On October 17, 2023, Gemma Kenney and Seema Palmerson won summary judgment in a medical malpractice case brought against a major New York Hospital and four individually named physicians. Plaintiff’s claims related to the treatment of plaintiff’s labor and delivery, specifically concerning the administration of Cytotec and Pitocin given during plaintiff’s labor. Through the use of deposition testimony of numerous party witnesses, together with documentary evidence in the form of medical records, the VBPNP team established a prima facie entitlement to judgment by showing that there was no departure from good and accepted medical practice. The Court granted dismissal of all of the claims asserted against the Hospital, as well as the individually named physicians, citing to the arguments posited within the expert affirmations submitted in support of defendants’ motions. The Court found that the motion papers sufficiently established that the individually named physicians and Hospital staff were acting at the direction of the private attending physician, and there was no evidence that the Hospital staff or physicians were making independent decisions regarding the care and treatment of the plaintiff. The Court found that plaintiffs’ experts’ opinions were insufficient to create a question of the standard of care attributable to the Hospital staff or individually named physicians. As a result, the Court found that all causes of actions asserted against the Hospital and individually named physicians were severed and dismissed.
On September 15, 2023, Alexandra Zerrillo and Jeffrey Nichols secured a summary judgment win on behalf of a Brooklyn venued nursing home client. Plaintiff alleged medical malpractice, negligence, and violations of the Public Health Law against the nursing home defendant based upon an alleged failure to prevent the development and deterioration of numerous pressure ulcers. The Court initially ruled that the defendant successfully established entitlement to summary judgment. Plaintiff’s counsel submitted opposition papers, supported by an expert affirmation, however, the court ruled that plaintiff failed to raise a triable issue of fact as the Court agreed that plaintiff’s expert relied on facts that were contradicted and unsupported by the records and further, plaintiff’s expert failed to address the decedent’s numerous comorbidities in their opposition.
The COVID-19 team has obtained dismissal of a third COVID-19 action brought against a major New York City facility. This COVID-19 team obtained pre-answer dismissal of extensive COVID-19, malpractice, Public Health Law and Gross Negligence claims asserted in a 55-page Complaint against the New York City facility. Plaintiff sought significant publicity and submitted sworn testimony from a sitting New York State Legislator in support of this claim. On October 10, 2023, Dylan Braverman engaged in spirited oral argument against a motivated and well-prepared New York City plaintiff’s counsel. Hours later, the Court agreed with the COVID-19 teams’ argument that these claims are subject to the EDTPA COVID-19 immunity which was passed in response to the unprecedented and catastrophic COVID-19 surge that swept through New York in early 2020.
Partners Dylan Braverman and Brian Andrews obtained dismissal of all claims brought against the firm’s Staten Island nursing home client. The nursing home was among the hardest hit in the darkest days of the COVID-19 surge in New York City. Plaintiff claimed that the nursing home’s infection control failures allowed the patient to be exposed to COVID-19, and that the nursing home improperly treated the COVID-19 patient once he came into contact with the virus. The COVID-19 team moved to dismiss pre-answer based on the COVID-19 immunities afforded to healthcare providers. After oral argument, the court dismissed all claims.
On September 25, 2023, Arthur Yankowitz and Brian DiPentima won summary judgment in a medical malpractice case brought against a major New York Hospital. Plaintiff alleged medical malpractice/negligence against several acute care hospitals and nursing homes in New York City for failure to properly care for decedent’s existing pressure injuries (bedsores) and for failing to prevent the development of new pressure injuries during multiple episodes of care spanning 2013 – 2014. Plaintiff claimed that the patient sustained multiple very large Stage IV and unstageable ulcers as a result of inappropriate care. Following oral argument, the Court found that plaintiff’s expert was not qualified to render an opinion as to the standard of care in acute care hospitals or on pressure ulcers; thus, her expert opinions were “of no probative value”. Even if the Court found that the expert was qualified to render the opinions, plaintiff nevertheless failed to establish the existence of any issue of triable fact. The Court further noted that plaintiff raised new claims in opposition that were not previously alleged in their various Bills of Particulars which were summarily rejected by the Court.
On September 26, 2023, Arthur Yankowitz secured a discontinuance during trial venued in Kings County in a medical malpractice case against a gastroenterologist physician while the co-defendants settled for $900,000. The case concerned an alleged failure to timely diagnose Stage IV stomach cancer which resulted in a perforated gastric adenocarcinoma, emergency surgery and extensive chemo and radiation therapy. The gastroenterologist defense was premised on proximate cause that his alleged misdiagnosis did not have an impact on the plaintiff’s cancer staging and treatment. Mr. Yankowitz was ultimately able to convince a highly experienced plaintiff’s trial counsel to discontinue all the claims.
On September 6, 2023 John Barker, Kiki Chrisomallides and Rani Kulkarni won summary judgment in a medical malpractice case brought against a major New York Hospital. Plaintiff alleged that the infant-plaintiff patient suffered a left foot IV infiltrate as a result of a failure to properly and timely order and perform IV site checks and provide appropriate treatment for the IV infiltration and extravasation leading to phlebitis, burn, swelling, ecchymosis and blistering of the left foot. Following oral argument, the Court granted dismissal of all of the claims asserted against the Hospital after ruling that plaintiff’s nursing expert did not sufficiently rebut the opinions of the plastic surgeon that accompanied the hospital’s motion.
Managing partner Kiki Chrisomallides and Head of Primary Casualty Jessica Mauch have co-authored “Mentorship is a Two-Way Street” published in CLM’s September magazine. The article explores mentorship and its fundamental role and significant impact on women’s career development along with the benefits that can be derived from these relationships both by the mentor and mentee.
Jamie Gewurz and Dylan Braverman moved to enforce an admission agreement and compel arbitration in an action brought against their client, a Nassau County Nursing Home. They argued for the enforcement of a validly executed opt-in to binding arbitration agreement. On admission, the Nursing Home resident and the Nursing Home’s designated representative entered into a valid arbitration agreement. Our team argued that the arbitration agreement was validly entered into, the subject of the action brought against their client fell within the purview of said arbitration agreement, and therefore this action should be arbitrated rather than litigated. The Court agreed that there had been no waiver of the agreement to arbitrate, the arbitration agreement was not in violation of public policy, and therefore the arbitration agreement was enforceable.
On September 18, 2023, partner Neil Mascolo obtained summary judgment on behalf of his client in Supreme Court, New York County. The case was brought by a property owner and her first party insurer for damages allegedly sustained as a result of construction work at the adjacent property. In addition to the adjacent property owner, the defendants included numerous contractors and engineers. Mr. Mascolo’s client is a restoration contractor who was retained to make repairs to damage resulting from a collapsed ceiling. The claimed damages were in excess of $10 million.
Through the use of the deposition testimony of numerous party and non-party witnesses, together with documentary evidence, Mr. Mascolo established that the damage to the plaintiff’s property, which also included expensive artwork, was not caused by his client. He also argued that the client did not exacerbate the claimed damages as alleged by the co-defendants. The court agreed and granted summary judgment dismissing the claims.