AZ Div. One Clarifies Physician Lien on Tort Proceeds

A.R.S. § 33-932 specifies the method for perfecting a health care provider’s lien on a patient’s personal injury claim. Hospitals must perfect within 30 days of discharge, while all other providers must record “within 30 days after the patient has received any services”.

So what happens if a nonhospital provider – in this case a physician group – files more than 30 days after treatment starts but long before it is concluded?

Division One holds that, as long as all other requirements are met, the lien is good for all services rendered during the 30 days prior to filing and all treatment thereafter.

Premier v Navarro (October 1, 2015)    REVERSED AUG 30 2016

Doc Burned by Mom’s Words of Comfort

The doctor said plaintiff’s mother told him that her daughter sued him as a mere formality, and that a discontinuance was forthcoming.  The doctor clung to this comforting thought for over a year. He did not respond to the complaint, a warning letter or the motion for a default judgment.  The Appellate Division, Second Department, said that Mom’s reassurance was no excuse, regardless of the merits of the doctor’s defense to the malpractice claims.

Scott v Ward (July 22, 2015)



Counsel’s “Lethargic Approach” to Eviction Leaves Landlord Vulnerable to Pit Bull Attack Claim

If you want to evict a tenant with a problematic dog, do you need a “pit-bull” lawyer?

There was evidence that the landlord’s site manager notified the tenants to get rid of a vicious pit bull, and referred the matter to counsel for eviction proceedings. The lawyer acted slowly, and – you guessed it – the dog attacked a visitor to the premises.  The visitor sued, and the landlord’s motion for summary judgment was denied. The Third Department held that questions of fact existed as to whether the elapsed time should have been sufficient, in the exercise of reasonable care, to correct the problem.

Perhaps not a “pit bull” (sounds so unprofessional in my ears), but definitely not a tortoise.

Rodgers v. Horizons at Monticello (July 16, 2015).

Claimant Misses Party, Gets Hangover Anyway.

If the insurance company invites you to the DJ party you might as well go. If you have regrets on the morning after, you will at least have joined in the dancing.

This story involves three lawsuits: (1) a personal injury action by Spencer against Zacharia ; (2) a declaratory judgment action by Tower against Spencer and Zacharia; and (3) a direct action by Spencer against Tower.

In New York, unless the insurer disclaims for late notice, an injured person cannot bring a direct action against a tortfeasor’s insurer unless she has an unsatisfied judgment against the tortfeasor (see N.Y. Insurance Law § 3420 (a)(6), (b)). Nevertheless, insurers are encouraged to seek a declaration of rights and obligations well in advance of the judgment in an underlying tort case (Lang v. Hanover Ins. Co., 3 N.Y.3d 350, 820 N.E.2d 855 (2004))*. Nothing prevents the insurer from electing to join both the insured and the allegedly injured party in the declaratory judgment action.

Tower, issuer of the homeowner’s policy in question, disclaimed because Zacharia did not reside at the premises in question.

Spencer did not respond to Tower’s DJ complaint, and got it dismissed as against her because Tower did not seek a default judgment within a year as required by CPLR 3215(c). The court ultimately declared that Tower was not obliged to defend or indemnify Zacharia, but did not make any declaration as to Spencer, finding that the earlier 3215(c) dismissal made the question moot.

Spencer then obtained a judgment against Zacahria in the tort action, and brought the direct action against Tower.

The Appellate Division, Second Department, held Spencer was collaterally estopped, or, in non-legal jargon, bound, by the result in the declaratory judgment action. The court noted that an injured person bringing direct action against the insurer acts as subrogee of the insured and has no greater rights than the insured. Furthermore, said the court, Spencer had a full and fair opportunity to litigate the issues in the DJ action.

Spencer v. Tower Insurance Group (July 8, 2015). To view the various orders and papers referred to, go to Web Civil Supreme, select Kings County, search under Index Number 504928/2013, and follow the links to view the e-filed documents.

*New York law regarding award of attorneys fees may dampen DJ enthusiasm, but that is beyond the scope of this note.



Expert Jumped to Conclusion: Doc Wins, Verdict Set Aside

An emergency room physician ordered a steroid to increase the patient’s urine output and a six-hour infusion of 100 ccs of 5% hypertonic saline solution. A nurse misread the order and gave the full 100ccs in only one hour. The serum sodium level jumped from 9 mmol/L to 108 mmol/L.

The defendant physician arrived and took over the care after the infusion was complete. He ordered blood testing every four hours. The serum sodium level continued to increase, and by two days later, the patient suffered severe brain injury.

At trial, plaintiff’s expert claimed that the defendant doctor should have stopped the level from rising, but did not say how that could have been done. The jury apportioned 40% of the fault to the nurse and 60% to the defendant physician.

The Second Department reversed the trial court and granted the doctor’s post-trial motion for judgment notwithstanding the verdict. The court concluded that “in the absence of evidence as to . . . what could have been done to arrest the increase . . . testimony that the appellant departed by failing to manage that increase was entirely conclusory.”

Manganiello v Ahmed (July 1, 2015)