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The PHL right to sue for bad faith? September 19, 2019

Haar v. Nationwide Mut. Fire Ins. Co., 918 F.3d 231, 235 (2d Cir. 2019)

“For the reasons stated, the Court hereby certifies the following question to the New York Court of Appeals:

1. Does New York Public Health Law Section 230(11)(b) create a private right of action for bad faith and malicious reporting to the Office of Professional Medical Conduct?

We invite the Court of Appeals [**9]  to reformulate this question as it sees fit or expand it to address any other issues of New York law that would assist this Court in determining whether Haar may assert a cause of action under Section 230(11)(b) against Nationwide.

It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of the New York Court of Appeals this opinion as our certificate, together with a complete set of briefs, appendices, and the record filed in this case by the parties. The parties shall bear equally any fees and costs that may be imposed by the New York Court of Appeals in connection with this certification. This panel retains jurisdiction for purposes of resolving this appeal once the New York Court of Appeals has responded to our certification.”

This decision from the Second Circuit, on this diversity case in March 2019, is interesting as it relates to the within issue. I honestly was unaware that a medical provider had a right to sue for bad faith reporting under the PHL. Apparently, there is a split in the Departments and now the Court of Appeals has agreed to hear the case.

We shall see what happens.

Bifurcation? September 13, 2019

Castro v Malia Realty, LLC, 2019 NY Slip Op 06466 (2d Dept. 2019)

(1) “For decades, trial courts in the Second Judicial Department have, as a general rule, conducted trials in personal injury actions in a bifurcated manner, with the issue of liability tried before the issue of damages. In 1979, this Court adopted a rule, binding on the trial courts in this Department, requiring that a bifurcated trial be directed unless there were “exceptional circumstances” and “good cause” for holding a single, unified trial on the issues of liability and damages (22 NYCRR former 699.14[a]). In 1986, this rule was replaced by a uniform rule applicable to trial courts throughout the state providing that “[j]udges are encouraged to order a bifurcated trial [o]n the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action” (22 NYCRR 202.42[a]) “

(2)  “Nevertheless, while this Court has repeatedly stated that the determination of whether to conduct a bifurcated trial rests within the discretion of the trial court and should not be overturned absent an improvident exercise of discretion (see Wright v New York City Tr. Auth., 142 AD3d 1163Patino v County of Nassau, 124 AD3d at 739; Abrams v Excellent Bus Serv., Inc., 91 AD3d 681, 682), we have also continued to state that “[u]nified trials should only be held where the nature of the injuries has an important bearing on the issue of liability” (Wright v New York City Tr. Auth., 142 AD3d at 1163-1164 [internal quotation marks omitted]; see Parris v New York City Tr. Auth., 140 AD3d 938, 939; Patino v County of Nassau, 124 AD3d at 739; Abrams v Excellent Bus Serv., Inc., 91 AD3d at 682; Galarza v Crown Container Co., Inc., 90 AD3d 703, 703-704; Winderman v Brooklyn/McDonald Ave. Shoprite Assoc., Inc., 85 AD3d 1018, 1019; Gee v New York City Tr. Auth., 135 AD2d 778, 779) “

(3) ” For example, in Johnson v Hudson Riv. Constr. Co., Inc. (13 AD3d 864), the Third Department found that the denial of a motion to bifurcate was not an abuse of discretion under the circumstances of that case, where “if the trial was bifurcated, [the] decedent’s spouse would have to endure two trials and it is likely that two separate juries would need to be empaneled due to the coordination of expert witnesses” (id. at 865). As another example, in Sommer v Pierre (51 AD3d 464), the First Department found that the Supreme Court providently exercised its discretion in denying a motion to bifurcate because under the circumstances of that case, “fairness and convenience weigh[ed] in favor of a unified trial, which [would] serve to prevent a verdict based on undue sympathy for either party” (id. at 465).”

(4) ” There is little doubt but that the Bench and the Bar in the Second Department perceive that our precedent is, in contrast to the approach of the other departments, inflexibly, or nearly inflexibly, in favor of bifurcation. We stress today that the trial courts in the Second Department have the discretion to determine whether a personal injury trial should be unified or bifurcated in accordance with the standard set forth in the statewide rule.”

Where does this leave us? Car accident cases will probably still be bi-furcated. Trip and fall cases where an ambulance comes and statements sprinkle the records regarding how the accident occurred provide a better chance at unification. I would say the catastrophic mature of most 240 cases and the direct nexis between mode of injury and hospitalization will gravitate towards unification.

But I look forward to the trial and appellate orders as they fly through the Courts post this case.

Business record challenge lost September 13, 2019

HSBC Bank USA, Natl. Assn. v Green, 2019 NY Slip Op 06482 (2d Dept. 2019)

“At the trial in this case, Wiggins testified only that he had access to Wells Fargo’s computerized records. He did not testify that he was familiar with Wells Fargo’s practices in making those records, and he failed to state that he had any knowledge regarding the plaintiff’s records. Moreover, the plaintiff did not attempt to introduce any of the relevant records into evidence. Thus, Wiggins failed to establish an evidentiary basis for his statement that the subject loan was in default”

You really do not see too many foreclosure cases go to trial. You also almost never see a trial loss from a foreclosure trial go to the Appellate Division.

Medical malpractice “where is the proximate cause” conundrum September 13, 2019

Mi Jung Kim v Lewin, 2019 NY Slip Op 06487 (2d Dept. 2019)

This is a strange medical malpractice case. The allegation is that a doctor, known in the NY NF and WC circles performed back surgery, knew a second surgery was necessary following the post-op MRI and failed to immediately advise the Plaintiff about the same.

One month following MRI, the doctor told Plaintiff she needed another back surgery. She went to another doctor and it was performed at that date.

The jury found a departure and proximate cause. Supreme Court set aside the verdict and the App. Div. affirmed the vacatur of the verdict.

“Here, considering the evidence in the light most favorable to the plaintiff, there is a rational process by which the jury could have found that the defendant departed from accepted community standards of care by failing to recommend surgery to the plaintiff when he visited her at the rehabilitation facility on August 15, 2010, after reviewing the post-operative MRI study of her lumbar spine. The plaintiff testified that the defendant did not discuss surgery during that visit, and her expert testified that the defendant’s failure to present surgical alternatives to the plaintiff “in a timely fashion” after reviewing the post-operative MRI was a departure from accepted community standards of care.

However, there is no rational process by which the jury could have found that the defendant’s departure from the standard of care proximately caused the plaintiff’s injuries (see Gayle v Newman, 91 AD2d 75, 80; cf. Fellin v Sahgal, 35 AD3d at 802). The plaintiff’s expert opined that the eight-month delay between the August 2010 post-operative MRI, which indicated that there was still compression on the nerve, and the second surgery in April 2011 caused the plaintiff’s injuries and resulted in a “worse outcome.” However, it is uncontested that she was appropriately advised of surgical options on September 13, 2010. Thus, the plaintiff decided to cease treatment with the defendant after the November 2010 visit and to begin receiving treatment from another physician in December 2010. The plaintiff’s expert failed to present any evidence to show that the approximate one-month period between the August 2010 visit following the post-operative MRI and the defendant’s advice about surgery on September 13, 2010, was a substantial factor in causing her injuries (see Previtera v Nath, 164 AD3d 848, 851).”

I have to say good job to the plaintiff attorney for beating a 4401 dismissal and getting a jury to award money on this case. The trial court and the Appellate Division were correct in setting aside the verdict. But this is a case that makes you scratch your head.

The self-imposed ROM continuum September 13, 2019

Mondesir v Ahmed, 2019 NY Slip Op 06489 (2d Dept. 2019)

“One of the defendants’ experts found significant limitations in the range of motion of the cervical region of the plaintiff’s spine and failed to adequately explain and substantiate, with competent medical evidence, his belief that the limitations were self-imposed (see Singleton v F & R Royal, Inc., 166 AD3d 837, 838; Rivas v Hill, 162 AD3d 809, 810-811; Miller v Ebrahim, 134 AD3d 915, 916; Mercado v Mendoza, 133 AD3d 833, 834; Miller v Bratsilova, 118 AD3d 761).”

How many times have we read the same thing: the ROM limitations are self-imposed.