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Court Affirms Dismissal of New York Emergency Room Malpractice Case Due to Failure to Serve Complaint

When a person wishes to pursue a medical malpractice claim in New York, he or she must not only prove that the defendant doctor negligently caused his or her harm, the person must also serve the defendant with the lawsuit within the statutorily prescribed timeframe. In other words, even if a lawsuit is filed within the appropriate time period, a party’s claim may nonetheless be dismissed if it is not properly served. A court of the appellate division of the Supreme Court of New York recently illustrated the importance of timely service, in a case in which the court affirmed the dismissal of an emergency room malpractice case. If you were harmed by inadequate care rendered by an emergency room physician, it is crucial to meet with a trusted Syracuse emergency room malpractice attorney regarding your harm and your potential claims.

Facts and Procedure of the Case

It is reported that the plaintiff visited the emergency department of the defendant hospital in November 2012. In December 2014, the plaintiff filed a malpractice lawsuit against the defendant hospital and defendant doctor, arising out of the defendant doctor’s alleged failure to diagnose the plaintiff with a large pneumothorax during his November 2012 emergency room visit. In September 2015, the plaintiff filed a motion to extend his time to serve the defendant doctor with the summons and complaint, which the court granted. In January 2016, a process server allegedly delivered a copy of the summons and complaint to a person of appropriate age and discretion at the defendant doctor’s place of business. Additionally, the process server mailed a copy of the summons and complaint to the defendant doctor at his place of business.

It is alleged that on April 2016, the plaintiff moved for leave to file a default judgment against the defendant doctor, due to his failure to enter an appearance or file a response to the complaint. The court granted the motion. The defendant doctor subsequently filed a motion to vacate the order granting the default judgment and to determine the validity of the service of process. The plaintiff filed a cross-motion for an extension of time to serve the defendant doctor with the complaint and summons. The court ultimately found that the defendant doctor was not properly served, vacated the order granting default judgment, and dismissed the plaintiff’s complaint as it pertained to the defendant doctor. The plaintiff appealed.

Effecting Service of Process

On appeal, the appellate court affirmed the trial court ruling. The court found that the process server’s affidavit of service was not admissible as evidence, due to the plaintiff’s failure to secure the process server’s testimony at a hearing to determine the validity of service. Additionally, the court held that the trial court properly denied the plaintiff’s motion for additional time to serve the complaint and summons. The court stated that the plaintiff had not demonstrated good cause for an extension of time, in that he did not establish that he exercised due diligence in attempting to serve the defendant.

Retain an Experienced Emergency Room Malpractice Attorney

Recovering compensation for harm in a New York medical malpractice case requires the assistance of an attorney who is adept not only at proving liability, but who also adheres to the requirements of the rules of civil procedure. If you sustained damages because of an emergency room doctor’s surgical errors it is essential to retain an experienced Syracuse emergency room malpractice attorney to represent you in your pursuit of damages. The capable attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers have the knowledge and experience to develop a compelling case that will provide you with a strong chance of a successful outcome. You can contact us at 315-479-9000 or via the online form to schedule a conference to discuss your potential claims.

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