Case Dismissal

HPM&B recently obtained dismissal of all claims on behalf of an attending internist and a major hospital system in New York. This medical malpractice action was venued in Supreme Court, Rockland County and involved allegations that the defendants failed to properly manage COVID-19. Specifically, plaintiff claimed negligent oxygenation, inadequate essential nutrition, and improper and untimely pulmonology evaluations, which resulted in unnecessary pain and suffering and lost wages. After almost two years of non-compliance with discovery orders, defendants made a motion to dismiss arguing that plaintiff’s repeated failures to abide by several prior discovery orders rose to the level of willful and contumacious conduct. Defendants demonstrated to the court that plaintiff repeatedly failed to serve proper Bills of Particulars with specific and tailored allegations as to each defendant, failed to serve fully executed HIPAA-complaint authorizations, failed to provide proof for special damages, and disclosed no documentary evidence to support the claim for lost earnings. The court allowed plaintiff one final opportunity to address the discovery deficiencies, but defendants once again showed the court that the responses were insufficient. The court ultimately ordered that the Complaint be stricken and that the action be dismissed in its entirety. While acknowledging that the striking of a pleading as a remedy for failure to respond to discovery orders is a drastic one, the court found that the plaintiff’s conduct rose to the level of willful and contumacious and that a dismissal was warranted.