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“Wrongful Life,” and Other Subjects Covered by the 2d Dept.

Posted by Andrew J. Barovick | Mar 29, 2009 | 0 Comments

The Appellate Division, Second Dept., reaffirmed that a plaintiff cannot maintain an action for “wrongful life,” in the March 17, 2009 case of Cronin v. Jamaica Hospital Center , NY Slip Op 01941(2d Dept. 2009).  There, the 72-year-old plaintiff's decedent was resuscitated twice, reportedly in violation of two Do-Not-Resuscitate (DNR) orders executed by decedent's family.  Plaintiff sued, claiming that the hospital had wrongfully prolonged decedent's life contrary to the clear directives of decedent and his family.  The 2d Dept. affirmed the lower court's granting of summary judgment to defendant, agreeing with it that no cause of action for “wrongful living” could be maintained.  Interestingly, plaintiff had established its prima facie entitlement to judgment as a matter of law by showing that decedent had not sustained “any legally cognizable injury” as a result of the failure to honor the DNR orders.  In further agreement with the lower court, the 2d Dept. found that “the status of being alive does not constitute an injury in New York.”

Dental malpractice gets a fresh look in Francis v. Mishra , NY Slip Op 01943 (2d Dept. 2009).  Defendant dentist treated plaintiff on several occasions between April, 2005, and September, 2005.  Plaintiff repeatedly complained of oral pain, bleeding, and swelling of his gums, tongue, mouth and face. After consulting a different dentist, who recommended a biopsy, plaintiff was diagnosed in February, 2006, with Stage IV squamous cell carcinoma of the mouth, requiring him to undergo disfiguring facial surgery.  Defendant moved to dismiss, alleging that the cancer had already reached its Stage IV status when plaintiff presented to him in April, 2005, so that plaintiff would have needed the same degree of surgery.  Thus, defendant attempted to extricate himself by claiming that there was a lack of causal connection (proximate cause) between his late diagnosis and plaintiff's injury.

The 2d Department affirmed the lower court's denial of defendant's motion, as defendant's expert had failed to address whether the delay affected the extent of the surgery, and plaintiff's prognosis.

And finally, the 2d Dept. added to the list of things a defense lawyer may not force a plaintiff to do during a videotaped deposition.  In Grebyonkin v. 2301 Ocean Ave. Owners Corp. , NY Slip Op 01946 (2d Dept. 2009),  the Court affirmed the lower court's ruling denying defendant's motion to compel the plaintiff  to demonstrate the circumstances of his accident during his videotaped deposition.  It is not something generally contemplated under the CPLR, and defendant failed to show that the information sought could not be secured through other discovery devices.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

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REPRESENTATIVE VERDICTS & SETTLEMENTS:

$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

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