Litigation

Discussion and analysis of the latest rulings.

Review of a key case.

Recent rulings of importance to you and your practice.

Nearly one year after the U.S. Food and Drug Administration issued a pre-emption on filing failure-to-warn actions over federally approved drugs, rulings across the nation show a clear division over the issue.

Last May's U.S. Supreme Court decision in Ark. Dep't of Human Servs. v. Ahlborn, 547 U.S. 268 (2006) ' which held that when a Medicaid benefits recipient settles with a tortfeasor, states seeking recoupment of funds for monies expended on their medical care may do so only from that part of a settlement that was designated as being for past medical expenses ' has so far led to very few reported decisions on the subject. However, two recent cases in New York have applied the teachings of the decision to find that some malpractice claimants who are also Medicaid benefits recipients and who settle with those who allegedly injured them must be allowed to keep for themselves more of the proceeds of their claims.

Generally speaking, a physician is not liable for the negligent actions of hospital employees and staff who are not employed by the physician. There are, however, two key instances where a physician can be held liable for a non-employee's negligent actions: 1) when the physician discovers a non-employee's negligence during the course of ordinary care and fails to correct or otherwise prevent the ill effects of the negligent act; and 2) when the non-employee is under the physician's supervision and control such that a 'master and servant' relationship exists. Over the past several decades, the viability of this 'captain of the ship' doctrine has diminished, for several reasons.

Recent rulings of interest to you and your practice.

Many New Yorkers have for some time been frustrated by the fact that this remains the only state in the union lacking any form of no-fault divorce. Last year, the matrimonial commission appointed by Chief Judge Judith S. Kaye concluded that 'fault allegations and fault trials add significantly to the cost, delay and trauma of matrimonial litigation.' Still, little progress has been made by those seeking to change this state of affairs.