String Of Wins For The Appellate Practice Team At Bartlett LLP
May 30, 2019
On Wednesday, May 29, the Appellate Division, Second Department handed down a decision in Durand v South Nassau Communities Hosp. (2019 NYSlipOp 04137) in favor of the defendant hospital, Bartlett’s client. The plaintiff, a patient, had an altercation with another patient and sued the hospital alleging they were responsible for an alleged assault. Both the trial court and the appellate court agreed that the hospital could not be held liable for the actions of a fellow patient because Bartlett submitted proof that the hospital had no notice of any propensity on the part of the other patient to engage in the type of conduct that allegedly caused the harm. The court also granted summary judgment finding there was no merit to plaintiff’s malpractice allegations. Also, the hospital was not liable for wrongful imprisonment for calling the Police to arrest the plaintiff for trespass when he refused to leave the hospital after being medically cleared for discharge. In dismissing the Durand case, the Appellate Division cited to precedent in Williams v Bayley Seton Hosp. on the issue of when and whether a hospital can be sued for allegedly failing to protect a patient from an assault by another patient. Appellate Practice Partner Robert G. Vizza briefed and argued the appeals not only in the Durand matter, but also in Williams.
On Thursday, May 30, the Appellate Division, First Department decided a case of first impression, agreeing with Bartlett’s client that the privacy provisions in Civil Rights Law Section 50-a were waived by the family of a deceased corrections officer who brought a lawsuit alleging wrongful death. Robert G. Vizza briefed and argued the appeal in the matter of Gaynor v. Mt. Sinai Beth Israel Med. Ctr. et al (2019 NYSlipOp 04282).
On March 28, the Appellate Division, First Department handed down a win for Bartlett’s clients in Kim v New York Presbyterian (170 AD3d 624). Plaintiff sued the hospital alleging that a nurse failed to properly supervise her in the bathroom while she was recovering from surgery in the post-anesthesia care unit. Appellate Practice partner Robert G. Vizza convinced the First Department to tacitly overrule a decision from 1986 in which the same court ruled the other way on the same set of facts. Now, the First Department held that the claim is subject to the shorter statute of limitations for medical malpractice actions, and the case cannot be brought later as an “ordinary negligence” claim. The case should serve as precedent to entitle hospitals and other health care providers to a host of favorable procedural and substantive rules governing medical malpractice cases.
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