Legal Decisions of Note – Week of July 1 – 8, 2022

These are recent case decisions regarding medical malpractice that we think are interesting. The firm of Sholes & Miller is not involved in these matters.

Hernandez v. City of NY (2nd Dept 2022):  In this Kings County case, Plaintiffs had requested an autopsy of their decedent at the defendant hospital.  The body was transferred to the Medical Examiner’s office, but thereafter released to the funeral home and embalmed.  Plaintiff made a complaint to the Hospital’s Guest Relations department, claiming the doctors failed to explain the circumstances of the decedent’s death, failed to perform an autopsy, and then allowed the funeral home to take the body and embalm it.  They commenced this action for violation of the common-law right of sepulcher.   Supreme Court granted a motion to compel the Guest Relations file, determining they were not privileged or confidential, and denied the request for a protective order.  The Hospital had submitted its Director of Quality Management’s affidavit, a privilege log, and produced the Guest Relations file in camera.  The Appellate Division found that the Supreme Court was correct – this showing was insufficient to demonstrate the documents were generated by or at the behest of the Quality Assurance committee.

Schuster v. Sourour (2nd Dept 2022):  In this Nassau County case, the Court prevented a defendant from cross-examining the plaintiff’s expert witness regarding whether several doctors, who consulted on the decedent’s case prior to her diagnosis with lymphoma, also departed from accepted medical practice.  The Appellate Division noted that if the jury found those doctors departed from the standard of care, and this deprived the plaintiff of a chance for a better outcome, they could be found at fault along with the defendant, which was relevant under CPLR Art. 16.  The court’s error in precluding this testimony deprived the defendant of substantial justice, and a new trial was warranted.

Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC