Judge Tapia of Bronx County Supreme Court issued an interesting decision on March 31, 21015 on the issue of whether premature labor, causally related to a motor vehicle accident can qualify under the "Loss of Fetus" set forth in the definition of Serious Injury under Insurance Law § 5102 (d).

In 2011, the Appellate Division Second Department addressed the issue in Damas v. Valdes, 84 A.D.3d 87, 92-93, 921 N.Y.S.2d 114 (2011), stating, "We hold, as a general matter, that a plaintiff's prolonged period of bed rest ordered by a treating physician as a means of dealing with diagnosed preterm labor causally related to an automobile accident may, upon the submission of appropriate proof, qualify for judgment as a matter of law in favor of the plaintiff under the definitional standard of the 90/180-day category of Insurance Law § 5102 (d), even if the labor does not advance to the point of premature delivery or spontaneous abortion of the fetus."

Judge Tapia extended the concept noting premature labor, as a matter of law, outside of the 90/180 day category, separately qualifies as a serious injury under the "loss of fetus section of Insurance Law § 5102 (d)." As discussed above, although the Second Department has already ruled on this issue, the First Department has not. While this Court is mindful of the need to screen out cases of minor injuries, premature birth cannot be viewed as the type of insignificant injury the No-Fault regime sought to weed out nor can the medical conditions resulting from the premature birth be dismissed outright as insignificant. The Court finds that generally speaking, where there is adequate evidentiary support, a premature birth precipitated by a motor vehicle accident qualifies as a "serious injury". Rather than have to tie this serious injury to another category, i.e., permanent or significant loss or limitation or the resulting disfigurement, the "loss of a fetus" category should be sufficient to stand alone as grounds for recovery. Otherwise, as demonstrated by the facts presented, an injury to a fetus whereby the gestation period is cut short by almost one third, would not be compensable. This is not a result that was intended when this category was added. It should be problematic that what disqualifies premature birth from recovery, is the fact that the fetus is born alive, that is, if a fetus survives a motor vehicle accident, there is no grounds for serious injury. This is very strange logic and if interposed into any of the other categories each serious injury threshold would be insurmountable. It makes even less sense to impose such a harsh exception upon expecting mothers given their specific vulnerability. A common sense approach to dealing with premature birth in light of the inherent seriousness of the injury should be adopted."

Congratulations to Frank Scahill who received the "Leadership in Law" award from LIBN on November 13th. His wife Tracy, son James and daughters Kathleen and Claire joined the celebration along with P&S staff. Frank's daughter Eileen was unable to attend, but she wants everyone to know how proud she is of her Dad!

James, Frank, Kathleen and Claire Scahill

When does zealous advocacy cross the line for a defense counsel and cause a mistrial based on improper comments in summation or a line of questioning on cross-examination that the court deems prejudicial?

Obviously there is no bright line rule in this area and in large part depends on what judge you are before. Would Judge Winslow or Judge Wexler cut you off at the knees before your cross got too far? I would say the answer to that question is a resounding yes.

Would another judge give you enough rope to hang yourself and cause a mistrial? Well, yes that happens too. Marx v. Rosalind, decided by Judge Spinner on January 14, 2014 is worth a close look.

In this case against the Rosalind and Joseph Gurwin Jewish Geriatric Center of Long Island, the plaintiffs claimed negligence against the nursing home for failing to properly treat the decedent who suffered decubitus ulcers, prior to her death in 2005.

The defense, through cross-examination, tried to show the patient was difficult, had previously abused the staff and had a psychiatric admission to South Oaks Psychiatric Center.

The court insisted that the behavior of the decent was not at issue and the questioning of the plaintiff's witnesses on a psychiatric admission, so tainted the jury, to warrant a mistrial.

The line of inquiry defense counsel attempted was, in our view, proper, however; the problem was that the records, upon which the cross-examination was based, were not in evidence.

Judge Spinner ruled, "The record demonstrates that Sandonato was attempting to solicit testimony from Marx, a lay witness, from a hospital record which was not in evidence, was not subpoenaed to the court and not received by the court. While the court sustained plaintiff's counsel's objections to this line of questioning four times in succession, Sandonato intentionally and repeatedly continued this line of questioning, in a manner prejudicial to the plaintiff, poisoning the jury, resulting in a mistrial."

The court ordered a hearing on sanctions to be imposed in this matter. The case is likely to be seen shortly in the Appellate Division, if the matter is not resolved. (see Maraviglia v. Lokshina (92 A.D.3d 924, N.Y.A.D. 2 Dept., 2012), decided by the Second Department in 2012.

In this medical malpractice action, defense counsel made remarks on summation that the plaintiff's treating physician and the plaintiff were "working the system."

He also commented that the injured plaintiff's treating physician testified "at an enormous amount of Workers [Compensation] proceedings" and was the "go-to" doctor in Suffolk County for patients who wished to stop working.

By contrast, counsel vouched for the credibility of the defendant's expert witness by thanking "God there are people like [him] who are the stop gap."

During cross-examination of the plaintiff's expert anesthesiologist, counsel for the defendants twice referred to the medical center where this doctor performed certain procedures as a "parking lot".

Here, a defense verdict was overturned and the case settled before trial in 2013.

Read the decision here.

Rebates paid by an insurance broker to the insured are generally prohibited by statute. Insurance Law section 2324(a), prohibits insurance brokers from paying "either as inducement to the making of insurance or after insurance has been effected, any rebate from the premium which is specified in the policy, or ... any valuable consideration or inducement of any kind, directly or indirectly, which is not specified in such policy or contract ..." in the context of property/casualty insurance, but not, inter alia, accident and health insurance (see Insurance Law (hereinafter "Ins. Law") § 2302(a) excluding some forms of insurance from the provisions of Article 23, which regulates insurance rates so as to avoid discrimination (see Ins. Law § 2301). Various other statutes prohibit rebating in the context of other types of insurance (see, e.g., § 4224((b)-(c)) (accident and health insurance); § 6409 (d) (title insurance); § 6504(b)(1)(mortgage insurance); § 6904 (g) (financial guaranty insurance).

The purpose of the anti-rebate statutes is to ensure that insurance providers, including brokers, "provide insurance in a non-discriminatory manner to like insureds or potential insureds, and to prohibit such an insurer or insurance producer from providing an insured or potential insured with any special benefit not afforded to other insureds or potential insureds" in those areas of insurance that are covered by statute (see Circular Letter of March 3, 2009, from the State of New York Insurance Department, cited by defendant).

Hirsch Wolf & Co., (Wolf) an insurance broker, tried to persuade his client to place workers' compensation insurance in a specific program, the Health Insurance Trust of New York (HITNY).

When the client expressed concerns that the program may be subject to a retroactive adjustment, Wolf guaranteed that if any adjustment occurred, he, or his company, would pay 50% of any retroactive adjustment for the 2003-2004 policy year.

As a result of this guarantee, plaintiffs placed their workers' compensation coverage with HITNY for the 2003-2004 year and in subsequent years.

When the HITNY became insolvent the Workers' Compensation board ordered retroactive assessments and the client sued the broker to collect on the guarantee. Wolf argued that the guarantee is unenforceable as illegal, because it violates provisions of the New York Insurance Law prohibiting an insurance broker from selling a policy to a client with the promise that he will refund or rebate a portion of the premium.

On January 14, 2014 Judge Demarest of New York County Supreme Court decided the issue in Cliffside Nursing Home Inc. v. Estate of Wolf (42 Misc.3d 1213(A)).

In a fatal error to the motion, counsel failed to include a copy of the policy which was the subject of the case. Judge Demarest denied the motion stating, "The vice is not in the giving of a rebate, inducement, or consideration, but the giving of any rebate, inducement, or consideration not specified in the policy. As copies of the insurance policies have not been produced, the court is unable to make a determination as to the legality or illegality of the guarantee."

Read the decision here.