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Federal Court Dismisses Medical Malpractice Claim and Suggests Plaintiff Sue Their Attorney

On September 22, 2016 the United States Court of Appeals for the Second Circuit upheld the dismissal of a medical malpractice - wrongful death action which claimed that Generations Family Health Center ("Generations") had failed to timely diagnose the decedent's colon cancer. The case was dismissed because the plaintiff's attorney was unaware that Generations was federally funded which requires that a claim be filed with the Department of Health and Human Services pursuant to the Federal Tort Claims Act.

The case was originally filed in State Court, but the defense removed the case to Federal Court on the ground that Generations was federally funded and could only be sued in Federal Court. Once the case was transferred to Federal Court the only way the plaintiff, Administrator could avoid dismissal was to convince the Judge that his attorney's had pursued his rights diligently and that some extraordinary circumstance stood in their way. Though the Second Circuit found it "troubling that the government has not publicized resources for determining whether a given healthcare center is a deemed federal employee", it concluded that the plaintiff's law firm "could have discovered Generation's deemed status by performing a simple search through Westlaw." Moreover, the Court pointed out that the same law firm had a prior similar experience in suing another federally funded entity in State Court before it was removed to Federal Court.

Seemingly recognizing the second tragedy that had befallen the plaintiff's family, the Second Circuit ended it's decision noting: "A legal malpractice claim may be a possible recourse for a plaintiff caught in the deemed federal employee trap.... It's not asking too much of the medical malpractice bar to be aware of the existence of federally funded health centers that can be sued for malpractice only under the Federal Tort Claims Act...and if a member of the bar is not aware and misleads a client...,the lawyer may be liable for legal malpractice...." For more information, click the links below.

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Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the state. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ronald is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts of 2011" and "Top New York Settlements of 2012." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He is a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!

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