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January 2017: Plaintiff ’s Motion Successfully Opposed in Medical Malpractice Matter

January 12, 2017

Associate Michael B. Manning and Partner Francesca L. Mountain, assisted by Senior Partner Sean F.X. Dugan, successfully opposed Plaintiff ’s motion to serve late Notice of Claim in a child’s medical malpractice claim venued in Westchester County. Plaintiff ’s counsel alleged that the defendant-hospital was negligent in treating the infant-plaintiff. The Plaintiff claimed that pharmaceutical recommendations for the adjustment of the dose of Losartan (Cozaar) for the infant-plaintiff, treatment of the baby’s microalbumin, and misdiagnosis of nephropathy, all caused the infant-plaintiff to suffer from drug-induced injuries and complications including hemolytic anemia, drug toxicity, chemical induced arthritis and physical disabilities. Plaintiff ’s counsel supported his application by noting the defendant hospital had the child’s chart, which recorded the acts of claimed malpractice. Further, the chart supported the claim of timely notice of the malpractice. Finally, the Hospital suffered no prejudice by reason of the late application.

 

MCB opposed Plaintiff ’s motion on several grounds. In our Opposition, we established that the defendant-hospital did not have actual knowledge of the facts constituting the Plaintiff ’s claim within a reasonable time. Our reasoning in support of this contention was that the Plaintiff did not begin receiving care and treatment at the defendant-hospital did not have actual knowledge of the facts constituting the plaintiff ’s claim within a reasonable time, as plaintiff did not begin receiving care and treatment at the defendant-hospital until five years after the infant-plaintiff was first prescribed Cozaar by co-defendants. Additionally, we demonstrated that plaintiff did not have a reasonable excuse for failing to serve a timely notice of claim by highlighting the plaintiff-mother’s 50-h hearing testimony. The Court determined that the Plaintiff failed to satisfy her burden in establishing that the late Notice of Claim should be deemed timely, and therefore, denied the Plaintiff ’s motion.

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