Syracuse Personal Injury Law Blog
The New York legislature is wary of people filing medical malpractice lawsuits and then delaying the resolution of their claims. As such, it drafted a statute that allows defendants to compel a plaintiff to move a case forward within 90 days, otherwise, it may be dismissed. Defendants cannot use the law to benefit from delays they caused, however, as discussed in a recent ruling delivered in an OB-GYN malpractice matter. If you suffered harm due to the negligence of your OB-GYN, it is in your best interest to contact a Syracuse medical malpractice attorney to assess what claims you may be able to pursue.
The Procedural Background of the Case
It is alleged that in 2012, the plaintiff underwent a fertility procedure that was performed by the defendant. In April 2015, she commenced a medal malpractice lawsuit against the defendant. In September of that year, issue was joined, and the defendant served the plaintiff with a demand for a bill of particulars, a notice of deposition of the plaintiff at an agreed-upon date and time, and discovery requests.
It is reported that the plaintiff did not respond. As such, in May 2017, the defendant served the plaintiff with a 90-day demand to file a note of issue. The parties’ attorneys had several discussions regarding the scheduling of the plaintiff’s deposition and set a date and time, but the defendant ultimately canceled the deposition. The plaintiff’s attorney sent a letter to the defendant’s attorney with a proposed scheduling order stating that a note of issue would be filed by December of 2017, but the defendant’s attorney did not respond. The parties had no communication until April 2019, when the defendant filed a motion to dismiss. The trial court granted the motion, and the plaintiff appealed.
Grounds for Dismissing a Medical Malpractice Case Due to Delay
Under New York law, if a party fails to abide by a 90-day demand to file a note of issue, the court may dismiss the plaintiff’s complaint for lack of prosecution. The plaintiff’s complaint may survive, however, if the plaintiff shows a good and meritorious cause of action and a justifiable reason for the delay. Additionally, it is important to note that the Court of Appeals has stated that the applicable law is highly forgiving with regard to delays in litigation. Thus, in consideration of that standard and the circumstances present in the case, namely delays that were caused to a large degree by the defendant, the appellate court found that the trial court erred in granting the defendant’s motion.
Meet with a Skillful Syracuse Medical Malpractice Lawyer
Women rely on OB-GYNs to provide them with competent care, and when they do not, it can lead to irreparable harm. If you sustained losses due to OB-GYN malpractice, you have the right to seek compensation, and you should meet with an attorney as soon as possible. The skillful Syracuse medical malpractice attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers can gather the evidence needed to provide you with a strong chance of a favorable outcome. We can be reached through our online form or by calling us at 833-200-2000 to set up a meeting.