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!

A New York City man may finally see his day in court after waiting 11 years to have his medical malpractice case tried. Jeffrey Lichtman talks about Luis Berrios’ horrific ordeal with Our Lady Of Mercy Medical Center in the Bronx:

This is another tragic medical malpractice case that has been prolonged by our court system.  An already paralyzed man was put through tremendous torture because doctors took the law in their hands.  This paraplegic was pulled from his wheelchair, handcuffed to a hospital bed, and then forced to consume dangerous levels of laxatives for 27 hours.  He was then probed by doctors while police watched.  The hospital, Our Lady Of Mercy Medical Center in the Bronx, thought the man was a drug mule when he came in with stomach pain based on X-rays showing several spherical shapes they mistakenly identified as condoms stuffed with drugs.  They were gall bladder stones identified by a second radiologist later on.  After years of physical therapy the paralyzed man has still not gained full control over his own bodily functions.  After more than a decade this man will finally see his day in court.

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

Last year, CBS News reported on Marine Sergeant Carmelo Rodriguez and his battle with the medical malpractice system in regards to the military. While serving in the Marines, Sgt. Rodriguez was misdiagnosed by military doctors, saying a malignant melanoma was actually just wart. Years later, Sgt. Rodriguez was medically discharged due to his cancer, and due to a little known law called the Feres Doctrine, Sgt. Rodriguez’s family cannot bring a medical malpractice case against the government.

Feres v. United States, 340 U.S. 135 (1950), is a case in which the Supreme Court of the United States ruled that the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces. The opinion is an extension of the English common-law concept of sovereign immunity.

The practical effect is that the Feres doctrine effectively bars service members from successfully collecting damages for personal injuries, whether or not they were suffered in the performance of their duties. It also bars families of service members from filing wrongful death or loss of consortium actions when a service member is killed or injured.

The full CBS News report can be seen below. CBS reported earlier this year that the “Carmelo Rodriguez Military Malpractice and Injustice Act” is being introduced into Congress by New York state representative Maurice Hinchey.