AZ Div. 1: Cardiologist too specialized to opine against internist, but plaintiff entitled to second chance.

A.R.S. § 12-2604 requires a med mal plaintiff to have an expert with the same board certification as a board-certified defendant. During the year before the occurrence of the malpractice, plaintiff’s expert must have devoted the majority of his/her time to the same specialty as the defendant.

Physicians who are board-certified in internal medicine may seek subspecialty certification in cardiology, gastroenterology, infectious diseases, etc.

So a patient in a rehab center had chest pain. The medical director, who was board-certified in internal medicine, undertook to address the issue with apparent success until the patient died several hours later from complications of congestive heart failure.

A cardiologist was designated as plaintiff’s expert in the ensuing malpractice case. The Court of Appeals, Division One, held that the cardiologist was not eligible to serve as plaintiff’s expert. Although the cardiologist was, by necessity, board-certified in internal medicine, he limited his practice to cardiology, and for the year prior to the occurrence did not practice more broadly in internal medicine as the defendant had. Thus, the specialties were mismatched under the statute.

All was not lost for the plaintiff. The issue was raised on the defendant’s motion for summary judgment after the close of discovery. The cardiologist was disclosed in plaintiff’s preliminary expert opinion affidavit pursuant to A.R.S. § 12-2603. The court noted that, under A.R.S. § 12-2603(F), the court “shall” allow a party a reasonable time to cure an alleged insufficiency. The court said plaintiff should get additional time to substitute another expert.

Preston v. Amadei  (August 27, 2015)

Plaintiff Beaned in Bathroom; Defense Verdict Reversed

It is a scene that will surely appear in an upcoming low-humor comedy. The plaintiff was “occupying a bathroom stall . . . when the door to that stall fell off its hinges and struck him in the head”.

Plaintiff sued the airport restaurant operator of the loo, together with the Port Authority, which owned the property. The jury found that the Port Authority, and nobody else, was negligent. Imagine plaintiff’s disappointment when they announced that the negligence was not a proximate cause of the accident.

Post-trial motions availed him naught, so the plaintiff, representing himself, prosecuted an appeal. The Appellate Division, Second Department, said he will get another day in court, because “the jury’s determination that the Port Authority was negligent but that its negligence was not a substantial factor in causing the subject accident was not supported by a fair interpretation of the evidence”.

Ahmed v Port Authority (August 12, 2015)

 

NY Ist Dept. Upholds Nursing Home Admission Arbitration Agreement

A nursing home admission agreement contained an arbitration clause. The patient sued, claiming injuries from improper treatment. The nursing home sought to enforce the arbitration agreement, but the trial-level judge declined on various grounds.

The Appellate Division reversed in a terse decision, holding: (1) that the arbitration clause was not unconscionable; (2) that the Federal Arbitration Act preempted any contrary state statute; and (3) that the McCarran-Ferguson Act was not implicated.

Friedman v Hebrew Home (Aug. 11, 2015)

The record of proceedings below can be viewed by going to https://iapps.courts.state.ny.us/nyscef/Login chose search as guest, and when prompted enter index number 24793/13.