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Court Discusses Dismissal of Medical Malpractice Cases for Lack of Prosecution in New York

In a medical malpractice case, whether the plaintiff’s claims are ultimately successful depends on numerous factors, including whether the plaintiff complies with the rules of procedure. In other words, even if a plaintiff has a meritorious claim, if he or she does not move his or her case along in a reasonable fashion as required under New York law, the plaintiff’s claim may be dismissed, despite the fact that the defendant may have caused the plaintiff’s harm. This was demonstrated in a recent New York case in which a woman sought damages for harm caused by a gynecologist, but failed to take any action in the case for over a year. If you were harmed by incompetent gynecological care, it is prudent to speak to a trusted Rochester gynecologic medical malpractice attorney to analyze whether you may be able to recover damages.

Factual and Procedural History

It is alleged that the plaintiff visited the defendant fertility clinic for an egg donation procedure. Prior to the procedure, the defendant’s employees administered an excessive amount of medication to the plaintiff, which resulted in ovarian hyperstimulation syndrome and multiple ovarian cysts. As such, the plaintiff filed a medical malpractice case against the defendant. The plaintiff filed her lawsuit in April 2015, and in September 2015, the plaintiff joined the issue, and the defendant served the plaintiff with demands for a bill of particulars, discovery requests, and a deposition notice. The plaintiff failed to respond, however, and until July 2017, when she served the defendant with discovery responses and a bill of particulars.

Reportedly, the defendant then sent the plaintiff another deposition notice. Depositions were never conducted or scheduled, however, and no other developments occurred in the case. As such, in 2020, the defendant filed a motion to dismiss the plaintiff’s complaint for lack of prosecution.

Justifiable Excuse for Delaying A Case

Under New York law, a complaint may be dismissed for lack of prosecution, where the plaintiff unreasonably fails to proceed, fails to serve and file a note of issues, or otherwise delays the prosecution of an action. A complaint will not be dismissed unless issues have been joined in the action, and at least a year has passed since joinder of issue, and the court or party seeking dismissal serves a written demand on the plaintiff to file a note of issue within ninety days. If the plaintiff then fails to file a note of issue within the ninety-day period, the court may dismiss the plaintiff’s complaint unless the plaintiff demonstrates a justifiable excuse for the delay and a meritorious and good cause of action.

In the subject case, more than a year passed from the joinder of issue, and the defendant sent a written demand on the plaintiff to serve a note of issue. The plaintiff did not serve a note of issue, however, and thus was required to set forth justifiable reasons for her delay and to demonstrate she had a good cause of action. The court explained while it did not appear that the plaintiff intended to abandon the case, the delay in prosecution was considerable, and the plaintiff offered no excuse for the delay. Thus, the court granted the defendant’s motion.

Meet with an Experienced Rochester Attorney

If you were injured by inadequate care rendered by a gynecologist, it may be in your best interest to meet with an experienced Rochester gynecologic medical malpractice attorney to discuss your potential claims. The attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers are adept at aiding people harmed by medical negligence in the pursuit of compensation, and we will fight tirelessly to help you seek a favorable outcome. You can reach us through our form online or at 833-200-2000 to set up a meeting.

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