New York Law Blog

Last month, in Adams v. Back, a New York appellate court affirmed a decision denying the defendants’ motion for partial summary judgment in a medical malpractice case. Juanita Adams, now deceased, had been a patient of defendant Ephraim Back, a doctor at St. Clare’s Hospital, since 1997. Between 1997 and 2005, Adams, who had a history of smoking, was treated for many ailments, including repeated upper respiratory infections, sputum-producing coughs, wheezing, hoarseness and bronchitis.

In December 2003, she had an abnormal chest X-ray following complaints of a persistent cough, blood in the sputum and a fever. Back never ordered any follow-up chest X-ray, blood work or other diagnostic tests. Adams continued to make complaints of upper respiratory problems and also experienced significant and unintended weight loss. Eight weeks later, she died from lung cancer. Her estate then filed a medical malpractice and wrongful death lawsuit alleging a failure to timely diagnose her condition. Back contended that her allegations were time-barred based on the running of the statute of limitations. The Supreme Court, however, allowed Adams’ estate to strike the statute of limitations defense and denied Back’s motion for summary judgment. The case is now proceeding. (See Adams v. Back, 2009 WL 2177266).

Similarly, in early August, the appellate court denied another appeal from a defendant who sought summary judgment regarding a medical malpractice suit. In this case, the wife of the Farnoush Rezvani, now deceased, seeks recovery based on his doctor’s failure to timely diagnose a perforated colon and for lack of informed consent. The doctor performed a surgery on the Rezvani, during which his colon was perforated; he died one month later after multiple corrective surgeries.

The court held that the defendant’s expert witness failed to establish that the defendant detected the perforation in a timely manner; the court also held that the defendant did not meet her burden of proof to establish that she sufficiently informed the Rezvani of potential risks, benefits and alternatives prior to the surgery. Because the court affirmed the decision to deny the defendant’s motion for summary judgment, the lawsuit is now still proceeding successfully (See Rezvani v. Somnay, 2009 WL 2394315).

These cases demonstrate that those who have suffered injuries from similar “failure to diagnose” medical malpractice situations – whether individually or through their loved ones – have a right to pursue such a cause of action. If you share a similar story, please let one of our attorneys know, and we will help you with the attention you deserve.

Trolman, Glaser and Lichtman: Don’t settle for less!

This past July, in Ramos v. City of New York, a court denied the defendants’ motion to dismiss the complaint in a case involving a minor who was assaulted by his own classmates on school grounds.  Plaintiff Ricardo Ramos is suing the City of New York for personal injuries he sustained outside his school.  In May of 2000, Ramos was kicked and punched by several male peers upon leaving the building during dismissal.

Although a school security guard was standing nearby, he was distracted at the time of the incident and subsequently did not respond immediately to Ramos’ assault.  Ramos had reported previous altercations with his bullies to school staff or security personnel, but “nothing [ever] happened” as a result of his reporting the situation.  In fact, the record indicates that the security guard himself had been warned by “[other] students” that “some kids were outside the school . . . to jump [Ramos],” and that he had even observed three suspicious individuals lurking around the school at the time of the incident but did not do anything about it.  Ramos alleges that his injuries were caused by the City’s negligent supervision of students at the school.  The case is therefore still proceeding.  (See Ramos v. City of New York, 2009 WL 2356877).

New York law recognizes a cause of action in a case where education officials negligently supervise in an assault between students.  The law itself is well-settled:  “In determining wither the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” (Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994)).  “[W]hether the actions of a school, or its board members, are adequate and reasonable and, if they are not, whether the negligence is the proximate cause of plaintiff’s injuries, are almost always questions of fact” (Garcia v. City of New York, 222 A.D.2d 192, 194 (1st Dept.1996)).

Ramos stands a good chance for winning this lawsuit if a rational jury indeed concludes that based on the record, the school was negligent in failing to take measures to lessen the threat of an assault on a student.  For instance, the school could have ordered the suspicious students to disperse, called for additional security, or contacted the police.  As always, such questions of notice, foreseeability of danger, and the necessity for and adequacy of supervision, are generally for the jury.


Trolman, Glaser & Lichtman: Don’t Settle for Less!

Slide and Fall Accident:

A six year old slipped from a wet ladder rung while climbing the slide when it was wet and fractured her elbow.  Her elbow healed in a misaligned fashion and will cause her pain, swelling, and episodes in which her arm will lock up almost every day.  The mother of the child filed suit against the City of New York for negligently failing to create slip resistant rungs on the slide.  The jury decided in favor of the child and her mother and awarded her $3,200,000 for both past and future pain and suffering.

The court found the City had failed to comply with its own specification calling for slip resistant rungs for the protection of the children.  Testimony of the architect established that the city not only had agreed on the protection standard but had approved of the plans for the playground that included slip resistant protection.  This was considered especially necessary because near the slide was a set of spray showers that the children often played in before enjoying the slide.  Therefore the jury found in favor of the plaintiffs and awarded damages to the child for the past and future pain that she would suffer from her injuries.  (Carrasquillo v. City of New York, 2008 NY Slip Op 28400).

Playground Accident: Monkeying Around:

On July 30, 2009, the parents of David M. Gray lost on appeal the dismissal of their lawsuit against their local school district.  Their six years old boy fell off the monkey bars and broke his elbow.  The parents claimed that the height of the bars was too high and that the cushioning underneath was insufficient to cushion the fall of their child.  In addition, the parents claimed that the school was negligent in their supervision of their child.

The Supreme Court found there to be no issues of disputed facts and granted the defendants’ motion for summary judgment.  Both the lower and the appellate court held that the defendants presented a prima facie argument to merit a judgment as a matter of law.  The defendants successfully present that the playground met the safety standards.  In addition the plaintiffs failed to present sufficient evidence that there were any issues of material fact.  Therefore the court issued a summary judgment for the defendants finding that the playground met safety standards; also the court held that the school was not negligent because there was an afterschool counselor there supervising and the child had been on the monkey bars a few times prior to the injury.  The plaintiffs failed on appeal and the case has been dismissed. (Dean Gray, V South Colonie Central School District, 2009 NY Slip Op 6069)

Updates on Our Law Firm:

Recently Trolman, Glaser & Lichtman successfully appealed the dismissal of Nestor Perez’s suit against the City of New York.  The plaintiff slipped, fell, and broke his leg while playing soccer in a playground owned by the defendant city.  The Supreme Court had denied the plaintiffs request for a continuance and had dismissed the case because the plaintiffs had not continued with the commencement of trial.  However the plaintiffs and their counsel successfully appealed to the Appellate Division and had the order reversed.  The Appellate Division found that the continuance should be granted and the trial should continue because the plaintiffs had exercised due diligence in their trial preparation.  The appellate court found that the delay in the trial was actually caused by the defendant’s failure to promptly disclose all the requested documents during discovery.  Therefore the lawsuit could continue because of this successful appeal.  The action is still proceeding.  (Nestor Perez, v the City of New York, 2009 NY Slip Op 4270).

Trolman, Glaser & Lichtman: Don’t settle for less!