Favorable Appeals Court Ruling For Some Late Filed Malpractice Claims in Manhattan & Bronx

 Last week an appellate court covering the Bronx and Manhattan split 3-1 ruling in favor of a plaintiff who was late in filing a complaint (against her family physician) more than 2 1/2 years after the alleged negligent conduct resulting in brain surgery and loss of vision. As a result of this expansive interpretation of the continuous treatment rule, this decision will likely be appealed to New York's highest appellate court - the Court of Appeals. Because of this ruling the plaintiff will be allowed to take this case to trial and a jury will decide if her complaint was timely and whether her doctor committed malpractice.

 The patient filed her lawsuit within 2 1/2 years of her being diagnosed with a benign brain tumor called a meningioma. Unfortunately this condition and the craniotomy required to remove it, occurred after the deadline to sue had already expired. As a result, this female plaintiff is now legally blind.  New York has one of the most draconian statute of limitations rule in the U.S. Even the most pro "tort reform" states are not as mean-spirited toward victims of malpractice. Only in New York and six other states can the statute of limitations expire before the victim even knows that there was a medical mishap or even an injury.

 The plaintiff explained that she had been visiting her family care physician repeatedly complaining of severe headaches and blurry vision on 30 visits between 1999 and September 2007. The plaintiff filed her suit in March 2010 which was within 2 1/2 years from the date she learned of her true condition. She didn't know her doctor had misdiagnosed her condition until someone else diagnosed the meningioma in November 2007. 

 The dissenting Justice Tom argued for outright dismissal of the case contending that: 1) there was no evidence of regular appointments; 2) no proof of ongoing treatments for headache related complaints; and, 3) there were gaps in treatment for more than one year. The majority opinion by Justices Moscowitz, Gische and Kapnick responded that these arguments were a "red herring". The majority opinion explained what's necessary to satisfy the continuous treatment doctrine which lengthens the time to sue: "Rather, the  inquiry centers on whether the treated symptoms indicated the presence of the condition that was not properly diagnosed - here, a meningioma that gave rise to plaintiff's severe headaches and partial loss of vision, both of which Dr. Rutkovski understood to treat by among other things, prescribing reading glasses." Lewis v Rutkovsky, 2017 WL 3707298

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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