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Marital Vows and Medical Malpractice

Posted by Andrew J. Barovick | May 29, 2015 | 0 Comments

I am not a religious officiant. I have never become a Universal Life Minister, even for a day to marry close friends. But I know this: when you married folks promised to stand by him or her “in sickness and in health,” there were unspoken limits in that phrase.  For instance, if you were a young man fresh out of law school, slinging files for a district attorney, Legal Aid, or  Corp. Counsel, because you knew you had to be a trial lawyer, you were in no way committing to prosecute a medical malpractice case on your young bride's behalf, in case she was ever a victim of medical negligence, and in case you became a plaintiff's medical malpractice lawyer.  All you had agreed to, realistically, was to remain patient enough not to run away to Vegas with that Twin Peaks waitress after your wife's third week of intestinal flu, which also made her very bitchy.

Unfortunately, not every married lawyer experiences this kind of free thinking.  An attorney named Peter M. Zirbes is apparently one who felt constrained to represent his wife recently, in Suffolk County Supreme Court, when she lost vision in one eye as a result of alleged malpractice during a catheterization procedure.The trial is not over, but the defense attorneys moved to disqualify Mr. Zirbes from continuing to represent his wife, based on their belief that Mr. Zirbes had had discussions with the defendant doctors about the risks and benefits of the procedure performed on Mr. Zirbes's wife, the plaintiff.  Therefore, they viewed him as a witness in the case.

Justice Joseph Farnetti denied defendants' motion, and allowed Mr. Zirbes to continue to represent his wife.  But he did so only because the claim for which Mr. Zirbes's observations might have been useful–that based on the lack of informed consent–was struck by the judge, obviating the need for any testimony from any person about risks and benefits of the procedure.  Chances are, however, that if you are the spouse of someone injured by medical malpractice, you will witness something that will make you a helpful witness on your spouse's behalf.

So the lesson here is, please do not provide legal representation to your wife or husband. It's a minefield for legal mishaps, and you never promised to do it at your wedding anyway.  And there is no question but that your emotions will deprive you of the calmness and objectivity you will need to do your best. But it really all goes back to that old chestnut about the perils of representing one's self, often attributed to Abe Lincoln. It is something like–a lawyer who represents himself has a fool for a client.  Let's expand it to say–a lawyer who represents him or herself, or his or her spouse, has a fool for a client.

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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$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.