Defense Verdict For Hospital Vacated For Improper Hearsay-New Jury Trial Ordered

Last week, an appellate court reversed Justice Ellen Spodek of the Supreme Court, Kings County who presided over a wrongful death medical malpractice action against Maimonides Medical Center (Maimonides). The decedent's family claimed, that the emergency room physician properly diagnosed his patient with pneumonia but negligently discharged him on oral antibiotics. Three days after discharge, the patient presented to the emergency room at Coney Island Hospital where he died that night from the complications of pneumonia. The medical expert for the family testified that the decedent should have been admitted to the hospital immediately and treated with intravenous antibiotics given the seriousness of the pneumonia.

The issue at trial was whether the Maimonides ER doctor explained the gravity of the pneumonia to the decedent and offered hospitalization for IV fluids and antibiotics. Another issue was whether the decedent left the hospital against medical advice ("AMA") as that doctor claimed. The Maimonides doctor made a note in the chart confirming he offered the patient hospitalization and treatment, but there was no documentation in the chart confirming the patient had left AMA. A new trial was ordered because hearsay evidence from the Coney Island Hospital ER doctors notes, about their telephone conversation with the decedent's primary care physician, was allowed to be put before the jury. The Coney Island Hospital ER doctors (also defendant's in the case) testified using those notes, that the decedent's primary care physician told them the patient admitted that he left Maimonides Medical Center AMA.

The appellate court held that the Coney Island Hospital ER doctors notes about their conversation with the decedent's primary care physician was not sufficient proof to establish that the decedent was the source of the information that he left Maimonides after signing an AMA form. Such testimony violates the Dead Man's Statute, as codified by CPLR 4519, which severely limits a party defendant from giving testimony about a conversation with a dead patient. The Dead Man's Statute even trumps hearsay that falls under an admission exception to the hearsay rule. Grechkp v Maimonides Med. Ctr., 2019 WL 4281970

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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