We WON a reversal of a jury verdict and new trial on appeal!
We WON a reversal of a jury verdict and new trial on appeal!
Here is a copy of the Appellate Court's decision, Amodeo v Cumella, http://www.nycourts.gov/reporter/3dseri ... _04762.htm
In a nutshell, we went to trial and lost. As is the case in probably everyone's delivery - everyone in the room considered the shoulder dystocia an "obstetrical emergency". At trial the doctor never testified that he had no other choices because of the emergency, he claimed he did nothing wrong. When it came time to give the jury instructions the doctor's lawyer asked for the emergency doctrine charge and the judge gave it to him. In basic terms, the emergency doctrine says that if you are confronted with a sudden and unforeseen emergency (not of your own making) and your reaction to the emergency causes harm, you could be found not negligent. This is a doctrine that is used most often in motor vehicle accident cases, not a medical malpractice case. By giving the doctor the emergency doctrine charge, the judge effectively lowered the standard of care that the doctor was held against.
If anyone here has a trial coming up (in any state) let your attorney know about this decision...it might help your case. I have found out that this tactic has been used by defendants lawyers before...maybe now that door has been closed.
In a nutshell, we went to trial and lost. As is the case in probably everyone's delivery - everyone in the room considered the shoulder dystocia an "obstetrical emergency". At trial the doctor never testified that he had no other choices because of the emergency, he claimed he did nothing wrong. When it came time to give the jury instructions the doctor's lawyer asked for the emergency doctrine charge and the judge gave it to him. In basic terms, the emergency doctrine says that if you are confronted with a sudden and unforeseen emergency (not of your own making) and your reaction to the emergency causes harm, you could be found not negligent. This is a doctrine that is used most often in motor vehicle accident cases, not a medical malpractice case. By giving the doctor the emergency doctrine charge, the judge effectively lowered the standard of care that the doctor was held against.
If anyone here has a trial coming up (in any state) let your attorney know about this decision...it might help your case. I have found out that this tactic has been used by defendants lawyers before...maybe now that door has been closed.
Re: We WON a reversal of a jury verdict and new trial on appeal!
Dear Ben's Dad:
I am so happy for you! I know another trial is not a fun idea, but the system does work. Perhaps the other side will not want to go to trial again and will offer an acceptable settlement.
I am glad your lawyers saw this and had you go for the appeal.
good luck with the next one,
claudia
I am so happy for you! I know another trial is not a fun idea, but the system does work. Perhaps the other side will not want to go to trial again and will offer an acceptable settlement.
I am glad your lawyers saw this and had you go for the appeal.
good luck with the next one,
claudia
Re: We WON a reversal of a jury verdict and new trial on appeal!
Dear Ban'S Dad,
Hi!
I am so happy for after so many months and years you finely could have your day in court!
I tried e-mailing you personally it didn't go trough!
Solomon
Hi!
I am so happy for after so many months and years you finely could have your day in court!
I tried e-mailing you personally it didn't go trough!
Solomon
Re: We WON a reversal of a jury verdict and new trial on appeal!
Kudos to your attorney for appealing and pushing forward!
You must not live in a malpractice-award-limiting state. I am postive a lawyer in California (our state) wouldn't bother pushing a case this far: with a cap of $250K for negligence, it just wouldn't be financially worth it. So much for justice under medmal caps...
The decision in your case should help keep negligent OBs from getting off. I'm so glad you got it... and so glad that at least SOMEWHERE the system still works like it should!!
Kate
You must not live in a malpractice-award-limiting state. I am postive a lawyer in California (our state) wouldn't bother pushing a case this far: with a cap of $250K for negligence, it just wouldn't be financially worth it. So much for justice under medmal caps...
The decision in your case should help keep negligent OBs from getting off. I'm so glad you got it... and so glad that at least SOMEWHERE the system still works like it should!!
Kate
Re: We WON a reversal of a jury verdict and new trial on appeal!
Hooray hooray!
Congratulations on winning the appeal. Your victory is a victory for all of us!
Nancy Birk
UBPN President
Congratulations on winning the appeal. Your victory is a victory for all of us!
Nancy Birk
UBPN President
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F-Litz
- Posts: 970
- Joined: Fri May 26, 2006 6:53 pm
- Injury Description, Date, extent, surgical intervention etc: LOBPI, LTBPI at age 6.5, Sensory Issues, CP, Diaphragm Weakness, Aspberger's
- Location: Ambler, PA
Re: We WON a reversal of a jury verdict and new trial on appeal!
Everybody should email this to their attorneys.
Lenny - you are one committed dad and in doing this you've helped so many other families.
WOW! and Thank you!
Lenny - you are one committed dad and in doing this you've helped so many other families.
WOW! and Thank you!
Re: We WON a reversal of a jury verdict and new trial on appeal!
Kate,
The attorney that handled the trial didn't do the appeal. I had to seek out an appellate lawyer to do it (at my cost)...it was something I felt that I needed to do...it just didn't sit right with me.
As for caps...I think they are a dumb idea, promoted by a president who isn't very bright himself. It just goes to show that the doctors lobby has way too much influence with government.
The attorney that handled the trial didn't do the appeal. I had to seek out an appellate lawyer to do it (at my cost)...it was something I felt that I needed to do...it just didn't sit right with me.
As for caps...I think they are a dumb idea, promoted by a president who isn't very bright himself. It just goes to show that the doctors lobby has way too much influence with government.
Re: We WON a reversal of a jury verdict and new trial on appeal!
Ben's Dad,
WOW is all I can say! I can't believe you undertook this yourself... that is just soooo fantastic and amazing and thank you thank you thank you!!
Kate
WOW is all I can say! I can't believe you undertook this yourself... that is just soooo fantastic and amazing and thank you thank you thank you!!
Kate
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Tanya in NY
- Posts: 935
- Joined: Mon May 03, 2004 10:51 am
- Injury Description, Date, extent, surgical intervention etc: I am Mom to Amber, injured at birth. I serve on the Board of Directors for UBPN, and am a labor/delivery nurse, too.
- Location: NY State
- Contact:
Re: We WON a reversal of a jury verdict and new trial on appeal!
Lenny,
Way to move forward with the goal in mind! You will have definitely made your son very proud of you! Way to go!
Tanya in NY
Amber's Mom
Way to move forward with the goal in mind! You will have definitely made your son very proud of you! Way to go!
Tanya in NY
Amber's Mom
Tanya in NY
Amber's Mom, ROBPI, 13 years old
Amber's Mom, ROBPI, 13 years old
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Kath
- Posts: 3242
- Joined: Mon Nov 18, 2002 4:11 pm
- Injury Description, Date, extent, surgical intervention etc: I am ROBPI, global injury, Horner's Syndrome. No surgery but PT started at 2 weeks old under the direction of New York Hospital. I wore a brace 24/7 for the first 11 months of my life. I've never let my injury be used as an excuse not to do something. I've approach all things, in life, as a challenge. I approach anything new wondering if I can do it. I tried so many things I might never have tried, if I were not obpi. Being OBPI has made me strong, creative, more determined and persistent. I believe that being obpi has given me a very strong sense of humor and compassion for others.
- Location: New York
Re: We WON a reversal of a jury verdict and new trial on appeal!
Lenny
This is a giant step for BPI cases.
I am so happy you did not give up and took charge!
When a family wins I feel as if I wow!
Kath adult/robpi
This is a giant step for BPI cases.
I am so happy you did not give up and took charge!
When a family wins I feel as if I wow!
Kath adult/robpi
Kath robpi/adult
Kathleen Mallozzi
Kathleen Mallozzi
