Case Results
Gordon & Silber Obtains Summary Judgment for Hospital in Failure to Diagnose Cancer Case — March 2009.
Type of Case: Medical Malpractice — Failure to Diagnose Cancer.
Venue: Supreme Court, Rockland County.
Background Facts: Plaintiff was referred to our client hospital by her chiropractor for shoulder pain. The radiologist took an x-ray and failed to diagnose plaintiff's cancer. Plaintiff brought a lawsuit against the chiropractor and the chiropractor impleaded our client seeking contribution and common law indemnity. Plaintiff's subsequently settled the case, but defendants sought to pursue claims against our client for indemnity.
Our Strategy: Understanding that any common law claims against our client would be extinguished by the settlement of the underlying malpractice suit against the chiropractor, we defended the case on the merits and allowed the defendant to settle the action without any contribution from our client. When defendant would not withdraw the common law indemnity claim, we moved for summary judgment dismissing the cause of action for failure to state a claim.
Result: Rockland Supreme Court Justice Robert Berliner, granted our motion and dismissed the case against our insured. The court held that the settlement between plaintiff and the defendant chiropractor extinguished the third-party claims pursuant to GOL § 15-108(c). The Court agreed that defendant could not state a claim against the hospital for common law indemnification, because plaintiff had not alleged or proven that defendant's liability was vicarious in nature.
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