A medical malpractice case is almost always a tragedy. Someone has been unnecessarily hurt, someone has unnecessarily died. How can it get worse?
Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C. 2018 NY Slip Op 31610(U)
July 10, 2018 Supreme Court, Kings County Docket Number: 519958/2016 Judge: Marsha L. Steinhardt is one example of how the situation can get even worse. A hurt mother, a dead infant and then a question of the results of an autopsy.
“On or about April 13, 2012, the law firm of Sullivan, Papain, Block, McGrath and Cannavo, P .C
(“SPBMC”) was retained by the Marinelli’s to prosecute said claims against the midwife and doctors involved in the delivery of Valentino Nicola. The New York Methodist Hospital was named as an additional defendant to the lawsuit. The action ran the usual course and, ultimately, appeared before the undersigned in the Medical Malpractice Trial Readiness Part. Conferences between the attorneys for plaintiffs and (medical) defendants occurred and the matter was resolved in the total amount of one million, two hundred thousand dollars ($1,200,000.00); one hundred thousand dollars ($100,000.00) thereof being allocated to the wrongful death of the infant. The New York Methodist Hospital did not participate in the settlement. Said matter has been deemed “disposed” by the Court.
On February 17, 2015 an action on behalf of Lily and Vito Marinelli, in their capacity as co-administrators of the Estate of Valentino Nicola Marinelli, and individually, against The New York Methodist Hospital, sounding in loss of sepulcher, was filed by the above-named defendants in the Office of the Kings County Clerk. ”
“The gravamen of plaintiffs’ complaint is that by failing to pursue the return of deceased infant’s organs for burial, defendant breached a duty to plaintiffs that “constituted a deviation from proper representation,” i.e. legal malpractice. In particular, plaintiffs’ Fourth Cause of Action seeks monetary damages for breach of contract, alleging that said contract was created at some point prior to plaintiffs’ retention of defendant Jaw firm (April 2012) to pursue their medical malpractice (personal injury/wrongful death) action. That at all times relevant ” … [T]he return of decedent’s organs for burial was of significantly greater importance to the plaintiffs than recovering monetary damages for the personal injuries and wrongful death.” That defendant agreed, in February 2012, to try to effectuate the return of the organs. And that by “doing nothing” until such time as the organs were disposed of by Methodist Hospital, renders it liable for breach of contract. That the consideration given by the Marinelli’s was the retention, by them, of the defendant to pursue their claims. ”
“Assuming, for the purpose of this discussion, that it was the intention of Mr. and Mrs. Marinelli to create a contract with defendant law firm, requiring it to pursue the return of decedent’s organs, it is this Court’s opinion that they did not fulfill their “portion of the deal” for at least two months. Based on the identical affidavits submitted by them in opposition to defendant’s motion, it is undisputed that they did not sign a retainer agreement until April. Thus, there was· no quid pro quo between the parties until, at minimum, the date the retainer agreement was signed. Plaintiffs’ allege that had defendant sought return of the organs in February or March of2012 “the organs could have been recovered and could have received a proper religious burial.” It is this Court’s opinion that no legal relationship existed between the parties in February or March of 2012 and that defendant considered plaintiffs at that time to be, at most, potential clients to whom no actual duty was owed. At that point, no enforceable contract (written or oral) existed. “