News

Precedent Set by Robert G. Vizza in the Court of Appeals, Followed by Several Wins in the Appellate Division

May 12, 2016

12/16/2015 Court of Appeals breaks new legal ground in a case handled by BM&M:

The firm has been counseling hospitals on how to update their policies and procedures to respond to this recent holding by the Court of Appeals which defined, for the first time, a duty on the part of physicians to warn patients not to drive after receiving narcotic pain medication.  Robert G. Vizza, the partner in charge of our Appellate Practice department, wrote the briefs and argued the appeals in the Appellate Division, Second Department, and then in the State’s highest court, the Court of Appeals.  The Court accepted the defendants’ arguments and limited the potential for liability to just this limited circumstance of an alleged failure to warn, without imposing any duty on the hospital’s part to prevent the patient from leaving or driving.  The case will also stand as precedent for the types of cases that fall under the procedural and substantive protections afforded to doctors and hospitals facing medical malpractice claims, and the Court agreed that the plaintiff cannot simply re-label these lawsuits as claims for ordinary negligence.

2/24/16 Appellate Division clarifies that Public Health Law Article 28 claims can only be brought against nursing homes:

In a case of first impression for the Appellate Division in which Robert G. Vizza wrote the brief and argued the appeal, the Second Department held that plaintiffs cannot sue hospitals under § 2801-d of the Public Health Law since that provision only applies to nursing homes.  The court also agreed that the defendant hospital established that the medical care was at all times within accepted standards of medical care and that the decedent’s decubitus ulcers occurred in the absence of negligence.

3/30/16 Appellate Division upholds the trial court’s refusal to enter a judgment against defaulting defendants:

Plaintiff commenced a medical malpractice action against several doctors and their professional groups. Plaintiff sought to enter a default judgment against two of the defendants who had not retained BM&M until after their time to answer ran out.  Robert G. Vizza wrote the brief and motion papers in the Appellate Division, and argued the appeal on behalf of two of the defendants.  The Appellate Division, Second Department, dismissed plaintiff’s appeal, in part on technical grounds raised by BM&M related to dismissal of an earlier appeal on the same issues, and proceeded to affirm the trial court’s decision to the effect that the plaintiff failed to show merit to the underlying claim, and found that the plaintiff waived the lateness of the defendant’s answer and was not entitled to enter a default judgment.

5/11/2016 Third in a string of successful appeals on the doctrine of res ipsa loquitur:

Plaintiff commenced a medical malpractice action in Supreme Court, Westchester County, against a hospital and two surgeons alleging that he contracted an infection at the site of spinal discectomy and fusion surgery.  Robert G. Vizza wrote the brief and successfully argued the appeal, convincing the Appellate Division, Second Department to grant summary judgment to the defendants.  The case turned on an evidentiary device called the doctrine of res ipsa loquitur, sometimes used by plaintiff’s to try to prove a negligence case without identifying exactly what was done wrong or how it caused the injury.  The Appellate Division issued a finding that the doctors were not negligent, citing in its decision two prior cases that were argued by Mr. Vizza regarding the standards of review on a motion for summary judgment in a medical malpractice case (involving the alleged delay in providing a blood transfusion and another matter involving dislocation of a patient’s elbow following surgery).  Just as importantly, the court agreed with our arguments that the doctrine of res ipsa loquitur does not apply in a medical malpractice case unless there is the unusual occurrence of a foreign object left in the patient’s body or an unexplained injury in an area remote from the treatment site.  In this case the plaintiff failed to show that the injury was caused by an agency or instrumentality within the exclusive control of the defendants.

This recent decision limiting the application of res ipsa loquitur is the third case successfully handled by Mr. Vizza on that legal issue, with prior cases in the First Department (involving infection from mold spores) and Second Department (involving surgical wound packing allegedly left inside a patient) that were all decided in favor of the defendant health care providers represented by BM&M.

Other successful appeals are described in Mr. Vizza’s biography.

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