Colonoscopy Patient Who Contracts Hepatitis C Entitled to Jury Trial on Fault and Punitive Damages

On June 15, 2016 a New York Appellate Court agreed that a jury trial must be held to determine whether a  gastroenterologist caused the spread of hepatitis C from one known infected patient undergoing a colonoscopy to the next - who had no history of the virus.  Plaintiff's expert: "demonstrated that the transmission of hepatitis C from one patient to another does not occur in the absence of negligence, as the hepatitis C virus is a blood-borne pathogen that can only be transmitted when the blood of one patient is put into the body of the other, and that the injured plaintiff did not contribute to the transmission, as she was under anesthesia at the time of the procedure." (Doctrine of res ipsa loquitur found applicable.)

The NYC Department of Health discovered that the patient upon whom the defendant gastroenterologist "performed a colonoscopy immediately before the injured plaintiff on the same day was a known hepatitis C patient." Prior to the day of the colonoscopy the injured plaintiff  showed no signs or symptoms of hepatitis C exposure. However, the plaintiff was diagnosed with hepatitis C six weeks after the colonoscopy which is the usual incubation period for hepatitis C. The Court stated that all the plaintiff needed to prove to a jury was "that the likelihood of other possible causes of the injury (contracting the virus) be so reduced that the greater probability lies at the defendant's door". Plaintiff's case can be proved solely with circumstantial as opposed to direct evidence. Moreover, in response to the gastroenterologist's  argument that plaintiff's claim for punitive damages in addition to compensatory damages, should be dismissed, the Court held: "plaintiff's allegations, if established, could provide a basis for an award of punitive damages." Gonzalez v Arya, Appellate Division, Second Department. 

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 New York 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. Ron 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 " and "Top New York Settlements." 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 was 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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