SUCCESSFUL VERDICTS





Dougherty v. Marshall

Following a two week trial, in a unanimous verdict, a Rensselaer County jury found in favor of a primary care physician in this action which involved the death of an elderly man from a perforated ulcer. Karen Butler represented the physician in this two week trial.

DeCarlo v. Eden Park Health Services

Following a three day trial in November 2009, a Greene County jury found in favor of Eden Park Nursing Home in an action which involved an above the knee amputation in an elderly resident following a femur fracture. Debra Young represented the nursing home.

Karen Butler-Defense Verdict

In February, 2008 Ms. Butler successfully defended an orthopedic surgeon against allegations of medical malpractice in Saratoga County Supreme Court. The plaintiff, who was a diabetic, suffered a bimalleolar fracture later developing a charcot arthropathy. The doctor argued, and the jury agreed, that all standards of orthopedic care were followed.

Wolfe v. St. Claire's Hospital

In February 2007 Karen Butler obtained a unanimous defense verdict in this medical malpractice action tried before a Schenectady County jury. Plaintiff alleged the defendants failed to diagnose a severed flexor pollicis longus tendon in a woman who suffered a deep laceration to the thenar eminence of the hand. The verdict in favor of the emergency room physician and the hospital followed a week long trial. The court recently denied plaintiff's motion to set the verdict aside.

Cromp v. Ahluwalia

In July 2006 Karen Butler successfully defended an obstetrician in a Herkimer County jury trial wherein the plaintiff alleged an infant sustained an injury to the brachial plexus (Erb's palsy) as a result of medical malpractice by the physician during delivery. Ms. Butler argued successfully that the injury was caused by precipitous delivery and that the physician was not negligent. The trial resulted in a defense verdict (unanimous).

Defense Verdict

A Saratoga County jury returned a defense verdict on June 6, 2006 after a one-week trial. Plaintiff alleged cervical and lumbosacral radiculitis, among other injuries, arising from a low speed collision between her vehicle and a flat-bed tractor trailer. Plaintiff further alleged she had been rendered completely disabled by her injuries with a claim of over 600K in lost wages and benefits. The jury found no serious injuries suffered in the collision and determined that the admitted negligence of the tractor-trailer driver was not the substantial cause of any injuries claimed by the Plaintiff.

Defense Verdict

In a Schenectady County trial Ms. Butler won a defense verdict in a wrongful death action in which plaintiff alleged malpractice in discharging her 30 year old husband from defendant hospital after he expressed suicidal ideation. He killed himself the next day. After a trial lasting more than three weeks, and in a unanimous verdict, the jury of three men and three women took only 75 minutes to decide in favor of the hospital and two physicians involved in the patient's care.

DeLano v. Taubman, et. al.

In May, 2005 Ms Butler received a defense verdict in Saratoga County Supreme Court. The plaintiff alleged the defendant physician failed to diagnose subacute bacterial endocarditis causing plaintiff to suffer a severe stroke. In a unanimous verdict for the physician the jury found the doctor did not deviate from reasonable and sound medical practice in his care of the plaintiff in the months preceding her stroke.

Hoffman v. Samaritan Hospital, et. al., N.Y. Slip Op. 93227, N.Y.A.D. 3 Dept., April 15, 2004

Appearing pro se, plaintiff commenced a medical malpractice action to recover damages for defendants' alleged failure to prevent and promptly diagnose a staph infection she developed during the three weeks following a cervical laminectomy performed by defendant Pelletier at defendant Samaritan Hospital.

Finding no triable issue of fact, Supreme Court granted defendants' motions for summary judgment dismissing the complaint and plaintiff appealed.

Debra Young represented Samaritan Hospital during oral arguments and the Appellate Division found that summary judgment was approrpiate and affirmed.




Zarvis v. Albany County, James L. Campbell, Sheriff of the County of Albany, et. al., 75 Fed.Appx. 837, C.A.2 (N.Y.), February, 2004

The plaintiff alleged that, while he was an inmate at Albany County Correctional Facility, he was denied treatment for methadone and Xanax withdrawal. A seven day trial was held before Magistrate Randolph Treece and after deliberating for less than two hours, the jury returned a verdict in favor of the defendants, Dr. Torian, Edward Szostak, S heriff Campbell and the County of Albany. Karen A. Butler represented all of the defendants. The plaintiff, Paul Zarvis, was represented by Stacey Gray, P.C. of New York City.




Sullivan V. Edward Hosp
Can a physician offer expert, opinion evidence as to the nursing standard of care?
That was the issue recently before the Illinois Supreme Court. In September, 2003, TAANA submitted an Amicus brief to the Illinois Supreme Court in the case of Sullivan V. Edward Hosp. The brief was drafted after almost two years of research by members of the Litigation Section and was written by Karen Butler, Chair of the Litigation Section. The Chicago Chapter, particularly, Leatrice Schmidt, reviewed and submitted the brief. On February 5, 2004, The Illinois Supreme Court issued a decision. The issue, in brief, was whether a physician, who is not a nurse, should be permitted to offer, expert, opinion evidence, as to the standard of care for nurses. The TAANA position is that nurses, and only nurses, have the authority and responsibility to define the scope and practice of nursing. The Illinois Trial Lawyers also submitted an Amicus Brief arguing that physicians can do anything a nurse can do and, therefore, a physician can always testify as to the standard of care for nurses. Citing extensively to the TAANA brief and also to the authorities cited by TAANA, the Court ruled that only a nurse is qualified to offer opinion evidence as to the nursing standard of care. The Litigation Section would like to take this opportunity to thank the Chicago Chapter, Leatrice Schmidt and those members of the Chicago Chapter who traveled to Springfield in November to hear oral arguments. We would also like to thank the law firm of Thuillez, Ford, Gold, Johnson and Butler for underwriting the cost of researching and preparing the brief for submission. We anticipate that we will publish both the TAANA brief and the decision in an upcoming issue of the Journal of Nursing Law and look forward to sharing these resources with our members.

For copies of the decision in Sullivan v. Edward Hosp. please contact our office.

Franchini v. Palmieri, 307 A.D.2d 1056, 763 N.Y.S.2d 381, 2003 N.Y. Slip Op. 16307, N.Y.A.D. 3 Dept., Aug 07, 2003

Motorist brought negligence action to recover for injuries allegedly sustained in a motor vehicle accident. The Supreme Court, Schenectady County, Reilly, J., granted defendant's motion for summary judgment. Motorist appealed. The Supreme Court, Appellate Division, Rose, J., held that motorist failed to establish that she had a serious injury resulting from her automobile accident and affirmed Supreme Court's decision.

The Court of Appeals upheld this decision. See Franchini v. Palmieri, 1 N.Y.3d 536, --- N.E.2d ----, 2003 WL 22770115, 2003 N.Y. Slip Op. 18878 (N.Y. Nov 25, 2003) (NO. 3/, 170SSM21)




Robinson v. Adirondack Medical Center, et. al., 244 F.Supp.2d 66, N.D.N.Y., Feb. 7, 2003

Plaintiff sustained a stab wound in prison over a chess game, and was taken to Adirondack Medical Center for treatment. Plaintiff alleged Adirondack Medical Center and physicians were negligent in their treatment of the plaintiff.

Ms. Butler proceeded to trial defending Adirondack Medical Center and the Emergency Room physician. The jury returned a verdict for the defendants after a 4-day trial in the United States District Court, Northern District of New York.





Butler ex rel. Butler v. Rafferty, 100 N.Y.2d 265, 792 N.E.2d 1055, 762 N.Y.S.2d 567, 2003 N.Y. Slip Op. 14808, N.Y., Jun 10, 2003

Personal injury action was brought against co-owner of residence, by parents of minor injured in fall from bunk bed in portion of residence in which co- tenant resided. The Supreme Court, Albany County, Malone, Jr., J., entered summary judgment for defendant and appeal was taken. The Supreme Court, Appellate Division, 291 A.D.2d 754, 738 N.Y.S.2d 440, affirmed, and plaintiffs appealed. The Court of Appeals, Rosenblatt, J., held that defendant did not control portion of house where accident occurred, and thus could not be held liable for injuries sustained by minor.
Affirmed.




Woodell v. International Paper Co.,305 A.D.2d 910, 760 N.Y.S.2d 584, 2003 N.Y. Slip Op. 14369, N.Y.A.D. 3 Dept., May 22, 2003

Mechanic brought action against owner and seller of turbine under scaffold law for injuries he allegedly sustained while servicing turbine as part of job duties. The Supreme Court, Saratoga County, Williams, J., granted defendants' motions for summary judgment, and mechanic appealed. The Supreme Court, Appellate Division, Carpinello, J., held that scaffolding law was inapplicable to injuries.




Davis v. Eddy Cohoes Rehabilitation Center, 307 A.D.2d 637, 762 N.Y.S.2d 530 (Mem), 2003 N.Y. Slip Op. 16163, N.Y.A.D. 3 Dept., Jul 24, 2003

Appellate Division affirmed Supreme Court's decision denying plaintiff's motion to compel discovery.




Laconte v. Bashwinger Ins. Agency, 305 A.D.2d 845, 758 N.Y.S.2d 562 (Mem), 2003 N.Y. Slip Op. 14174, N.Y.A.D. 3 Dept., May 15, 2003

Appellate Division reversed Supreme Court's denial of defendant's motion for summary judgment holding that the evidence demonstrated that plaintiff failed to overcome the presumption that he had read and understood his insurance policy which excluded coverage for the loss which he sustained.


Hanover Insurance Co. v. Cannon Express Corp.,1 A.D.3d 358, 766 N.Y.S.2d 853 (Mem), 2003 N.Y. Slip Op. 18042, N.Y.A.D. 2 Dept., Nov 03, 2003

Appellate Division reversed Supreme Court's decision to confirm an arbitration award as he evidence established that Hanover was aware that Cannon's attorney, whose office was located in Albany, New York, was handling this matter but instead send the notice of intention to arbitrate was sent to Cannon's headquarters in Arkansas, rather than to its local representative, as required by 11 NYCRR 65.10(d)(2)(iii).




McCreesh v. Hoehn, 307 A.D.2d 638, 762 N.Y.S.2d 527 (Mem), 2003 N.Y. Slip Op. 16164, N.Y.A.D. 3 Dept., Jul 24, 2003

Appellate Division affirmed Supreme Court's decision granting defendant's motion for summary judgment finding that plaintiff failed to sustain a serious injury within the meaning of the No-Fault Law.




Ross v. Curtis-Palmer Hydro-Electric Co., 295 A.D.2d 723, 743 N.Y.S.2d 630, 2002 N.Y. Slip Op. 04839, N.Y.A.D. 3 Dept., Jun 13, 2002

Appellate Division affirmed Supreme Court's decision dismissing plaintiff's case at the close of evidence finding that the general contractor did not exercise necessary supervision and control of subcontractor's employee to be liable for his back injury under the Labor Law.




Torns v. Samaritan Hosp., 305 A.D.2d 965, 761 N.Y.S.2d 126, 2003 N.Y. Slip Op. 14553, N.Y.A.D. 3 Dept., May 29, 2003

Patient brought medical malpractice action against hospital and others in connection with care she received when undergoing surgery for her broken leg. The Supreme Court, Rensselaer County, Canfield, J., denied hospital's cross- motion for summary judgment, and hospital appealed. The Supreme Court, Appellate Division, Peters, J., held that: (1) genuine issue of material fact precluded summary judgment on issue of hospital's vicarious liability, and (2) hospital could not be held liable for medical malpractice based on its alleged failure to have an available pacemaker.




Grzelecki v. Shankar, 768 N.Y.S.2d 47, 2003 N.Y. Slip Op. 19059, N.Y.A.D. 3 Dept., Dec 04, 2003

Appellate Division reversed Supreme Court's denial of defendant's summary judgment motion finding that plaintiff's two expert witness affidavits were insufficient to defeat defendants' summary judgment motions.




Blysma v. J.V. Warren, 296 A.D.2d 637, 744 N.Y.S.2d 564, 2002 N.Y. Slip Op. 05732, N.Y.A.D. 3 Dept., Jul 03, 2002

Appellate Division reversed Supreme Court's denial of defendant's motion for summary judgment holding that (1) stairway was not passageway or other working surface within meaning of statute governing workers' safety for demolition, construction, and excavation work, and thus county and county sewer district were not liable for employee's injuries, and (2) contractor did not have sufficient control over renovation job site to give rise to liability.




Thomas v. Benedictine Hosp., 296 A.D.2d 781, 745 N.Y.S.2d 606, 2002 N.Y. Slip Op. 05997, N.Y.A.D. 3 Dept., Jul 25, 2002

Patient filed medical malpractice claim against hospital and physicians. The Supreme Court, Ulster County, Bradley, J., denied patient's motion to compel hospital to produce certain individuals for examination. Patient appealed. The Supreme Court, Appellate Division, Spain, J., held that: (1) Supreme Court was justified in denying patient's request to depose hospital further, and (2) although patient's failure to comply with Supreme Court's order directing her to depose physician was willful, it was not prejudicial.

Eckerd v. Little Falls Hospital (February, 2002)

Plaintiff alleged that her blood was drawn in a negligent manner at Little Falls Hospital, which she claimed caused injury to the nerve of her arm which resulted in Reflex Sympathetic Dystrophy (RDS), also known as complex regional pain syndrome of the right (dominant) arm. Plaintiff claimed she suffered loss of use, limited movement, pain and disfigurement to her right arm, and a need for physical therapy. After a week long trial, the jury found in favor of the Hospital because they did not believe that the plaintiff was injured by the blood draw.
Karen A. Butler was the attorney of record for Little Falls Hospital.

Lugo v County of Essex v Town of North Elba (February, 2002)

Plaintiff commenced an action against the County and Town of alleging failure to maintain and adequately remove snow and ice from the roadway, after the vehicle he was driving went off the road and landed in a stream. The direct claim against the Town was dismissed (and upheld on appeal). The County then settled with the plaintiffs and thereafter sought to obtain indemnification from the Town under a contract between them, whereby the Town performed all snow and ice control on County roads. After a three day trial before Judge Sheridan in Elizabethtown, the jury unanimously found that the accident was solely caused by the negligence of the driver, Julio Lugo, and that the Town did not negligently perform its obligations regarding snow and ice control on the road in question.
Debra J. Young was the attorney of record for the Town of North Elba.

Debra J. Young: Secures Summary Judgment Ruling
Hernandez v Galesi Group: (January, 2002)

Plaintiff sought to recover for a back injury he alleged to have sustained when he fell off a loading dock owned by Galesi Group. Summary judgment was obtained on the lack of actual or constructive notice of the defect.

Defense Verdict for Physician
After a five week trial in Saratoga County, Karen A. Butler received a defense verdict on behalf of a family practice physician. The allegations included failure to diagnose and treat ascending cholangitis a condition plaintiff developed when plaintiff's common bile duct became obstructed. The plaintiff became septic, suffered cardiac arrest and claimed to have brain damage. Plaintiff's attorney, Cynthia LaFave, called over 15 doctors to testify including specialists in cardiology, surgery, radiology, family practice, neurology and psychology. A jury of four men and two women found the defendant doctor did not deviate from any standard of care in his treatment of the plaintiff.

Defense Verdict for E.R. Doctor
Dale M. Thuillez, obtained a defense verdict on behalf of an emergency room physician. The doctor allegedly failed to diagnose appendicitis. The defense was that the plaintiff did not present with classic signs and symptoms of appendicitis. The jury, after a week long trial and various expert witnesses on behalf of both sides, found in favor of the physician.

Defense Verdict for Hospital: Birth Anoxia
Dale M. Thuillez recently obtained a defense verdict on behalf of Samaritan Hospital in an action in which the plaintiff claimed that the hopital and a co-defendant obstetrician were negligent in causing anoxia to an infant during the birth process. Included were allegations that the defendants failed to properly read fetal monitor strips, failed to perform a timely cesaerian section, and failed to undertake proper resusitative efforts. The jury found in favor of both defendants.

Dismissal of Federal Hospital Privileges/National Practitioner Data Bank Case
Upon motion submitted by Barry Gold, the United States District Court for the Northern District of New York has dismissed litigation involving a hospital's conduct in submitting a report to the National Practitioner Data Bank, as well as other claims relating to the physician and his practice. (95-CV-1438)


Defense Verdict for Hospital - Wire Left in Heart
Karen Butler recently represented Benedictine Hospital in a three week trial before Judge Kavanaugh in Kingston, NY wherein plaintiff alleged he was injured when an anesthesiologist, in inserting a central line, failed to remove 22 inches of guidewire which lodged in the plaintiff's heart. At the end of plaintiff's proof Judge Kavanaugh granted the Hospital's motion for a directed verdict. The case subsequently went to the jury with a defense verdict for the defendant doctors including the anesthesiologist and four radiologists.


Lead Paint Cases
Cooper v. County of Rensselaer, 697 NYS2d 486 (Canfield, J., September 28, 1999)
Action by plaintiff against County of Rensselaer and former landlords alleging that plaintiff's infant son, age 2, suffered injuries because of his exposure to lead-based paint while residing in an apartment in Troy. After the local hospital had diagnosed the infant plaintiff with elevated lead levels, the County inspected the apartment and detected the lead paint. The Court granted the County's motion for summary judgment finding that Public Health Law §§1370-1376 did not impose a "special duty" on the County to protect the infant. The Court also held that the facts failed to show the requisite special relationship to impose liability upon the County for the infant's lead exposure. The Court also recognized an exception to the negligent supervision rule in cases where "the specific danger is imminent and patently foreseeable, or as here, the parent is made aware of the danger that their infant faces, but takes steps that expose the child anyway."


Walls v. Farrell and County of Albany, et al., (Teresi, J., January 12, 2000)
The Court granted summary judgment to all defendants in a case involving alleged lead poisoning of three infants. The medical and psychological evidence submitted by the defendants stated that the cognitive and physical injuries of these three infants were caused by factors other than lead. These causative factors included Fetal Alcohol Syndrome, and the social environment of the three infants. The Court ruled that plaintiffs' opposing papers did not raise a triable issue of fact that the infant plaintiffs' lead exposure caused the injuries alleged in the Bill of Particulars.