Heidell Pittoni Murphy & Bach LLP

On February 3, 2025, HPM&B Partner Denise Holzka obtained a unanimous defense verdict in Supreme Court, New York County in a wrongful death case after a two week trial.  The decedent, a 52-year-old attorney and single mother of an adopted 12-year-old daughter, claimed that the defendant gynecologist failed to timely diagnose a mucosal vulva melanoma in January 2017 resulting in her death in March 2022.  The decedent presented for an annual gynecological exam having not sought one for about eight years.  On exam, our client documented a finding of a sebaceous cyst?/pimple that she subsequently testified was a 1 to 2 mm lesion on the upper-third portion of the decedent’s left labia majora.  The defendant testified that she evaluated the lesion based on the “ABCDE” guidelines and concluded that the tiny flat lesion was not suspicious in that it was not Asymmetric, the Border was regular, non-scalloped and circular, the Color was even and amelanotic, Diameter was less than 6 mm and it was not Evolving as the decedent was unaware of its presence.  The decedent denied being told by defendant that she should return if there were any changes, if she developed any symptoms or if it increased in size.  To the contrary, the decedent testified through a recorded preservation video, that our client told her the lesion was benign, it was nothing to worry about and she did not need to schedule a follow-up visit.  Next, the decedent returned to our client for an annual exam 14-months later with complaints of some bleeding and discharge.  On exam, a 3 cm growth hanging from the left labia majora was identified by the defendant; it was removed and biopsied.  The decedent was diagnosed with stage IIC mucosal melanoma that within 6-months advanced to Stage IV melanoma.  The decedent was unable to tolerate the immunotherapies because of severe side effects and she succumbed to the disease in a hospice facility.  The decedent’s estate maintained that it was incumbent upon our client to perform a biopsy at the initial visit in January 2017 or schedule a 3-month interval appointment to evaluate the lesion.  In turn, the estate alleged that the decedent was deprived a substantial opportunity for a cure had the diagnosis been made earlier at stage 0 or stage 1 and the chance of a 5-year survival went from 77%/70% to less than 50% at the time of diagnosis.  In closing, plaintiff’s counsel requested an award of approximately $15 million including $10 million for loss of guidance.  While comparative negligence was included on the verdict sheet, the jury returned a verdict finding there were no departures on behalf of our client.  

HPM&B celebrates the strength, resilience and unity of the Black community during Black History Month. #BlackHistoryMonth #CelebratingBlackHistory #Unity 

HPMB obtained a withdrawal on the eve of trial with no payment made. The matter involved an unwitnessed fall with resulting in a traumatic brain injury (TBI) and humerus fracture requiring surgery. Plaintiff disclosed an expert witness to support her claims that upon admission, the defendant failed to properly complete a fall risk analysis, which rendered the care plan and resulting fall risk interventions in place as wholly inadequate. HPMB disclosed expert witnesses and maintained an aggressive procedural posture. HPMB completed an EBT of plaintiff’s out-of-state expert witness where it obtained concessions from the expert that two of the three measures plaintiff alleged were required by the standard of care, were in fact not permissible forms of intervention allowed in Connecticut based skilled nursing facilities, and the third measure alleged to violate the standard of care was actually fulfilled by the defendant’s staff. HPMB maintained a “no-pay” position and prepared aggressively for trial including filing several motions in limine to preclude plaintiff’s presentation of evidence at trial. Rather than oppose HPMB’s pretrial motions and face a ruthless cross-examination of plaintiff’s expert witness, Plaintiff’s counsel filed a withdrawal of action the day before jury selection was to commence.   HPMB obtained a withdrawal in a refiled matter alleging negligence by a physical therapist in an acute rehabilitation facility. Plaintiff alleged that the physical therapist failed to diagnose a post operative periprosthetic knee fracture, which caused the plaintiff to endure tremendous pain and suffering before undergoing corrective surgery. HPMB obtained a dismissal of the initial action against the physical therapist. Thereafter, Plaintiff refiled the action against the physical therapist under the accidental failure of suit statute. Two co-defendants settled. HPMB took immediate action to secure an apportionment of liability claim against the settled and released co-defendants, which included adopting/ retaining plaintiff’s expert witnesses and disclosing its own physical therapy experts. In addition, HPMB noticed EBTs of the adopted experts, released codefendant ED orthopedist, and plaintiff’s husband and granddaughter. Moreover, HPMB maintained a “no-pay” position and prepared aggressively for trial including filing several motions in limine to preclude plaintiff’s presentation of evidence at trial. Rather than oppose HPMB’s pretrial motions, on the eve of trial, the plaintiff withdrew the matter against the HPMB defendant.

HPMB attorneys Jeannine Foran and Keith Blumenstock recently obtained withdrawals-- without any payments made ---in three highly contested medical malpractice matters in Connecticut involving significant and permanent injuries.   HPMB obtained a withdrawal in a refiled matter alleging medical negligence at a skilled nursing facility. The plaintiff alleged the facility’s medical staff neglected to manage the nutritional status of a resident, which caused significant weight loss and ultimately death. In the initial action, the court granted HPMB’s motion to dismiss. Thereafter, Plaintiff refiled under the accidental failure of suit statute, and argued that a recent CT Supreme Court decision relaxed the requirements regarding authors of good faith opinion letters. In opposition, HPMB filed a second motion to dismiss arguing the dismissal of the original action was a result of an egregious mistake despite the recent “relaxed” requirements for opinion letters, and thus the refiled action did not qualify under the accidental failure of suit statute. Following established case law, the trial judge scheduled an evidentiary hearing on the motion to dismiss to allow HPMB to cross examine opposing counsel on his reasoning for obtaining the original good faith opinion letter from an unqualified expert. On the eve of the hearing, the plaintiff filed a withdrawal of action. 

HPM&B recently obtained a voluntary dismissal at the conclusion of discovery for an orthopedic surgeon and a major metropolitan hospital. In this Bronx County action, the plaintiff alleged improper performance of a total knee replacement resulting in loosening of the tibial component for which a revision was performed. The defendants demonstrated that the components were all properly placed at the time of surgery and that tibial loosening is a known risk of a total knee replacement that occurred through no act or omission of the defendants.

HPM&B was recently awarded summary judgment dismissal in a Bronx County action for a renowned spine surgeon, anesthesiologist, CRNA, and premier orthopedic surgery institution. Plaintiff alleged improper positioning during spine surgery resulting in ulnar neuropathy at the elbow. Through discovery, the defense sought and obtained medical records dating back to the 1980’s demonstrating the plaintiff had been experiencing such symptoms for decades prior to the surgery at issue. At the conclusion of discovery, the defense moved for summary judgment with the support of experts in spine surgery, anesthesiology, neurology, and vascular surgery. Collectively, these experts opined the plaintiff was properly positioned throughout the procedure and there was no causal link between positioning and the outcome because the patient had longstanding thoracic outlet syndrome. The Court granted the motion and the case was dismissed.

HPM&B recently obtained a defense verdict in New York Supreme Court, Kings County after a jury trial. Plaintiffs alleged that our client, an otolaryngologist, failed to diagnose laryngeal cancer by performing a biopsy on a polypoid lesion on the then 66-year-old patient’s left vocal cord prior to his last treatment with our client. Plaintiffs further alleged that our client failed to inform the patient of a possibility of a malignancy.  Plaintiffs alleged that the patient’s cancer would have not progressed to Stage IV cancer with him requiring a laryngectomy if our client had performed a biopsy on the vocal cord. In closing, plaintiffs’ counsel requested an award of $7 million.   After deliberations, the jury returned a verdict finding no departures on behalf of our client.

The First Department recently affirmed the decision of the lower court granting HPMB’s motion for summary judgment on behalf of a New York City attending anesthesiologist and a major teaching Hospital. Plaintiff alleged negligent positioning while she was under anesthesia that allegedly caused a rotator cuff injury and hip bursitis. The First Department astutely noted that plaintiff’s expert conceded in their original opposition papers that the defendants met the standard of care, and that plaintiff only raised a new theory of liability in opposition to the motion, which the lower court properly declined to consider. The First Department further held that even if it were to consider the new theory of liability, dismissal would be proper because plaintiff’s expert failed to raise an issue of fact as the affidavit was conclusory and failed to controvert the opinions of defendants’ experts. This was a great result for HPM&B.