and therefore should not have performed another coronary CT angiogram; rather, the hospital should have worked up plaintiff for musculoskeletal pain. Plaintiff also claimed that the cardiac catheterization resulted in a frozen right shoulder and diminished use of the right arm and hand. Mr. Morales successfully argued that coronary artery disease outweighed musculoskeletal pain and that an additional coronary CT angiogram was warranted because the plaintiff presented to the hospital with a history of three days of intermittent chest pain and with five risk factors for coronary artery disease. Once the diagnostic study showed evidence of coronary artery disease, a cardiac catheterization, which is the gold standard for diagnosing coronary artery disease, was indicated. Mr. Morales also successfully argued that the plaintiff had previously existing degenerative changes in her right shoulder that caused the frozen shoulder and right arm deficits.
On July 11, 2022, Seema Palmerson, John W. Barker, and Gemma Kenney secured summary judgment in favor of their hospital client in Supreme Court, New York County. Plaintiff alleged dental malpractice regarding the care and treatment surrounding the plaintiff’s ORIF of a right parasymphysis and closed reduction of a left subcondylar fracture by co-defendant practitioner and the hospital client. The VBPNP team argued that there were no viable claims against the hospital. The VBPNP team established that defendants did not deviate from accepted practice, that their actions or inactions were not a proximate cause of plaintiff’s alleged injuries, and that plaintiff’s lack of informed consent claim failed, in part, because plaintiff’s expert failed to state that a reasonably prudent person would not have undergone the procedure.
The Court agreed finding that the record was devoid of any evidence to substantiate plaintiff’s theories of liability. As a result, Justice Erika Edwards concluded that the hospital client was entitled to dismissal of all claims.
On May 11, 2022, in Supreme Court, Queens County, Arthur Yankowitz with the assistance of Daniel O’Connell secured a Directed Verdict at the close of plaintiff’s case on behalf of an Emergency Services Group and a physician. Plaintiff’s counsel alleged a failure to timely diagnose and treat a pneumothorax during an Emergency Room presentation which resulted in a more complicated and invasive surgical repair (a 6 day hospitalization) and Post-Traumatic Stress Disorder (PTSD). Plaintiff’s pulmonary expert and psychiatric expert could not causally relate plaintiff’s claimed injuries to the alleged failure to timely diagnose the pneumothorax approximately thirty one hours sooner. In addition, the experts were effectively cross-examined regarding plaintiff’s prior MVA case where plaintiff made similar psychological claims.
