TWO FAVORABLE DECISIONS THIS WEEK By Michael Joseph on April 21, 2024

This week our NYC personal injury lawyers won two favorable decisions. We don't let the insurance companies overstep and we don't even let our clients be victimezed by bad judicial decisions. Our ability to handle complex motion practice and Appellate work in house, gives our personal injury lawyers an edge. 


Our New York City Medical Malpractice lawyers won a major decision this week, in which the Appellate Court overturned an order of the Supreme Court, which granted the Defendant's motion to dismiss our client's case.  Through tenacious advocacy, the Appellate Court held that not only did the Supreme Court Judge commit an error in granting the motion to dismiss, the Court went further and held that the Defendant's papers were not even sufficient to demonstrate a prima facie case that they were not negligent. 

In this case, our client's husband was sick and reported to an urgent care center, with complaints of redness, swelling and pain in his legs. The medical staff found that he had very low blood pressure, and believed that he had cellulitis, a serious infection based on his symptoms.  The doctors determined that the client had sepsis and while the defendant's claimed that they properly advised him that he should go to a hospital and that he declined to do so, the records showed that they did not call an ambulance, and the instructions were ambivalent because they discharged him home, with instructions to follow up with his own doctor in 48 to 72 hours (after the weekend) to have the cellulitis reevaluated.  These doctors had to have known that with sepsis that was not treated by broad spectrum antibiotics, our cleint would be dead in less than 24 hours.  The facility allowed our client to leave on his own, and he was found dead by his wife the following morning. Our NYC medical malpractice lawyers know that sepsis is a rapidly spreading inflammatory condition, caused by a bacterial infection, which requires immeidate administration of broad spectrum anti-biotics. Our attorneys also know that one of the main symptoms of sepsis is delirium, so people with sepsis are not capable of making their own medical decisions.  In cases of sepsis, the antibiotics normally start to take effect within an hour, but the longer the delay is before they are administered, the greater the chance of a negative outcome. If sepsis is allowed to go untreated, it will be deadly. 

Our NYC medical malpratice attorneys asserted that the defendants deviated from accepted standards of medical care because (1) defendants did not take all possible steps to impress upon decedent that if he failed to go to the hospital, he might die, including involving the nurse in the discussion; (2) defendants failed to use an “Against Medical Advice” form to document decedent’s refusal to go to the hospital; (3) defendants failed to notify decedent’s wife that he needed to go to the hospital; (4) defendants failed to call an ambulance to take decedent to the hospital and, if he refused to get in it, to call 911 to force him to do so; (5) defendants should not have given decedent any medical care at all in the office, because by doing so, they created the false impression that they were taking care of his medical problems; (6) they should have refused to discharge him “home;” (7) they failed to give decedent written discharge instructions; and (8) they should not have discharged him before reviewing his lab results. The Supreme Court was dismissive of our assertions and dismissed the case. 

The Appellate Division disagreed and held that the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint through the submission of an affirmation of their medical expert, and a transcript of the defendant's deposition testimony because the expert relied upon the defendant doctor’s testimony that prior to discharging the decedent from the urgent care facility, she informed the decedent that he was suffering from cellulitis, a life-threatening infection which could lead to sepsis, and that he needed to be hospitalized, but that the decedent refused to go to the hospital. Based upon the defendant doctor's testimony, the defendant's expert  opined that the defendant satisfied the accepted standards of medical care by informing the decedent of the risk of death and the need to go to the hospital, and that the defendant did not depart from the accepted standards of medical care by discharging the decedent when he refused to go to the hospital. However, the defendant’s written assessment regarding the decedent’s visit to the urgent care facility, which was submitted with the defendants’ motion papers, did not indicate that the doctor informed the decedent of the risk of sepsis, that there was a risk of death due to the decedent’s infection, or that it was necessary for the decedent to be hospitalized. Rather, the written assessment stated that Weintraub “feel[s the decedent] would be best served being evaluated in the hospital but he refuses that,” and that the decedent was discharged with an antibiotic and instructions to follow up within the next 48 to 72 hours.” Thus, the defendants’ evidentiary submissions failed to eliminate triable issues of fact regarding the information and degree of urgency relayed by the defendant doctor to our client's husband, and thus, as to the basis for the expert opinion. Accordingly, the Appellate Court recognized that the Supreme Court should have denied the defendants’ motion for summary judgment. 


Our NYC construction accident lawyers won a significant victory in a litigated discovery dispute in Bronx Supreme Court, concerning the scope of authorizations which a Plaintiff in a personal injury suit is required to provide. Defendants in all personal injury cases, especially construction accident cases where there is a claim of permanent disability, continue to push the envelope and demand authorizations that they are not entitled to. In our case, our client sustained injuries on a construction site and claimed only orthopedic injuries to the foot and ankle, but objected to defedants' requests for authorizations for primary care recods and treatment for unrelated lung and other conditions. . Defendants moved for an Order pursuant to CPLR 3042, 3101, 3124 and 3126 to compel our client to provide unestricted authorizations for all medical treatment for his lung disease, high blood pressrue and asthma. Defendants argued that such records "ill allow defendants, the Court and Jury an opportunity to determine what plaintiff s 'general health' was at the time of the alleged accident and delermine how and to what extent the injuries had on his general health.  Our New York construction accident lawyers argued that the defendants were improperly trying to compel our client to provide authorizations for wholly unrelated medical conditions, which he has not put at issue in this case and which have no relevance whatsoever, to the claims in his case. The Court agreed and held that even though plaintiff sued for orthopedic injuries and claimed disability from employment, this did not place his entire medical condition in controversy. Our NYC personal injury attorneys continue to fight defendants' attempts to get records that they are not entitled to in an effort to distract juries from the real issues in the case by putting the Plaintiff's general health on trial and instead we fight case drift to keep the focus on what the case is about, which is the injuries that the defendants caused to our client. 

Related to This

The Law Office of Michael H. Joseph, PLLC

Law Office of Michael H. Joseph, PLLC

The Law Office of Michael H. Joseph, PLLC, has been helping injured victims recover compensation for their injuries for over a decade. Our attorneys are members of several prestigious organizations, including: 

  • New York State Trial Lawyers Association
  • American Association for Justice
  • New York County Bar Association
  • Westchester County Bar Association

To request your free initial consultation with our team, call our New York City office at (212) 858-0503 or our White Plains office at (914) 574-8330. You can also request a case review online.

Contact Us Today

Rate, Review & Explore

Social Accounts Sprite
About Us
Our Locations
Personal Injury
Construction Accidents
Auto Accidents

About Us

Our Locations

Personal Injury

Construction Accidents

Auto Accidents

Google map image of our location in 18 W 33rd St Ste 400 New York, NY

New York Office

18 W 33rd St
Ste 400
New York, NY 10001

Open Today 8:30am - 6:00pm

Google map image of our location in 203 E Post Rd  White Plains, NY

White Plains Office

203 E Post Rd
White Plains, NY 10601

Open Today 8:30am - 6:00pm

Tell us a bit about yourself...

(212) 858-0503 Send a message