Medical Malpractice Cases in Current Times in New York State

by John C Cherundolo on Apr. 15, 2014

Accident & Injury Medical Malpractice Accident & Injury  Personal Injury 

Summary: A look at the most recent Medical Malpractice Cases decided in New York State in 2013

         Plaintiff’s Settlement Before Any Entry of Judgment Triggered General Rule That a Tortfeasor Who Settles With an Injured Party May Not Seek Contribution From Any Other Tortfeasor or Potential Tortfeasor.


Plaintiff commenced a medical malpractice action, and defendant/third-party plaintiff, Chohan, asserted cross-claims for contribution against defendant/third party defendants, Patel and Sarwar, that were converted into a third-party action after the main action was dismissed against Patel and Sarwar. The parties to the third-party action agreed to sever that action from the main action and to conduct the trial therein at a later date.

At the conclusion of the trial in the main action, the jury returned a verdict finding Chohan liable to the plaintiffs and awarding the plaintiffs a sum of $2.4 million in damages. Following the verdict in the main action but before any entry of the judgment, Chohan settled with the plaintiffs. Thereafter, Patel and Sarwar moved for summary judgment dismissing the third-party action on the ground that Chohan was barred by General Obligations Law section 15-108(c) from seeking contribution from them. The Appellate Division, Fourth Department, reversed the lower court’s denial of third-party defendants’ motion.

General Obligations Law section 15-108(c) provides that “[a] tortfeasor who has obtained his own release from liability shall not be entitled to contribution from any other person. ‘Thus, as a general rule, a tortfeasor who settles with an injured party may not seek contribution from any other tortfeasor or potential tortfeasor. That rule, however, does not apply to post-judgment settlements.

Here, it was undisputed that Chohan settled with the plaintiffs prior to the entry of the judgment against him, and thus he forfeited his right to seek contribution from Patel and Sarwar according to the plain language of General Obligations Law section 15-108.


         Hospital is Not Ordinarily Liable For the Acts of a Private Attending Physician Unless a Patient Relies Upon the Fact That the Physician’s Services are Provided by the Physician as the Hospital’s Apparent Agent.


A hospital is not ordinarily liable for the acts of a private attending physician (see Hill v. St. Claire’s Hospital, 67 NY2d 72 (1986) unless a patient, in accepting treatment by a private physician, relies upon the fact that the physician’s services are provided by the physician as the hospital’s apparent agent, such as where the patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient’s choosing. (see Shafran v. St. Vincent’s Hospital & Medical Center, 264 AD2d 553 (1st Dept. 1999).

Defendant hospital established its entitlement to judgment as a matter of law by demonstrating that independent vascular surgeons, employees of a non-party practice, were responsible for the supervision and management of plaintiff’s care. Since it was conceded that plaintiff arrived at defendant hospital in an unconscious state, liability on a theory of ostensible agency finds no support.  (Brink v. Muller, 86 AD3d 894 (3rd Dept. 2011). Nor was there evidence that hospital employees failed to carry out instructions given by the attending physicians. Thus, the Appellate Division, First Department, held there was no basis upon which to subject the hospital to liability.


         Relation Back Doctrine Applied Where “Mere Mistake” In Failing to Identify Defendant Doctor in Original Complaint.


Plaintiffs commenced this medical malpractice action seeking damages for injuries sustained by infant during her delivery. The complaint named as defendants the hospital where the infant was born, Robert Silverman, MD, the medical practice group for whom Silverman worked, and John Doe, MD and Jane Roe, MD.  The complaint alleged that the defendant physicians were employed by or associated with the practice and committed malpractice in their prenatal care and treatment of the infant plaintiff. One year after the expiration of the statute of limitations, plaintiff moved for leave to amend their complaint by substituting non-party John Folk, MD in place of John Doe, MD. Plaintiffs contended that although Silverman was the primary obstetrician for plaintiff during her pregnancy, he was unavailable to deliver the infant. Plaintiffs alleged that, after filing the complaint, they became aware that Dr. Folk, who was employed or associated with the medical practice group, was the attending physician who delivered the infant and, thus, was a proper party to the action.

The Appellate Division, Fourth Department, affirmed the lower court’s grant of plaintiff’s motion for leave to amend their complaint, relying on the relation back doctrine, as set forth in Brock v. Bua, 83 AD2d 61 (2nd Dept. 1981), adopted by the Court of Appeals in Mondello v. New York Blood Center – Greater N.Y. Blood Program, 80 NY2d 2129 (1992), and refined in Buran v. Coupal, 87 NY2d 173 (1995).


[Defendants] do not dispute that the first prong of the relation back doctrine is satisfied because the claims against Dr. Folk and the original defendants arise out of the same occurrence, i.e., the infant plaintiff’s birth, and we conclude that the second prong is satisfied as well. With respect to the third prong, the Court of Appeals made it clear that “New York law requires merely mistake – not excusable mistake – on the part of the litigant seeking the benefit of the doctrine.” [Defendants] contend that here there was no mistake and only neglect on the part of the plaintiffs. We agree with plaintiffs, however, that even if they were negligent, there was still a mistake by plaintiffs in failing to identify Dr. Folk as a defendant.” (internal citations omitted)


         Device Known At “Wisconsin Wire” for Spinal Fusion Surgery was not “Foreign Object” Within the Meaning of CPLR 214-a.


Plaintiff commenced this medical malpractice action seeking damages for injuries allegedly sustained during spinal fusion surgery. During the course of surgery, a device known as a “Wisconsin wire” was implanted in plaintiff’s body in order to enhance the fixation and stabilization of his thoracic spine. Thereafter, over the course of many years, plaintiff experienced pain and discomfort at the surgical site, and upon inquiry of a physician in February 2004, found that the Wisconsin wire was in fact protruding from the plaintiff’s spinal column into his muscle and soft tissue at the surgical site. The positioning of the wire was corrected in April, 2007.

Plaintiff contends that because the wire was not properly bent, twisted or placed when it was implanted, it became a “foreign object” within the meaning of CPLR section 214-a, thus contending that this action was timely commenced within one year of the discovery of the wire or “of facts which would reasonably lead to such discovery, whichever is earlier.”

Contrary to plaintiff’s contention, however, it is well settled that an intentionally implanted device is not a “foreign object” within the meaning of CPLR 214-a.

Legal Articles Additional Disclaimer is not a law firm and does not offer legal advice. Content posted on is the sole responsibility of the person from whom such content originated and is not reviewed or commented on by The application of law to any set of facts is a highly specialized skill, practiced by lawyers and often dependent on jurisdiction. Content on the site of a legal nature may or may not be accurate for a particular state or jurisdiction and may largely depend on specific circumstances surrounding individual cases, which may or may not be consistent with your circumstances or may no longer be up-to-date to the extent that laws have changed since posting. Legal articles therefore are for review as general research and for use in helping to gauge a lawyer's expertise on a matter. If you are seeking specific legal advice, recommends that you contact a lawyer to review your specific issues. See's full Terms of Use for more information.