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Peck v. Brookdale Hospital Medical Center1/11/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Plaintiff in this medical malpractice action has moved for a special trial preference in the interests of justice, pursuant to CPLR 3403(a)(3). Plaintiff already has a trial preference as she has an action to recover damages for medical malpractice under CPLR 3403(a)(5). The question presented here is whether she is entitled to stack an additional preference on to this, giving this case priority on the already accelerated medical malpractice calendar. Plaintiff is indigent and she is currently under twenty-four hour per day care in a nursing home, the costs of which are fully paid by Medicaid.
Plaintiff alleges that she was a healthy forty-six year old woman on December 21, 2001 when she went to defendant Brookdale Medical Center for an elective ambulatory procedure to remove a benign cyst. Following the procedure plaintiff was discharged to her home. She then returned to the hospital the following evening and was treated and released.
Plaintiff returned again to defendant Brookdale Hospital on December 24, 2001 and has been under institutional medical treatment ever since. Plaintiff claims that defendant's malpractice caused her to deteriorate from a healthy, self-sufficient and gainfully employed woman to a destitute, paralyzed invalid. As of August, 2004 Medicaid has asserted a lien for her care in the amount of $477,304.00
Plaintiff is unable to speak, however, she is conscious and communicates by blinking her eyes. Plaintiff's sister, who is her guardian ad litem, has requested this trial preference in order to recover the necessary funds for plaintiff to be cared for in her home rather than in a nursing home. The guardian ad litem persuasively contends that plaintiff will be happier and more comfortable at home surrounded by her friends and family than in a nursing home and that the only possibility for Ms. Peck to return home would be to end her reliance on Medicaid by expeditiously and successfully resolving resolve this lawsuit.
Plaintiff contends that defendant has delayed discovery and even now discovery continued through the month of December 2004, three years after the catastrophic injuries to plaintiff.
The issue of multiple preferences is elucidated in the case of Green v. Vogel, 144 AD2d 66 (2d Dept., 1989). In Green, the plaintiff in a medical malpractice case was eighty six years old and she contended that an additional preference over other medical malpractice cases on the court's trial calendar was required based upon her entitlement to a separate preference for her age under CPLR 3403(a)(4) for persons over seventy years of age. The trial court denied plaintiff's motion and this denial was upheld by the Second Department. However, the Second Department took the opportunity to discuss the question of calendaring a case in which a party may be entitled to more than one trial preference, stating:
"We conclude that there is no automatic entitlement to the granting of more than one trial preference per action. Rather, we hold that a Trial Justice may, in accordance with the broad latitude granted by the Uniform Rules for the New York State Trial Courts and in the exercise of sound judicial discretion, facilitate prompt trial of those actions which present extraordinary or exceptional circumstances in order to further the ends of justice."
The Appellate Division continued its analysis finding that the legislative intent of the preference statute was not to create multiple preferences for persons w
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