Matter of Bouton, Putnam County Surrogate’s Court (February 17, 2012; File No. 2009/235)
Often, controversies in families arise from a decedent's alleged decisions on gifts; and then a property turnover proceeding take place in the Surrogate's Court to deal with property that is the subject of a gift. Here, McCarthy Fingar lawyers, Katherine Sohr Jedlicka, Elizaveta S. Korotkova, and Joseph J. Brophy, successfully opposed a summary judgment motion by opposing counsel seeking dismissal of a "reverse" property turnover proceeding brought on by our client. The reverse turnover proceeding demanded that the Estate fiduciary turn over property belonging to McCarthy Fingar’s client under a family agreement made out of court regarding distribution of the assets of the Decedent’s Estate. The court denied the motion, refusing to rule that the family agreement was unenforceable as a matter of law and determining that issues of fact exist as to its validity. The court similarly denied the movant’s request for alternative relief of dismissing the reverse turnover proceeding as to the Administrator’s siblings (also distributees) as unnecessary parties, finding that the court’s determination as to how the Estate will be distributed affects all distributees’ rights; and, therefore, all distributees were interested parties in the proceeding.
Settlement of Claims for Negligent Dispensing of Wrong Prescription Medication
Even with the advances of technology in modern medicine, there is still room for human error. Dina M. Aversano together with Joseph J. Brophy successfully represented a plaintiff who suffered an almost potentially severe injury from a prescription dispensing error. First through a claims resolution process, and secondarily, outside of court, they were able to work amicably with the defendant pharmacy in reaching a just and fair settlement for the client.
Recovery of over $300,000 Owed to Disabled Woman on Attorney's Improper Use & Distribution of Settlement Funds
McCarthy Fingar's lawyers are sometimes retained to recover funds from lawyers who improperly fail to give their clients moneys due them. In 2008, McCarthy Fingar partner, Joseph Brophy, who leads the firm's Legal Malpractice group, was contacted by the grandmother of a disabled young woman. The grandmother had recently been appointed as guardian by the court in place of the young woman’s parents, who were squabbling over control of money that had been awarded to their daughter in settlement of a lawsuit several years before. The grandmother was concerned that the father may have misappropriated $125,000 of her granddaughter’s money that had been entrusted to him by the court to help pay for housing for the granddaughter. The grandmother had asked the court for information, but had been told that the settlement papers were sealed. She retained Joe to apply to get access to the sealed settlement documents. The prior attorneys were uncooperative and Joe had to bring on a special proceeding to obtain the settlement documents. When he did obtain them, Joe learned that the attorneys had released $125,000 to the father in violation of a court order requiring the father to file a security interest in the house he was buying, to protect his daughter’s funds, before the money was released. After buying the house, he had then mortgaged it twice, so the $125,000 had in effect gone into the father's pocket. Joe also learned that the former lawyers had been awarded hundreds of thousands of dollars by the court for expenses in anticipation of a trial that had never taken place, and that they had never accounted to the court or their clients for any of that money. After Joe filed a legal malpractice claim against the attorneys and brought on an application for contempt against the lawyers and the father, the lawyers pressured the father to place a lien upon the house, accounted for the funds, and refunded over $177,000 to Joe’s client. The father eventually sold the house and paid back the $125,000 he owed to his daughter.
Personal Injury - Building Collapse - $1.7 Million Verdict
Dalloo v. Keyspan (Supreme Court, Suffolk County, 2010)
Skilled personal injury lawyers understand the best ways to get good outcomes when their clients suffer serious injury. Here, Joseph J. Brophy successfully obtained a $1.7 million jury verdict in a gas explosion, in behalf of a 40 year old woman who suffered severe neck and back injuries requiring spinal surgery, traumatic brain injury, and post-traumatic stress disorder in a building collapse.
Joseph J. Brophy, after a bench trial, successfully won a directed verdict in favor of the firm’s client, who owned and operated an auction gallery in Connecticut. The plaintiff sought recovery from the auction gallery on the grounds that it was liable for loss of her consigned goods on three different theories of recovery. In granting the directed verdict dismissing all three of plaintiff’s theories, the Supreme Court found the plaintiff presented no factual support of her claims at trial and a judgment dismissing her claims was warranted. Dina M. Aversano, together with Joseph J. Brophy, wrote the appellate brief that successfully opposed the plaintiff’s appeal from the direct verdict judgment to the Appellate Division, Second Department. The Second Department unanimously affirmed the direct verdict, and awarded costs associated with the appeal in favor of the auction gallery. Following denial at the Appellate level, the plaintiff sought leave of the Court of Appeals for a further appeal. Dina successfully opposed this motion, and leave was denied.
Legal Malpractice - Jury Trial & Settlement - Effective Cross Examination
Legal Malpractice Case Settled During Trial & After Effective Cross Examination
Successful settlements often only happen during a trial, and just before a jury verdict. This legal malpractice matter was jointly tried before a jury by Joel M. Aurnou and Joseph J. Brophy. The allegation was that the our client’s matrimonial lawyer had failed to identify an expert witness in time, forcing her to settle her matrimonial case for a fraction of its true value. To add insult to injury, her former lawyer then sued her for unpaid attorney’s fees. She retained McCarthy Fingar, and counter claimed for legal malpractice. The case only went to trial after Joel Aurnou and Joe Brophy had defeated two attempts by the lawyer to have the counterclaim dismissed. At trial, after three days of cross-examination of the defendant attorney by Joel, the insurer added $500,000 more to its settlement offer that permitted the case to end very favorably for our client.
Settlement of SCPA 2103 Turnover Claim Through Alternative Dispute Resolution Forum
Dina M. Aversano and Joseph J. Brophy represented the respondent under a SCPA 2103 Turnover proceeding as it concerned the claim brought by the Executor of an Estate for the return of two limited partnership ownership interests to the estate. Following successful motion practice in the Surrogate’s Court Westchester County, the Executor of the Estate and the respondent opted to engage in mediation, resulting in a beneficial outcome for each party.
Medical Malpractice & Personal Injury - Paraplegia - Delayed Diagnosis of Back Infection
$2 Million Settlement (Supreme Court, Westchester County, 2007)
Sometimes, medical malpractice takes place when a patient sustains serious injury after a doctor fails to diagnose a medical problem. Joseph J. Brophy obtained a $2 Million settlement during trial in a medical malpractice case in which Joe's client developed paraplegia due to a delayed diagnosis of a back infection while he was a patient in a rehabilitation facility. The patient, a 55 year old diabetic, had complained about increasing pain in his back, and was making no progress in physical therapy while recovering from a bout of sepsis, a generalized blood infection. His doctor attributed his pain to a muscle strain and did not consider the possibility of an infection until the patient could no longer walk at all. He was then taken to the emergency room where a spinal cord abscess was discovered.
$2.6 Million Settlement (Supreme Court, Bronx County, 2006)
Few lawyers understand the intricacies of bringing on a wrongful death case. In this case, Joseph J. Brophy commenced a wrongful death case and obtained a $2.6 Million medical malpractice settlement prior to trial, in the death of a 36 year old unemployed mother of five due to an undiagnosed brain aneurysm. The decedent had gone to an emergency room twice in a week complaining of a very severe headache. On the first occasion no doctor saw her at all. On the second occasion, the doctor saw her but failed to obtain the history of the prior visit. Her symptoms then went away, but two months later she suddenly lost consciousness. X-rays revealed an aneurysm that had ruptured, with evidence that it had previously leaked blood. She died before she could be taken to the operating room.
Personal Injury - Motor Vehicle Accident - Paralyzed Arm - Traumatic Brain Injury
$4.5 Million Settlement (Supreme Court, Nassau County, 2005)
When a client is in a serious car accident, it is essential that a claim is aggressively pursued to trial, if there is going to be a fair settlement. Here, Joseph J. Brophy obtained a $4.5 million settlement during trial for a motor vehicle accident. Joe's client, 18 years old at the time, was a passenger in a vehicle which struck a tractor trailer that was stopped on a dark roadway with its lights off. His injuries included a permanently paralyzed arm, chronic pain and traumatic brain injury.
$2 Million Settlement (Supreme Court, Orange County, 2004)
Surgical and anesthesia problems are another example of medical malpractice that could bring permanent injury or death to a patient. Joseph J. Brophy obtained a $2 Million settlement during trial in a wrongful death medical malpractice case involving the negligent administration of anesthesia in the death of a young mother of five. The settlement was for the anesthesiologist’s insurance policy limits.
Medical Malpractice & Personal Injury - Undiagnosed Pulmonary Embolism
$1.7 Million Settlement (Supreme Court, Westchester County, 2002)
Wrongful death actions often arise from a doctor's failure to diagnose a medical ailment. Joseph J. Brophy obtained a $1.7 Million settlement in a medical malpractice case in which the patient, a 39 year old accountant, died six weeks after giving birth, due to an undiagnosed pulmonary embolism. She had gone to her family doctor complaining of shortness of breath twice in a week prior to collapsing at home and dying in a matter of minutes.
$1.4 Million Settlement (Supreme Court, New York County 2002)
Failing to diagnose cancer is a common form of medical malpractice. Joseph J. Brophy obtained a $1.4 million settlement of a medical malpractice case during jury selection. In this case, a 34 year old woman died due to a failure to diagnose breast cancer. She had been going to her medical group for over a year complaining of a lump in her breast. A surgeon sent her for mammograms and for an ultrasound, but told her that a biopsy was unnecessary. When she began feeling ill, she went to another medical practice, where a physician’s assistant recommended that she obtain a biopsy. It revealed advanced breast cancer. She declined chemotherapy, and six months later she died at home.
Medical Malpractice & Personal Injury - Error in Laparascopic Surgery
Rothstein v. Mayer (Supreme Court, Orange County, 2001)
Surgical errors are a common theme in medical malpractice cases. Joseph J. Brophy successfully obtained a $1 million jury verdict in a wrongful death of 61 year old woman due to a surgical error. The decedent had abdominal pain due to adhesions (internal scarring) from prior surgery. The defendant doctor performed a laparascopic procedure and in the process perforated her colon, but did not realize he had done so. After she began complaining of pain, the doctor delayed in sending her to the hospital. By the time she arrived, she had a severe infection that resulted in her death ten days later.
Sometimes, lawyers fail to identify and pursue a claim that should have been brought for a client; and sometimes the trial court makes the wrong decision when a legal malpractice claim is filed. Here, Joseph J. Brophy obtained a reversal from the Appellate Division, Second Department, on a legal malpractice action brought against an attorney for a failure to prosecute a claim for a client. The malpractice claim had been wrongly dismissed by the trial court.
Medical Malpractice & Personal Injury - Undiagnosed Malaria - Blindness - Brain Injury
$4.15 Million Settlement (Supreme Court, New York County; Superior Court, Montgomery County, State of Maryland)
Joseph J. Brophy obtained a $4.15 Million settlement in a medical malpractice case where undiagnosed malaria caused blindness and severe brain injury to a four year old child who was returning from Africa and became ill on the plane. He was taken first to a clinic at the airport, then to a hospital in Maryland and on both occasions he was thought to have bronchitis. Only after he lost consciousness some days later was the malaria diagnosed, and by this time he had suffered from a profound irreversible brain injury.
Medical Malpractice & Personal Injury - Piercing Corporate Veil
Arpels v. Fallek (Supreme Court, State of New York, New York County, 1996)
Joseph J. Brophy obtained a $600,000 verdict for an injured passenger, against a taxicab company that had minimal insurance. Investigation revealed that the taxicab company was part of a fleet, and the owner of multiple companies had taken out a single loan, in which all of the taxicab medallions owned by all the corporations served as collateral. Joe commenced an action against all of the companies, and their owner, seeking to pierce the corporate veil. Discovery revealed that the owner had deposited the proceeds of the loan into his personal accounts. During trial, the case was settled for $500,000.
Ball v. Shanahan (Supreme Court, Orange County, 1995)
One example of medical malpractice is when a doctor fails to diagnose cancer. Here, Joseph J. Brophy obtained a $1.3 million medical malpractice verdict for a failure to diagnose breast cancer in a 39 year old pregnant woman. During the pregnancy, she had noticed that her nipple was puckering, a finding not noted in her medical records. The doctor assured her that he would investigate it after the delivery, but he did not. However, the puckered nipple was noted in the baby’s records, because the mother could not nurse on that side. Six months after the delivery, the affected breast became painful and hard, and she was diagnosed with inflammatory breast cancer which had spread throughout her body. Breast cancer on pregnancy is a particularly dangerous form of the disease. A mastectomy was performed and the plaintiff underwent years of chemotherapy. At trial, the treating oncologist testified that she could expect to live only another year or two. Our client survived almost ten more years before the breast cancer took her life.
Medical Malpractice & Personal Injury - Work Site Injury - Labor Law Violation
$6.7 Million Settlement (U.S.D.C., S.D.N.Y. 1994)
Injuries on the job sometimes result from an employer’s failure to comply with the labor law. Here, Joseph J. Brophy obtained a $6.7 Milllion settlement in a case involving a work site injury and a labor law violation. Joe's client, a 40 year old part-time roofer, suffered from quadriplegia after falling from a scaffold.
Medical Malpractice & Personal Injury - Mistreatment of Dehydration of Baby - Cerebral Palsy
Godin v. Schapiro (U.S.D.C., N.D.N.Y. 1992)
Joseph J. Brophy obtained a $12.3 million medical malpractice verdict for mistreatment of dehydration of baby, resulting in cerebral palsy. She was born healthy, but got sick at three weeks of age and stopped taking formula. The pediatrician gave the mother advice over the telephone, but did not ask her to bring the baby to the office to be examined. After several days, the baby seems listless, so the mother brought her to the emergency room where she was found to be severely dehydrated and had to be resuscitated. The emergency room staff neglected to weigh the baby before giving her fluids, and as a result she was given excessive fluids. The combination of dehydration and rapid overhydration caused severe brain damage, resulting in cerebral palsy.
Medical Malpractice - Quadriplegia - Brain Surgery - Lack of Informed consent
Beatt v. Hoffman (Supreme Court, New York County, 1985)
An essential element of surgery is obtaining an informed consent from a patient. Here, Joseph J. Brophy obtained a $2 million medical malpractice jury verdict, representing a 62 year old retired man who underwent surgery for a benign acoustic tumor. The doctors had recommended brain surgery for the tumor in hopes of saving the patient's hearing, and told the patient of the risks of brain surgery. However, they did not tell the patient that there was a safer alternative that would sacrifice the hearing, but carried no risk of paralysis. Joe successfully argued that his client had brain surgery without an informed consent.
Medical Malpractice & Personal Injury - Quadriplegia - Brain Surgery - Stroke
Hutton v. Mayo Clinic (U.S.D.C., Minn. 1984)
Even revered medical institutions commit acts of negligence that bring on proper medical malpractice cases. Here, Joseph J. Brophy obtained $2.1 million medical malpractice jury verdict for a 44 year old school teacher who had travelled from New York to Minnesota to have brain surgery at the Mayo Clinic. During the surgery, she experienced an air embolism that caused a severe stroke, resulting in quadriplegia. The doctors argued that the air embolism could not have been foreseen or prevented, but there was evidence of a delayed reaction to the emergency because the surgeon attempted to finish his operation after the air embolism began, while the anesthesiologist was absent from the operating room at the time. The jury deliberated for three days before rendering the first substantial verdict against the Mayo Clinic in a medical malpractice case.