Albany New York Defense Law Firm: O'Connor, O'Connor, Bresee & First, P.C.

In Duffy v. Vogel, 12 N.Y.3d 169 (2009), the Court of Appeals held that the request for a jury poll is a necessary condition of a “finished or perfected� verdict and a court’s failure to poll a jury may never be deemed harmless error. 

In Duffy, plaintiff sought to prove that defendant physician had committed malpractice by failing to detect, diagnose and properly treat a tumor situated in her pelvis.  The case was tried for two weeks, and a jury decided in the doctors’ favor, while purporting to award damages for the plaintiff in the amount of $1.5 million.  The jury filled out an 11 page verdict sheet containing 21 interrogatories. Five inapplicable questions were not answered, but the answers to the remaining 16 were all consistent, and every one of the 16 was unanimously signed.  Shortly after the verdict, plaintiff requested that the jury be polled to ascertain whether “each juror consents this is the verdict as read by the foreperson.” The request was denied as “unnecessary” and the jury discharged.

The Court of Appeals reversed, holding that as the right to have a jury polled is absolute. In so ruling, it held a harmless error analysis was inappropriate.

 

On November 12, 2009, Governor David Paterson signed into law Senate Bill # 66002, which makes important changes to New York’s General Obligations Law (GOL), affecting actions for personal injury, medical, dental, or podiatric malpractice or wrongful death.  The legislation adds Section 5-335 to the GOL, eliminating any right of subrogation by health insurance providers except for those payments as to which there is a statutory right of reimbursement. 

The purpose of this legislation is to protect parties to the settlement of a tort claim from certain unwarranted lien, reimbursement and subrogation claims. The amendment will addresses that fact that formerly, there was no statutory authority that addressed or limited the extent to which a benefit provider may claim contractual reimbursement or subrogation with respect to medical expenses it has paid pursuant to an insurance contract or other agreement. For example, in a medical malpractice action, a health insurer which has provided coverage to the plaintiff could demand reimbursement for its expenses, thwarting settlement talks and making cases more expensive to litigate. This legislation establishes a statutory framework that will facilitate settlement of cases and reduce expenses for litigants.  The amendment, states in pertinent part:

 

Except where there is a statutory right of reimbursement, no party entering into such a settlement shall be subject to a subrogation claim or claim for reimbursement by a benefit provider and a benefit provider shall have no lien or right of subrogation or reimbursement against any such settling party, with respect to those losses or expenses that have been or are obligated to be paid or reimbursed by said benefit provider.  See Senate Bill # 66002, Part F, Section 8.

 

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In a decision by the Appellate Division, Second Department, the Court determined in a dental malpractice action that the Continuous Treatment Doctrine applied to toll the statute of limitations to work performed on some teeth, but not others. In Zito v. Jastremski, 58 A.D.3d 724 (2d Dep’t 2009), plaintiff was not entitled to the benefit of the continuous treatment doctrine with respect to the claims involving teeth 14 and 15, as there was no treatment for these teeth 2 ½ years prior to commencement of the action.  The Court stated that although there was a continuing dentist-patient relationship, plaintiff could not prove that the treatment to these two teeth constituted continuous treatment for same illness.  However as to teeth 3, 4 and 5, the dental records and defendant’s affidavit revealed ongoing appointments and dental work relating to a bridge within the 2 ½ year statute of limitations.  Accordingly, defendant’s motion for Summary Judgment on statute of limitations grounds with respect to teeth 3, 4 and 5 was denied.

Ultimately, when multiple procedures are performed at different times on different teeth, each procedure is characterized as an isolated and discrete procedure, rather than a single condition or complaint.  The statute of limitations will thus begin to run with respect to the procedure performed on each tooth. 

The introduction of subsequent remedial measures is impermissible for the purposes of demonstrating negligence or culpable conduct.  However, evidence of subsequent remedial measures is not excluded when offered for any purpose other than to show negligence or culpable conduct.  In Managault v. Rensselaer Polytechnic Institute, 62 A.D.3d 1196 (3d Dep’t 2009), the Court determined that under the circumstances, evidence of defendant’s remedial action was relevant and admissible.

In Managault, plaintiff was injured when she slipped and fell on ice on a walkway leading to a field house on defendant’s campus.  While plaintiff admittedly observed no ice prior to her fall, she was able to see that her feet had slipped on black ice as she was on the ground waiting for help. She further observed defendant’s employees spreading salt or sand on the accident site as an ambulance crew was removing her from the scene.  The Court held that plaintiff’s description of the defendant’s remedial actions was relevant to the condition and visibility of the ice at the time of the fall.  Viewing the evidence in the light most favorable to the plaintiff, the Court concluded that the plaintiff’s observance of defendant spreading  salt or sand on the accident site satisfied plaintiff’s burden of establishing material issues of fact regarding the existence of a dangerous condition and defendant’s constructive notice thereof.