Verdicts

Associates Can Also Be Held Responsible

When a medical malpractice case was dismissed because the plaintiff's law firm failed to have the case placed on the court's calendar, the associates at the law firm representing the plaintiff were not excused from potential liability for legal malpractice on account of their status as associates, and not partners. Scarborough v. Napoli, Kaiser & Bern, LLP, — N.Y.S.2d —-, 2009 WL 1565181 (N.Y.A.D. 4 Dept. 6/5/09).

Plaintiff, son of the deceased alleged medical malpractice victim, retained the defendant law firm to represent him in his suit against his father's medical providers. The law firm consists of two partners and three associates. Ultimately, all parties here agreed, only one medical defendant's alleged negligence could potentially have led to recovery in the underlying medical malpractice case. The medical malpractice action was dismissed, however, because the law firm failed to timely file a statutorily required note of issue, which would have prompted the court to place the case on its calendar. Following the dismissal, the defendants asked the med-mal plaintiff to sign a stipulation of discontinuance of the underlying action, but allegedly did not inform him that the action had already been dismissed. Instead, he was allegedly told only that his case had no likelihood of success. Later, the plaintiff learned the real reason for the dismissal and brought suit against the law firm, its partners and three associates for legal malpractice. The defendants moved for dismissal based on the ground that the underlying medical malpractice action could not have succeeded, as the actions complained of were not the proximate cause of the decedent's death. Thus, any legal malpractice had no effect on the plaintiff. The defense also sought dismissal of the claims against the associates in the firm, on the theory that, as associates and not partners, they were not legally responsible for any legal malpractice. The court granted dismissal of the claims against the associates, but would not grant summary judgment based on the contention that the underlying medical malpractice claim was without merit.

New York's Supreme Court, Appellate Division, Fourth Department, reversed the trial court as to the claims against the associates, citing to the State's Partnership Law ' 26(c)(i), which provides that “each partner, employee or agent of ' a registered limited liability partnership” may be individually liable for, inter alia, his or her negligent or wrongful act. As the associates had not, as a matter of law, shown at the dismissal stage that they committed no wrongful act for which they could be held individually liable, the claims against them should not have been dismissed. Thus, they were reinstated. The appellate court agreed with the lower court, however, in its refusal to grant summary judgment on the basis that the medical malpractice claim was without merit, as plaintiff's prima facie case was supported by a legally sufficient expert's affidavit raising questions of fact that needed to be resolved.

Georgia Chiropractors Not Required to Obtain Informed Consent

The Supreme Court of Georgia reversed a holding of the State's Court of Appeals that held the common law doctrine of informed consent applies to chiropractors. Blotner v. Doreika, — S.E.2d —-, 2009 WL 1574554 (Ga. 6/8/09).

In a case brought against a chiropractor, the trial court declined to give the jury a requested instruction concerning the chiropractor's alleged failure to obtain the patient's informed consent prior to performing a procedure that allegedly injured the patient. The Court of Appeals held the instruction should have been given, and the defendant appealed.

On appeal, the Supreme Court of Georgia noted that the State does not recognize a common law duty to inform patients of the material risks of a proposed treatment or procedure. That duty was not imposed until 1989, prior to which time a doctor's duty in that regard was simply to answer patient questions truthfully. If no questions were asked, there was no affirmative duty to tell a patient of the risks of a procedure, and any such failure to inform the patient did not negate his or her consent to the procedure. In 1989, the Informed Consent Doctrine, codified at OCGA ' 31-9-6.1, went into effect. It contains six specified categories of information that must be disclosed by medical care providers to their patients before they undergo certain specified surgical or diagnostic procedures. The Georgia informed consent statute does not impose a general requirement of disclosure upon physicians; rather, it requires physicians to disclose only those factors listed in the statute. Chiropractic procedures are not on that list. Nor has chiropractic care been addressed by any other Georgia statute, although the legislature has promulgated additional laws requiring informed consent for other, specified, types of medical procedures not listed in OCGA ' 31-9-6.1 (e.g., acupuncture, administration of drugs to mental patients). In addition, although the legislature has given the Georgia Board of Chiropractic Examiners the right to regulate its providers (see OCGA ' 43-9-6.1), that board has not chosen to promulgate any rules or regulations requiring chiropractors to obtain the informed consent of their patients. Based on these facts, the court concluded, “It thus appears that there is no statutory or regulatory requirement in Georgia that chiropractors obtain a patient or client's informed consent. Because Georgia does not recognize a common law doctrine of informed consent, the trial court correctly refused to instruct the jury on the informed consent doctrine. The Court of Appeals erred by reversing the trial court.”

Associates Can Also Be Held Responsible

When a medical malpractice case was dismissed because the plaintiff's law firm failed to have the case placed on the court's calendar, the associates at the law firm representing the plaintiff were not excused from potential liability for legal malpractice on account of their status as associates, and not partners. Scarborough v. Napoli, Kaiser & Bern, LLP, — N.Y.S.2d —-, 2009 WL 1565181 (N.Y.A.D. 4 Dept. 6/5/09).

Plaintiff, son of the deceased alleged medical malpractice victim, retained the defendant law firm to represent him in his suit against his father's medical providers. The law firm consists of two partners and three associates. Ultimately, all parties here agreed, only one medical defendant's alleged negligence could potentially have led to recovery in the underlying medical malpractice case. The medical malpractice action was dismissed, however, because the law firm failed to timely file a statutorily required note of issue, which would have prompted the court to place the case on its calendar. Following the dismissal, the defendants asked the med-mal plaintiff to sign a stipulation of discontinuance of the underlying action, but allegedly did not inform him that the action had already been dismissed. Instead, he was allegedly told only that his case had no likelihood of success. Later, the plaintiff learned the real reason for the dismissal and brought suit against the law firm, its partners and three associates for legal malpractice. The defendants moved for dismissal based on the ground that the underlying medical malpractice action could not have succeeded, as the actions complained of were not the proximate cause of the decedent's death. Thus, any legal malpractice had no effect on the plaintiff. The defense also sought dismissal of the claims against the associates in the firm, on the theory that, as associates and not partners, they were not legally responsible for any legal malpractice. The court granted dismissal of the claims against the associates, but would not grant summary judgment based on the contention that the underlying medical malpractice claim was without merit.

New York's Supreme Court, Appellate Division, Fourth Department, reversed the trial court as to the claims against the associates, citing to the State's Partnership Law ' 26(c)(i), which provides that “each partner, employee or agent of ' a registered limited liability partnership” may be individually liable for, inter alia, his or her negligent or wrongful act. As the associates had not, as a matter of law, shown at the dismissal stage that they committed no wrongful act for which they could be held individually liable, the claims against them should not have been dismissed. Thus, they were reinstated. The appellate court agreed with the lower court, however, in its refusal to grant summary judgment on the basis that the medical malpractice claim was without merit, as plaintiff's prima facie case was supported by a legally sufficient expert's affidavit raising questions of fact that needed to be resolved.

Georgia Chiropractors Not Required to Obtain Informed Consent

The Supreme Court of Georgia reversed a holding of the State's Court of Appeals that held the common law doctrine of informed consent applies to chiropractors. Blotner v. Doreika, — S.E.2d —-, 2009 WL 1574554 (Ga. 6/8/09).

In a case brought against a chiropractor, the trial court declined to give the jury a requested instruction concerning the chiropractor's alleged failure to obtain the patient's informed consent prior to performing a procedure that allegedly injured the patient. The Court of Appeals held the instruction should have been given, and the defendant appealed.

On appeal, the Supreme Court of Georgia noted that the State does not recognize a common law duty to inform patients of the material risks of a proposed treatment or procedure. That duty was not imposed until 1989, prior to which time a doctor's duty in that regard was simply to answer patient questions truthfully. If no questions were asked, there was no affirmative duty to tell a patient of the risks of a procedure, and any such failure to inform the patient did not negate his or her consent to the procedure. In 1989, the Informed Consent Doctrine, codified at OCGA ' 31-9-6.1, went into effect. It contains six specified categories of information that must be disclosed by medical care providers to their patients before they undergo certain specified surgical or diagnostic procedures. The Georgia informed consent statute does not impose a general requirement of disclosure upon physicians; rather, it requires physicians to disclose only those factors listed in the statute. Chiropractic procedures are not on that list. Nor has chiropractic care been addressed by any other Georgia statute, although the legislature has promulgated additional laws requiring informed consent for other, specified, types of medical procedures not listed in OCGA ' 31-9-6.1 (e.g., acupuncture, administration of drugs to mental patients). In addition, although the legislature has given the Georgia Board of Chiropractic Examiners the right to regulate its providers (see OCGA ' 43-9-6.1), that board has not chosen to promulgate any rules or regulations requiring chiropractors to obtain the informed consent of their patients. Based on these facts, the court concluded, “It thus appears that there is no statutory or regulatory requirement in Georgia that chiropractors obtain a patient or client's informed consent. Because Georgia does not recognize a common law doctrine of informed consent, the trial court correctly refused to instruct the jury on the informed consent doctrine. The Court of Appeals erred by reversing the trial court.”