While many people who suffer harm due to medical malpractice wish to resolve any lawsuit arising out of the malpractice as quickly as possible, some people delay in pressing the case forward. In cases where a delay constitutes a violation of the rules of civil procedure, it may result in the injured party’s case being dismissed altogether. Recently, a New York court discussed the ramifications of a plaintiff’s failure to prosecute a claim in a hospital malpractice case. If you or someone you loved were harmed by negligent care rendered in a hospital, it is in your best interest to speak with a diligent Syracuse hospital malpractice attorney to discuss your options for seeking damages.
Facts of the Case
It is alleged that the plaintiff’s decedent was a resident of the defendant nursing home and received care at the defendant hospital prior to her death. In November 2014, after the plaintiff’s decedent passed away, the plaintiff instituted a malpractice claim against the defendants, alleging that they breached the applicable standards of care, thereby causing the decedent’s death.
Reportedly, on March 20, 2019, the defendants served a 90-day notice on the plaintiff for failing to prosecute the case. The notice advised the plaintiff’s that a default would be entered against her if she did not take action. The plaintiff then filed a motion to vacate the notice or in the alternative for an extension of time to file a note of issue.
Default for Failing to Prosecute a Medical Malpractice Case
Under New York law, a defendant may file a 90-day notice to attempt to expedite the prosecution of the case. Upon receipt of the notice, the plaintiff must serve a motion to vacate the notice or extend the time in which the plaintiff is required to reply, or by filing a note of issue. If a plaintiff fails to take either action, the plaintiff’s case may be dismissed.
In some cases, however, a plaintiff can avoid dismissal despite failing to act, if the plaintiff can show that his or her cause of action has merit and that he or she has a valid excuse for the default. To prove a case has merit, the plaintiff must produce an affirmation or affidavit from someone with personal knowledge of the facts of the case. If the plaintiff files a motion prior to the end of the 90-day period, however, no affidavit or affirmation is needed.
In the subject case, the record did not reflect how the 90-day notice was served or when it was received. The plaintiff admitted, however, when she received the notice, and the court found, based on that admission, that her motion was made after the 90-day period expired. Thus, the plaintiff was required to prove the merits of the case. The court found that the affirmations provided by the plaintiff were inadequate to prove she had a valid claim. Thus, the court denied the plaintiff’s motion.
Consult an Experienced Hospital Malpractice Attorney
If you lost a loved one due to inadequate treatment in a hospital, you should consult an experienced Syracuse hospital malpractice attorney to discuss your rights and potential claims. The proficient attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers are adept at handling malpractice cases in the New York courts and will zealously pursue any damages you may be owed. You can contact us at 833-200-2000 or via our form online to set up a meeting regarding your case.