Verdicts

No Prohibited Ex Parte Contact Took Place

The Court of Appeals of Washington, Division 1, has held that prohibited ex parte contact as described in Loudon v. Mhyre, 110 Wn.2d675 (1988), does not apply to transmittal of public documents to an attorney representing a nonparty treating physician. Smith v. Orthopedics Intern., Ltd., P.S., 203 P.3d 1066 (Wash.App. Div. 1, 3/23/09).

Plaintiff's decedent died after undergoing spinal surgery, which led to many complications and to her eventual death from methicillin resistant Staphylococcus aureus (MRSA) pneumonia. Her husband brought suit against her orthopedic surgeon and his employer. During pretrial discovery, the plaintiff deposed Dr. Johansen, who was subsequently called as a nonparty fact witness for the defense. Before trial began, a paralegal for the defense sent an e-mail to Rebecca Ringer, Dr. Johansen's attorney, asking that he read an attached plaintiff's trial brief. At trial, the plaintiff called Dr. David Cossman as an expert in support of his negligence claim. Shortly thereafter, a copy of Dr. Cossman's trial testimony was transmitted to Ringer for Dr. Johansen to review.

The following day, defense counsel's notes for Dr. Johansen's direct examination were sent to Ringer. A day after that, Dr. Johansen testified, and it was then that plaintiff's counsel learned of these interactions between the defense and Dr. Johansen. Plaintiff moved to strike Dr. Johansen's testimony, but the motion was denied. After the jury returned a verdict for the defense, the plaintiff moved for a new trial. That motion was denied.

On appeal, the plaintiff argued that the trial court should have struck Dr. Johansen's testimony because ex parte contacts with a treating physician are prohibited under Loudon, which involved a wrongful death action. There, Washington's Supreme Court upheld the trial court's ruling that prehearing communications between defense counsel and the plaintiff's treating physician were not permitted, despite waiver of the physician-patient privilege, thus limiting defense counsel to formal discovery methods. The Loudon court noted that the potential risk with such contact was that a physician may inadvertently disclose privileged information regarding a medical condition irrelevant to the litigation. Thus, the underlying public policy enunciated in Loudon was to protect the patient's privacy from release of any extraneous medical information not germane to the issue at trial. Here, there was no such risk, as no information was sought in return from Dr. Johansen and the information given to the witness was public information. The trial court's denial of a new trial was therefore affirmed.

Comparative Fault Apportioned in Doctor/Patient Relationship Suit

A jury award of $416,500 against a doctor who had sex with his patient was upheld by a Long Island court, but so was the 25% apportionment of fault to the plaintiff, whom the court deemed competent to have voluntarily entered into the liaison. Dupree v. Giugliano, Slip Copy, 23 Misc.3d 1110(A), Unreported Disposition, 2009 N.Y. Slip Op. 50697(U), (N.Y.Sup., 4/2/09).

The plaintiff patient began seeing a family medicine practitioner because of her anxiety and depression in 2000. He treated her with counseling and medication. According to her complaint, they engaged in a sexual relationship from May 2001 through March 2002. The affair, claimed the plaintiff, adversely affected her mental health, her marriage (which broke up) and her parental status, as she was awarded only partial custody of her daughter. The doctor countered that because he was not a psychologist or psychiatrist, his relationship with the plaintiff did not constitute malpractice, but was merely an affair. The jury found for the plaintiff, but her award of $500,000 was reduced by 25% because of her comparative fault. She appealed.

On appeal, the plaintiff's central contention was that the court erred in instructing the jury on the issue of comparative negligence. She claimed that her psychological disability at the time of the affair made her incapable of voluntarily consenting to the sexual relationship. The appellate court was unconvinced. “[G]iven the plaintiff's age and experience and notwithstanding the defendant's professional status and the nature of the parties' relationship at its inception (doctor/patient), it remained that the plaintiff was possessed of a will of her own and was not utterly bound by defendant's influence or choices but, rather, free to exercise her judgment and to engage in such conduct as she chose,” stated Suffolk County, NY, Supreme Court Justice William B. Rebolini, in his decision.

Emotional Harm Happens When Wrong Is Discovered By Plaintiff

A New York appellate court reinstated a suit claiming medical malpractice and obstruction of the right of sepulcher against the City of New York, which had been dismissed as untimely filed, because the harm caused was emotional and so occurred not at the time of the City and hospital's actions, but upon the plaintiff's learning of those actions. Melfi v. Mount Sinai Hospital, — N.Y.S.2d —-, 2009 WL 1118956, 2009 N.Y. Slip Op. 03404 (N.Y.A.D. 1 Dept., 4/28/09).

On Oct. 28, 2001, playwright Leonard Melfi, best known for his one-act play Birdbath and contributions to the Broadway hit Oh! Calcutta!, collapsed in his room at the Narragansett Hotel, a welfare hotel, on the upper west side of Manhattan. The ambulance call report prepared by EMS personnel contained identifying information including Melfi's address, date of birth, and Social Security Number. The report also listed his friend Joann Tedesco as next of kin, and included her telephone number. Melfi died that same evening. The death certificate prepared by the hospital included the deceased's name and age, but omitted any additional identifying information such as his address, Social Security Number, and Joann Tedesco's contact information, which had been listed on the EMS Report and in the Patient Registration Form. Although a doctor testified that he made two phone calls in an effort to reach Joan Tedesco, these attempts were not documented in the records. No other attempts by any party to contact the deceased's next of kin, either while at the hospital or at the city morgue, were documented.

Because the body went unclaimed in the hospital's and New York City's morgues, it was sent to a college to be practiced on by embalming students, and later interred in the city's “Potter's Field” cemetery.

The deceased's brother discovered in February 2002 that his brother had died. He filed a notice of claim within 90 days of that discovery, then brought suit against the hospital and the City in October 2002 for, inter alia, loss of sepulcher. The right of sepulcher is a well-established common-law entitlement that gives the next of kin the absolute right to the immediate possession of a decedent's body for preservation and burial. When the right of sepulcher is violated, damages may be awarded against any person who unlawfully interfered with that right or improperly dealt with the decedent's body. Darcy v. Presbyterian Hosp. In City of N.Y., 202 NY 259 (1911); Estate of Scheuer v. City of New York, 10 AD3d 272 (N.Y.A.D. 1 Dept. 2004.

Actions against New York City's Health and Hospitals Corporation (HHC) are governed by McKinney's Unconsolidated Laws of N.Y. ' 7401(2) which, in relevant part, provides that such action may not be commenced “unless a notice of intention to commence such action and of the time when and the place where the tort occurred and the injuries or damage, were sustained [ ' ] shall have been filed with a director or officer of the corporation within ninety days after such cause of action shall have accrued.” HHC argued that the cause of action could not go forward because the notice of claim was filed late. They said the action accrued on Dec. 20, 2001, the day Melfi's body was sent to the Mortuary Science Department of Nassau Community College, and thus the day of the alleged tortious interference with the plaintiff's right to immediate possession of the body. The trial court dismissed the cause of action for loss of sepulcher against HHC as untimely.

On appeal, New York's Supreme Court, Appellate Division, First Department, rejected the city's claim that the suit against its HHC was untimely. The panel ruled that the plaintiff's cause of action accrued only when he discovered, in February 2002, what had happened to his brother, and not when the city turned his brother's body over to the embalming students on Dec. 20, 2001. Thus, plaintiff's May 2, 2002, notice of claim was within the applicable 90-day limitation period.

No Prohibited Ex Parte Contact Took Place

The Court of Appeals of Washington, Division 1, has held that prohibited ex parte contact as described in Loudon v. Mhyre, 110 Wn.2d675 (1988), does not apply to transmittal of public documents to an attorney representing a nonparty treating physician. Smith v. Orthopedics Intern., Ltd. , P.S., 203 P.3d 1066 (Wash.App. Div. 1, 3/23/09).

Plaintiff's decedent died after undergoing spinal surgery, which led to many complications and to her eventual death from methicillin resistant Staphylococcus aureus (MRSA) pneumonia. Her husband brought suit against her orthopedic surgeon and his employer. During pretrial discovery, the plaintiff deposed Dr. Johansen, who was subsequently called as a nonparty fact witness for the defense. Before trial began, a paralegal for the defense sent an e-mail to Rebecca Ringer, Dr. Johansen's attorney, asking that he read an attached plaintiff's trial brief. At trial, the plaintiff called Dr. David Cossman as an expert in support of his negligence claim. Shortly thereafter, a copy of Dr. Cossman's trial testimony was transmitted to Ringer for Dr. Johansen to review.

The following day, defense counsel's notes for Dr. Johansen's direct examination were sent to Ringer. A day after that, Dr. Johansen testified, and it was then that plaintiff's counsel learned of these interactions between the defense and Dr. Johansen. Plaintiff moved to strike Dr. Johansen's testimony, but the motion was denied. After the jury returned a verdict for the defense, the plaintiff moved for a new trial. That motion was denied.

On appeal, the plaintiff argued that the trial court should have struck Dr. Johansen's testimony because ex parte contacts with a treating physician are prohibited under Loudon, which involved a wrongful death action. There, Washington's Supreme Court upheld the trial court's ruling that prehearing communications between defense counsel and the plaintiff's treating physician were not permitted, despite waiver of the physician-patient privilege, thus limiting defense counsel to formal discovery methods. The Loudon court noted that the potential risk with such contact was that a physician may inadvertently disclose privileged information regarding a medical condition irrelevant to the litigation. Thus, the underlying public policy enunciated in Loudon was to protect the patient's privacy from release of any extraneous medical information not germane to the issue at trial. Here, there was no such risk, as no information was sought in return from Dr. Johansen and the information given to the witness was public information. The trial court's denial of a new trial was therefore affirmed.

Comparative Fault Apportioned in Doctor/Patient Relationship Suit

A jury award of $416,500 against a doctor who had sex with his patient was upheld by a Long Island court, but so was the 25% apportionment of fault to the plaintiff, whom the court deemed competent to have voluntarily entered into the liaison. Dupree v. Giugliano , Slip Copy, 23 Misc.3d 1110(A), Unreported Disposition, 2009 N.Y. Slip Op. 50697(U), (N.Y.Sup., 4/2/09).

The plaintiff patient began seeing a family medicine practitioner because of her anxiety and depression in 2000. He treated her with counseling and medication. According to her complaint, they engaged in a sexual relationship from May 2001 through March 2002. The affair, claimed the plaintiff, adversely affected her mental health, her marriage (which broke up) and her parental status, as she was awarded only partial custody of her daughter. The doctor countered that because he was not a psychologist or psychiatrist, his relationship with the plaintiff did not constitute malpractice, but was merely an affair. The jury found for the plaintiff, but her award of $500,000 was reduced by 25% because of her comparative fault. She appealed.

On appeal, the plaintiff's central contention was that the court erred in instructing the jury on the issue of comparative negligence. She claimed that her psychological disability at the time of the affair made her incapable of voluntarily consenting to the sexual relationship. The appellate court was unconvinced. “[G]iven the plaintiff's age and experience and notwithstanding the defendant's professional status and the nature of the parties' relationship at its inception (doctor/patient), it remained that the plaintiff was possessed of a will of her own and was not utterly bound by defendant's influence or choices but, rather, free to exercise her judgment and to engage in such conduct as she chose,” stated Suffolk County, NY, Supreme Court Justice William B. Rebolini, in his decision.

Emotional Harm Happens When Wrong Is Discovered By Plaintiff

A New York appellate court reinstated a suit claiming medical malpractice and obstruction of the right of sepulcher against the City of New York, which had been dismissed as untimely filed, because the harm caused was emotional and so occurred not at the time of the City and hospital's actions, but upon the plaintiff's learning of those actions. Melfi v. Mount Sinai Hospital, — N.Y.S.2d —-, 2009 WL 1118956, 2009 N.Y. Slip Op. 03404 (N.Y.A.D. 1 Dept., 4/28/09).

On Oct. 28, 2001, playwright Leonard Melfi, best known for his one-act play Birdbath and contributions to the Broadway hit Oh! Calcutta!, collapsed in his room at the Narragansett Hotel, a welfare hotel, on the upper west side of Manhattan. The ambulance call report prepared by EMS personnel contained identifying information including Melfi's address, date of birth, and Social Security Number. The report also listed his friend Joann Tedesco as next of kin, and included her telephone number. Melfi died that same evening. The death certificate prepared by the hospital included the deceased's name and age, but omitted any additional identifying information such as his address, Social Security Number, and Joann Tedesco's contact information, which had been listed on the EMS Report and in the Patient Registration Form. Although a doctor testified that he made two phone calls in an effort to reach Joan Tedesco, these attempts were not documented in the records. No other attempts by any party to contact the deceased's next of kin, either while at the hospital or at the city morgue, were documented.

Because the body went unclaimed in the hospital's and New York City's morgues, it was sent to a college to be practiced on by embalming students, and later interred in the city's “Potter's Field” cemetery.

The deceased's brother discovered in February 2002 that his brother had died. He filed a notice of claim within 90 days of that discovery, then brought suit against the hospital and the City in October 2002 for, inter alia, loss of sepulcher. The right of sepulcher is a well-established common-law entitlement that gives the next of kin the absolute right to the immediate possession of a decedent's body for preservation and burial. When the right of sepulcher is violated, damages may be awarded against any person who unlawfully interfered with that right or improperly dealt with the decedent's body. Darcy v. Presbyterian Hosp. In City of N.Y. , 202 NY 259 (1911); Estate of Scheuer v. City of New York , 10 AD3d 272 (N.Y.A.D. 1 Dept. 2004.

Actions against New York City's Health and Hospitals Corporation (HHC) are governed by McKinney's Unconsolidated Laws of N.Y. ' 7401(2) which, in relevant part, provides that such action may not be commenced “unless a notice of intention to commence such action and of the time when and the place where the tort occurred and the injuries or damage, were sustained [ ' ] shall have been filed with a director or officer of the corporation within ninety days after such cause of action shall have accrued.” HHC argued that the cause of action could not go forward because the notice of claim was filed late. They said the action accrued on Dec. 20, 2001, the day Melfi's body was sent to the Mortuary Science Department of Nassau Community College, and thus the day of the alleged tortious interference with the plaintiff's right to immediate possession of the body. The trial court dismissed the cause of action for loss of sepulcher against HHC as untimely.

On appeal, New York's Supreme Court, Appellate Division, First Department, rejected the city's claim that the suit against its HHC was untimely. The panel ruled that the plaintiff's cause of action accrued only when he discovered, in February 2002, what had happened to his brother, and not when the city turned his brother's body over to the embalming students on Dec. 20, 2001. Thus, plaintiff's May 2, 2002, notice of claim was within the applicable 90-day limitation period.