Under New York law, people injured by incompetent medical care must pursue claims for damages within a certain timeframe, or they may waive the right to recover compensation. In other words, a patient must not only file a medical malpractice lawsuit within the statute of limitations but must also actively prosecute the claim once it is filed; otherwise, the claim may be dismissed. This was illustrated in a recent ophthalmology malpractice case in which the plaintiff’s repeated delays in litigating her claims resulted in the dismissal of her lawsuit. If you suffered injuries due to negligent eye care, it is advisable to speak to a knowledgeable Rochester ophthalmology malpractice attorney regarding your rights.
The Plaintiff’s Claims
Reportedly, the plaintiff underwent surgical placement of an intraocular lens, which was performed by the defendant ophthalmologist. She suffered complications during the procedure that led to hemorrhaging and the permanent loss of vision in her right eye. She then filed a malpractice lawsuit against the defendant, alleging his failure to direct her to stop taking prescription blood thinners prior to the procedure caused her to suffer harm.
Allegedly, in January 2014, the defendant filed an answer to the plaintiff’s complaint and served the plaintiff with a demand for a bill of particulars and discovery. Plaintiff initially did not respond, but ultimately sat for a deposition. No other action was taken to further the case, however. In April 2018, the defendant served the plaintiff with a notice to resume prosecution, advising the plaintiff he would move to dismiss her case if she did not file a note of issue within 90 days. The plaintiff did not comply with the demand, and her case was dismissed, after which she appealed.
Dismissal of a Case for Failure to Prosecute
On appeal, the court explained that under New York law, if a plaintiff fails to comply with a 90-day demand to file and serve a note of issue and has not moved for an extension of time or to vacate the demand, the defendant’s motion to dismiss for failure to prosecute should be granted. There are exceptions, though, for cases in which the plaintiff demonstrates both a justifiable reason for the delay and a meritorious and good cause of action.
In assessing whether a plaintiff’s cause for delay is adequate, a court must assess the degree of merit shown, as well as other elements, such as the extent of the delay, the prejudice to the defendant, the seriousness of the plaintiff’s harm, and whether the plaintiff intended to abandon the case.
In the subject case, the court found that the plaintiff engaged in dilatory tactics and failed to move the case forward for years. Further, despite alleging that the failure to respond to the 90-day notice was due to her lawyer’s shortcomings, she did not produce a certificate of merit showing she had a valid claim. As such, the dismissal of her case was affirmed.
Meet with an Experienced Rochester Attorney
It is critical that anyone who wishes to pursue medical malpractice claims complies with the relevant procedural rules to avoid an adverse outcome. If you were injured by a careless eye doctor, the experienced Rochester ophthalmology malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers can advise you of your rights and help you to pursue any damages you may be owed. You can reach us through our form online or by calling 585-653-7343 to set up a consultation.