Family Persuades ER Doctor That Father Still Alive Hours After Pronounced Dead-Gag Order On Family Overruled

Last week an appellate court held that a New York, Niagara County Supreme Court Justice violated the First Amendment rights of a family suing a hospital and physicians for prematurely declaring their father dead and delaying emergent heart surgery for hours. The decedent was brought to an emergency room during a cardiac arrest. A code team was called and he was intubated. Shortly therafter, the decedent was formally pronounced dead by the ER physician who then notified the family and brought them into the code room to view their father. The family alleges that "for the next two hours and 40 minutes, the decedent was breathing, making eye contact and moving around" which prompted them to urge the hospital staff to examine their father but that they refused. When the ER doctor finally relented an examined the decedent, he observed that the family was correct and their father was alive. He was transferred to another hospital where he underwent heart surgery and died.

Apparently embarrassed by these set of facts, when the hospital and ER doctor were sued for delaying treatment (pronouncing someone dead means no treatment) they succeeded in convincing the lower court to enjoin and prohibit the family and their attorney's from alerting the media and general public to what had happened. They argued that a fair trial would be impossible if the public was informed. The appellate court reversed that decision removing the "gag order" explaining: unless there is evidence that less restrictive measures would not assure the defendant's a fair trial, " a court may not impose prior restraints on First Amendment rights." The hospital and ER doctor failed to show that there was no other way to assure them a fair trial. Cleveland v Gregory Perry, M.D., Kaleida Health/Degraff Memorial Hospital, 2019 NY Slip Op 06306

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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