Programming Note
Define That Term #119

Interesting Second Department Med. Mal. Decision

In Redmond v. Jamaica Hosp. Med. Ctr., 2006 NY Slip Op 03871, the Court did not look too kindly on the defendant's delay in responding to legitimate requests for medical records, to the ultimate detriment of the plaintiff, and found in the plaintiff's favor in addition to awarding the plaintiff a bill of costs.

In this case, the plaintiff initially requested medical records repeatedly for six months and ultimately was forced to file an order to show cause in order to obtain the records.  As a result, in order to avoid the expiration of the statute of limitations, the plaintiff filed suit against Jhon Doe #1 and 2, and thus, pursuant to CPLR 306-b(a), had 120 days from the date of filing to discover the identity of the unknown physicians.  The plaintiff ultimately sought an extension of the time in which to serve the defendants in the interests of justice.

The Court held that the extension was properly granted due to the defendant's lack of response to the plaintiff's repeated requests for information:

The plaintiff made diligent efforts to discover the identities of the physicians before and after filing to effectuate service. Her efforts culminated with two orders to show cause, one of which was withdrawn after finally receiving the records. Even when the hospital records were produced, on the last day the plaintiff had to timely serve, they were incomplete. One of the physicians never drafted an operative report. He finally completed it more than one month after the deadline for the plaintiff to serve, and 2½ years after the decedent's surgery. Under these circumstances, the plaintiff established good cause for the delay in service.

I'm not sure if the defendants were intentionally failing to respond to the plaintiffs, or if they were simply completely disorganized.  I found it surprising that the post-operative report was never completed.  That fact alone certainly points to dilatory tactics or at the very least, extreme disorganization bordering on carelessness.  If it was the latter, it certainly doesn't bode well for their defense of the lawsuit.


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