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You are here: Home1 / Battery2 / CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH...
Battery, Medical Malpractice, Negligence, Public Health Law

CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH STATES AN INTENTIONAL TORT SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT).

The Second Department determined several distinct issues (not all summarized here) that arose from a lawsuit alleging the defendant doctors and hospital performed a c-section birth against plaintiff’s wishes. The cause of action based upon defendants’ performing an unwanted procedure alleged an intentional tort and, based upon the one-year statute of limitations, was untimely. The Public Health Law cause of action was not appropriate because those statutes and regulations do not apply to hospitals (as opposed to residential health care facilities):

… [I]t is clear from the statutory scheme that Public Health Law § 2803-c was not intended to apply to hospitals.

Public Health Law § 2801-d authorizes a private right of action by patients of “residential health care facilities” for the violation of rights enumerated in Public Health Law § 2803-c. “Residential health care facility” is defined by the statute as “a nursing home or facility providing health-related service” (Public Health Law § 2801[3]). Since the hospital is not a “residential health care facility,” this provision is not applicable to the hospital … . The fact that the legislature did not specify that a private right of action was available against hospitals indicates that providing a private right of action to hospital patients was contrary to the legislative scheme. Therefore, no private right of action under the Public Health Law should be inferred … . Dray v Staten Is. Univ. Hosp., 2018 NY Slip Op 02314, Second Dept 4-4-18

NEGLIGENCE (MEDICAL MALPRACTICE, PUBLIC HEALTH LAW, CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH STATES AN INTENTIONAL TORT SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT))/MEDICAL MALPRACTICE (CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH STATES AN INTENTIONAL TORT SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT))/INTENTIONAL TORTS (MEDICAL MALPRACTICE, CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH STATES AN INTENTIONAL TORT SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT))/PUBLIC HEALTH LAW (MEDICAL MALPRACTICE, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT))/HOSPITALS (PUBLIC HEALTH LAW, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT))

April 4, 2018/by Bruce Freeman
Tags: Second Department
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https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2018-04-04 13:58:382021-06-18 13:06:15CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH STATES AN INTENTIONAL TORT SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT).
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PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED, DESK LEFT UNATTENDED ON A DOLLY BY DEFENDANT MOVER FELL OVER ONTO PLAINTIFF (SECOND DEPT).
QUESTION OF FACT WHETHER SMALL TABLE OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​
THE REFEREE’S REPORT, WHICH IS MERELY ADVISORY AND IS NOT BINDING ON THE COURT, SHOULD NOT HAVE BEEN ACCEPTED BY THE COURT BECAUSE IT WAS BASED UPON BUSINESS RECORDS THAT WERE NOT PROVIDED TO THE REFEREE (SECOND DEPT).
MOTHER’S MOTION TO VACATE THE NEGLECT FINDING SHOULD HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH PLAINTIFF WAS A MEMBER OF THE LIMITED LIABILITY COMPANY (LLC) WHEN HE STARTED THE LAWSUIT ASSERTING DERIVATIVE CAUSES OF ACTION, HE LOST STANDING TO CONTINUE WITH THE SUIT AFTER WITHDRAWING HIS MEMBERSHIP IN THE LLC (SECOND DEPT).
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