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Res Ipsa Loquitor

“My wife had a minor surgery several weeks ago, but she developed an infection that nearly cost her life. Can I sue the hospital for malpractice?”

If your wife’s infection occurred during her surgery and there were no surgical mistakes that increased the risk of infection, then generally, the answer is no, your wife cannot sue. Infection following a surgery is considered a foreseeable risk of most procedures, and thus, your wife would have no case.

However, if the surgeon left something in your wife to cause her infection, like a surgical sponge, then the hospital and doctor would be liable under a legal theory named res ipsa loquitor. Basically res ipsa loquitor holds people accountable for actions that do not ordinarily occur in the absence of negligence; for actions that are in the total control of the surgeon and hospital; and for actions not due to any conduct of the injured party. Obviously, your wife was under anesthesia so she had nothing to do with anything involving the surgery. The surgeon and hospital were in complete control during the operation. Finally, leaving surgical tools, like a sponge, inside a patient would be considered negligent.

If the doctor leaves a surgical sponge inside the patient, a jury can infer negligence against the doctor and hospital without expert testimony and award damages to the plaintiff in a court case. But each case can be different and more details of the surgery would be necessary to give a better answer.

Adulerated Food

“I had ordered some food from a restaurant that normally did not serve take out.  After I ate, I found myself feeling sick within 30 minutes. Things got so bad, I ended up in the emergency room. Although I feel better now, can I sue for my medical bills?”

The short answer is yes. Agriculture Law sections 199-a and 200 proscribe labling and prohibit the sale of food with bacteria or some other additive that will make people sick. Violation of these statutes will give the victim the right bring to a lawsuit for personal injuries as well as medical bills.

You should try to document your purchase of food by saving the receipt from the restaurant. If you have any left over food from your purchase, you can save it in a zip lock bag. Your attorney will help you obtain other documentation for your claim. If you are a person that takes pictures of your food to post to social media, please let your attorney know.

Pre-Action Discovery

“I believe my mother was mistreated in her nursing home before she passed away. I have tried to obtain my mother’s medical records to find out what happened, but the nursing home is giving me the run-around. Can I sue for wrongful death for my mother?”

Your instincts were absolutely correct when you tried to obtain your mother’s medical records. Unless you were at the nursing home full time and have a medical background, there is no way to really know what happened to your mother in the nursing home. The medical record is a very good place to start because the record usually contains clues about your mother’s physical condition before she passed away.  From those clues about her physical condition, you might be able to make inferences about what happened to her in the nursing home before she passed away.

If you are the fiduciary for your mother’s estate, you have an absolute right to her medical records.  If the nursing home will not give you a copy of her records upon presentation of a HIPPA conformed authorization and the fee for copying said records ($.75 per page is allowed by law, under PHL  17), then you can bring an action in Supreme Court for pre-action discovery under CPLR 3102(c).  Essentially you are asking a judge to make an order compelling the nursing home to release your mother’s records.  If the nursing home still does not release the records after you get a court order, then the nursing home is in contempt and the judge can start coercing the nursing home to turn over records. The judge has a number of options for parties in contempt starting with monetary penalties.

Once you get the medical record, unless you are in the medical field, you will have to hire a forensic medical expert to review the medical records to determine if your mother was mistreated in the nursing home.

Dog Bites

“My child was playing at a park and she decided petting a strange dog was a good idea. Unfortunately, she was bitten on the arm before I could get to her and now she is afraid of all dogs. Can I sue for my daughter’s injuries?”

When you sue for injuries, you should remember that you are suing the dog’s owner, so if the “strange” dog was a stray dog with no owner, then there is no one to sue.  But, if the dog was owned by a person, then your daughter might have a claim.

The law in New Jersey holds dog owners responsible for dog bites.  The law in New York is less favorable for dog bite victims. Most dog owners are not responsible for injuries the first time their pet bites someone. The reason owners are not responsible is because the pet owner had no notice of their dog’s “vicious propensities.” But once the dog bites someone, there is notice and the pet owner is responsible for medical bills and pain and suffering your daughter endured. The location of the dog bite incident will generally determine which state law applies.

Dog bite claims are generally covered by the pet owner’s renter’s or homeowner’s insurance.

A Tale of Crossing Guards

“My child was struck by a car while walking home from school.  Shouldn’t the City also be responsible for the accident as well as the driver of the car that struck my child for failing to provide crossing guards so children can get home safely on busy New York Streets?”

As with most questions presented, the answer really lies with the details of the accident if the City is negligent for failing to provide crossing guards. The lead case with crossing guard accidents is probably Florence v Goldberg, 44 NY2d 189 (1978).  This was a 1978 case in which a jury found the City responsible for failing to replace a civilian crossing guard assigned to a busy Brooklyn intersection who called in sick.  The 6 year old plaintiff was struck walking home.  The key fact in the case was the intersection was protected by a crossing guard for the first two weeks of school.  The plaintiff’s mother accompanied the plaintiff for the first two weeks of school.  She then accepted a job after two weeks and relied on the crossing guard to help her child get home safely.

The Court found that the crossing guard created a special duty of the police to insure the child would get home safely.  But the Court repeated the rule that there is no general duty to insure citizens are never the victims of accidents or crimes. Municipalities have limited resources so they are not responsible for every act violating its citizens.  A mugging victim cannot claim the City should have had more of a police presence to prevent a crime from occurring.  Similary, if an adult was struck in that busy Brooklyn intersection, there would be no claim because there was no special relationship between the vicitim and the police force.  Similarly, if the young victim in the Florence case was injured by a bandit who beat the child up or by a friend who pushed him down, there would be no claim.  The civilian crossing guard was only there to insure safety against cars in the intersection, not against all tragedies that can occurr on a City street.

The question, as it is written, never states if the intersection in question was normally covered by crossing guards or not. If the intersection in question never had a crossing guard to begin with, then the City would not be responsible because no special duty existed bewteen the City and your child.