Litigation

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.

The New York judiciary has taken what can be seen as an extraordinarily activist position in an attempt to urge the legislature to change its position on the grounds for divorce in New York, the only state that still requires grounds for divorce. A trial judge has decided to withhold his ruling in a divorce case in the hope that the state legislature will soon pass a bill adding irreconcilable differences as no-fault grounds for divorce in New York state.

As the May edition of LJN's Product Liability Law & Strategy went to press, the Eleventh U.S. Circuit Court of Appeals sought to 'unravel some of the mysteries of CAFA's cryptic text' with respect to the 'mass actions' provisions — which the court characterized as an 'opaque, baroque maze of interlocking cross-references that defy easy interpretation.' Lowery v. Alabama Power Co., __ F. 3d __, 2007 WL 1062769, at *1, *8 (11th Cir. Apr. 11, 2007), affirming Lowery v. Honeywell Int'l Inc., 460 F. Supp. 2d 1288 (N.D. Ala. 2006). In affirming the grant of remand, the Court of Appeals (in dicta) addressed some of the issues presented in our article 'CAFA: Finding a Method to the Madness of 'Mass Actions'':

On Feb. 20, 2007, the U.S. Supreme Court issued its decision in Philip Morris USA v. Williams, ____ U.S. ____, 127 S. Ct. 1057 (2007), the latest in a series of decisions since 1991 exploring the limits that the Due Process Clause of the 14th Amendment imposes on state jury awards of punitive damages. An Oregon jury had awarded the widow of a Marlboro smoker $821,000 in compensatory damages and $79.5 million in punitive damages on a deceit claim against Philip Morris. After a series of appeals, the Supreme Court of Oregon had upheld the punitive damages award. The U.S. Supreme Court accepted the case to address two specific questions: 1) whether a state-court jury in a punitive damages award may punish the defendant for harm caused to parties not before the court; and 2) whether the $79.5 million punitive damages award was 'grossly excessive' because it was not reasonably related to the actual or potential harm caused by the defendant to the plaintiff. In a 5-4 decision, the Court answered the first question 'no' and declined to address the second question until the Oregon state courts had considered the case further.

This article identifies select law firm issues that can significantly impact cost and speed throughout the entire case lifecycle, and offers viable solutions to dealing with them.

Ninth Circuit Hands Google A Copyright Victory in Dispute Over Nude Pictures