Category Archives: Attorney Articles

Winning the Battle Over Medical Record Copying Costs: The Federal HI-Tech Act

The federal Health Information Technology for Economic and Clinical Health Act (the HI-TECH Act) was passed in 2009 to promote the adoption of electronic medical records.  The Act encompasses many subjects, but some of its provisions can be used to substantially reduce the cost of obtaining electronic copies of medical records.  The Act applies to any medical provider who maintains electronic medical records, and requires a digital copy of the records be supplied at cost upon request.[i]  In practice, this results in a significant reduction in the cost of purchasing medical records.

Under the HI-TECH Act, an individual patient may request the digital record.  In addition, any other person who has authority to act for the patient “under applicable law” can make the request.[ii]  Although this language suggests the patient’s attorney should be able to send the request for electronic records as the patient’s “authorized representative,” that would be wrong.  The agency which enforces the HI-TECH Act, the federal Office of Civil Rights (OCR), has consistently taken the position that the Act will only apply if the request for medical records is in a writing signed by the individual and is authored by the individual; i.e. – the patient (or authorized estate representative).  The OCR takes the position that third-party requests for medical records (i.e. – attorney requests) are governed by state laws, which vary from state to state.[iii]  In New York, the state law is Public Health Law Section 18, which provides that the fees shall be cost-based but in no event in excess of $0.75 a page.

To invoke the Act, therefore, the medical record request must be in a writing signed by the patient.  The attorney can prepare the medical record request for the client’s signature.  The letter from the patient requesting the medical records can be forwarded to the health care provider from the attorney’s office, again, as long as the request is in a writing signed by the patient.  The regulations provide that the client (the individual) can require that the medical records be mailed to a third party designated by the patient (i.e. – the attorney’s office).[iv]  It is also important to note that a HIPAA authorization is not required as part of a HI-TECH Act request for electronic records.[v]

Upon receipt of a request for electronic records under the HI-TECH Act, the health care provider must act on the patient’s request no later than 30 days from receipt.[vi]  Recall, that under the New York’s Public Health Law Section 18, the time limit to produce the records is a “reasonable” time.  If the provider cannot comply within 30 days, it/he/she can extend the time by a one- time extension of an additional 30 days, but must provide a written explanation for the delay.[vii]  Although a medical provider may insist on payment of a copying fee, the records must be sent within the allotted time frame, regardless of whether payment has been made in full.[viii]

While there is no private right of action under the HI-TECH Act, the OCR can investigate complaints and levy fines for violations.   Generally speaking, no penalties will be imposed if the failure to comply is corrected within 30 days after the medical provider knew that the failure to comply occurred.  The Office of Civil Rights may provide “technical assistance” to the provider during this 30-day period to resolve the dispute without penalty.[ix]  Translated roughly, that means that the OCR can contact the provider and work out a resolution. If your client’s request for medical records is made consistent with the parameters discussed above, and you nonetheless receive a bill from the hospital or the copying company for $0.75 a page, your recourse is to make a complaint to the Office of Civil Rights.  The process is relatively painless and can be done online in a few minutes time at the OCR website.[x]  OCR normally will only accept complaints that are filed within 180 days of when you knew, or should have known, that the alleged violation of the statute occurred.

The HI-TECH Act, when invoked correctly, should significantly reduce the cost of obtaining your client’s medical records.  Remember, however, the key to triggering the statute is to have your client demand an electronic copy of the record in a writing signed by the client.

1 42 U.S.C. 17935(e)(1),(2); 45 C.F.R. 164.524
2 45 C.F.R. 164.502(g)(1),(2)&(4)
3 OCR Decision Letters, obtainable only through FOIL request
4 See http:\\www.hhs.gov\hipaa\for-professionals/privacy/guidance/access/index.html ;
45 CFR Sec. 164.524
5 CFR Section 164.524
6 45 C.F.R. 164.524(a)(2)(i-iv); 45 C.F.R. 165.524 (b)(2)(i)(A).
7 45 C.F.R. 164.524(b)(2)(ii)(A)&(B)
8 See OCR Decision, Reference Number 16-225898, dated February 4, 2016, obtainable only through FOIL request.
9 See OCR decision letters, obtainable only through FOIL request.
10 www.hhs.gov/hipaa/filing-a-complaint/complaint-process/index.html

RGLZ’s Newest Attorney: Mary Ann Risavich-Birgeles

IMG_3935RGLZ Personal Injury Law is happy to welcome our newest associate Mary Ann Risavich-Birgeles on board as of May 2016. She is the first new attorney on staff since Christopher Glass joined the team in 2012. Mary Ann studied American History and Political Science at University of Pennsylvania, before moving on to the William and Mary School of Law where she received her law degree with an additional recognition for public service.

Mary Ann has previously done work for the New York State Attorney General’s Office in the area of consumer fraud, as well as the Suffolk County Attorney’s Office. She is a member of the Womens’ Bar Association of New York, the American Association of Justice, the New York State Trial Lawyers’ Association, as well as both the Suffolk County and New York State Bar Associations.

Ms. Risavich-Birgeles will predominantly work on cases in the personal injury, nursing home abuse, and medical malpractice fields; adding even more strength to RGLZ’s already considerable talents in those practice areas.

The entire firm is excited to have her on board, and we can’t wait to see her take on the sort of serious cases that RGLZ is known for. We’re confident that she will flourish in her new role, and only reinforce RGLZ’s sterling reputation for excellence both inside and outside of the courtroom.

Are You Paying Too Much for Subpoenaed Medical Records?

Any lawyer who routinely purchases medical records as part of their practice is familiar with the ubiquitous $0.75 charge per page.  However, does Public Health Law Section 17 and 18’s provision, requiring medical records be furnished to patients at a maximum of $0.75 per page, apply in the context of subpoenaed medical records?  A reading of CPLR §8001 suggests the answer is no. Continue reading

A Guide to Pressure Sore Cases: Part Three

imgo-1

Typical interventions to prevent the development of a pressure sore for an at risk resident include routine turning and positioning to off load pressure points, maintaining adequate nutrition and hydration, employing pressure relief devices such as a pressure relief mattress or pads or heel protectors, and providing appropriate skin cleaning and skin care. Many of these interventions are provided by the certified nurse assistants, who work under the supervision of the facility nurses. The facility should maintain some form of a CNA accountability record which documents on each shift whether the interventions required by the Plan of Care are actually being performed. Pressure sore litigation is often waged in and around the CNA accountability record. Large gaps in documenting daily care, such as the turning and positioning of the immobile resident, provide plaintiffs’ experts with a ready explanation as to why the pressure sore developed or failed to heal. Conversely, a well -documented chart of daily interventions support the facility’s argument of “clinical unavoidability.”

Sometimes the nursing home chart has missing parts, or worse, material alterations between the chart obtained before the litigation and the chart produced during the litigation. On an alarming number of occasions we have discovered fabrications in the notes, including the addition of turning and positioning entries which were not recorded in the earlier version of the chart, and even the administration of medications to a resident a day after his death.

The most damning pieces of evidence in the pressure ulcer case are the photographs of the ulcers themselves. Graphic photographs of the deep sores exposing, for example, the vertebrae in the sacrum are a compelling adjunct to the resident’s family’s testimony concerning pain and suffering. In every pressure sore case the family should be instructed to take multiple photographs of the ulcer, or a professional photographer should be dispatched to the hospital or facility for that purpose. If the resident has died, funeral directors will often permit a photographer to document the sores while the body is being prepared. Unfortunately, autopsies are rarely performed on elderly residents who expire in the hospital or nursing home from presumed natural causes. The nursing home and hospital charts should be scoured for any evidence that the facility took photographs to document wound care progression, and careful note should be made of any differences in the description of the pressure sore between the nursing home and the subsequent treating hospital. Once a pressure ulcer is identified, it should be measured by location, size and depth. It is not unusual to discover that a pressure sore is described by the nursing home staff as a Stage III on the day the resident is transferred to the hospital for definitive care, and a few hours later described as a Stage IV by the hospital emergency room personnel.

As the preamble to the New York regulations reminds us, the infirmed elderly are among the most vulnerable in the population. A large percentage of that population is at risk for developing pressure sores. Unless clinically unavoidable, pressure sores should not occur in a skilled nursing facility. Litigation of bed sore cases is one method of promoting enforcement of existing standards of care and improving quality of care throughout the industry. The practitioner would be well advised to seriously consider obtaining the nursing home chart when the family complains that a loved one has developed serious bed sores in the nursing home.

A Guide to Pressure Sore Cases: Part Two

imgo

It is against this backdrop that the pressure sore case must be evaluated. Pressure sores are prevalent in nursing homes because elderly and infirmed residents are often immobile, bed bound or chair bound. A pressure sore develops because of pressure and/or friction over an area of skin, resulting in decreased blood flow to that area. Affected areas are typically the sacrum, coccyx, feet and heels. If the pressure is not relieved, the area develops into an open sore and death of tissue ensues. As the sore widens and deepens, layers of the skin can be eviscerated, exposing the bone below. Seventy percent of pressure sores occur in patients over the age of 70 and ninety-five percent of pressure sores develop on the lower body.

Pressure sores are graded or staged according to their severity. Stage I is intact skin with a nonblachable redness in a localized area, usually over a bony prominence. Stage II is a shallow open sore where the skin has been broken. Stage III is when the pressure sore has advance to the point that there is full thickness tissue loss so that the fat underlying the skin is exposed. Stage IV is when the sore is so deep that underlying bone, tendon or muscle is exposed. A pressure sore may also be “unstageable,” because the base of the ulcer is covered by slough or eschar making accurate staging of the depth difficult. Most pressure sore lawsuits involve Stage III or IV pressure sores. Pressure sores in the lower extremities can cause gangrene resulting in amputation. Open bed sores anywhere on the body can become the site of an infection and progress to sepsis, and ultimately cause the death of the patient.

Both federal and state regulations speak to the issue of pressure ulcers. Both provide that the resident has the right to be free of pressure sores which are medically preventable. Specifically, the regulations provide that the nursing home must ensure that the resident does not develop pressure sores unless they are “clinically unavoidable.” If the resident comes into the nursing home with an existing pressure sore, the facility is charged with the responsibility of providing the necessary services and treatments to promote healing, prevent infection and prevent new sores from developing.

The issue of “clinical unavoidability” is central to the prosecution and defense of the pressure sore claim. The focus is on whether the facility appropriately assessed the resident’s risk of developing a pressure sore and created a plan of care to address that risk. Often the nursing home chart demonstrates the risk was identified and a plan of care was developed. Then, the battleground shifts to the issue of whether the interventions and precautions ordered were actually implemented by the facility staff. The answers to these questions are revealed by a detailed analysis of the nursing home chart.

In addition to immobility, certain medical conditions can enhance the resident’s risk of developing pressure sores, and when they develop, make them more challenging to heal. Those conditions include urinary and fecal incontinence, peripheral vascular disease, malnutrition, diabetes, end stage renal disease, gastrointestinal disorders and malabsorption disorders, among others. Some medical conditions are believed to impede or prevent healing of pressure ulcers: metastatic cancer, cachexia, multiple organ failure, sarcopenia, severe vascular compromise and terminal illness. Resident’s rights advocates argue that the presence of risk factors put the facility on notice of the need for aggressive preventative measures. Nursing home defense counsel, on the other hand, argue that the presence of multiple risk factors make the development of the pressure sore clinically unavoidable.

A Guide to Pressure Sore Cases: Part One

agtpsc-part1-55346

Pressure ulcers are among the most common injuries suffered by nursing home residents. They can be painful and debilitating, and are horrifying to the resident’s family and to jurors alike. Practitioners should have a basic understanding of the law protecting nursing home residents who develop bed sores and be able to make a preliminary determination as to whether a bed sore case should be investigated further.

Nursing home residents are protected by a complex web of federal and state regulations which govern almost every aspect of nursing home care. On the federal level, in 1987, the U.S. Congress enacted a far reaching set of reforms to nursing home regulations to improve nursing home quality.The legislation expanded state and federal responsibilities for nursing home supervision and increased sanctions for noncompliance. The stated purpose of the reforms was to ensure that each nursing home resident receives care which enables the resident to “attain the highest practical physical, mental and psychosocial well-being.” The regulations, collected at 42 C.F.R. Part 483, set forth detailed standards for resident’s rights, the quality of resident’s care, proper maintenance of the facility and other facility practices.

States license nursing homes and also have the authority to enact their own set of nursing home regulations to complement federal oversight. The statutory authority of the New York State Commissioner of Health to regulate nursing homes is set forth in Public Health Law Section 2803. Public Health Law Section 2803-C(3)(e) expressly states that each nursing home patient has the right to adequate and appropriate medical care. Detailed New York State regulations governing the quality of care in nursing homes are set forth in 10 N.Y.C.R.R. Part 415. The New York regulations largely track their federal counterpart, although they are not identical. Both sets of regulations must be referenced in any nursing home neglect case.

New York also protects nursing home residents with a private statutory right of action under Public Health Law Section 2801-d. PHL 2801-d is perhaps the single most powerful tool in the practitioner’s arsenal. PHL 2801-d creates a private right of action for the nursing home resident who suffers any deprivation of a right or benefit conferred by statute, regulation or the nursing home contract. A prima facie PHL 2801-d case is made out when the resident proves the nursing home violated any one of the myriad state or federal regulations protecting residents and demonstrates that the violation caused the resident’s injury. Under the statute, the burden then shifts to the nursing home to prove that “the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury … to the patient.” A prima facie case for the resident under PHL 2801-d can be easier to prove than a traditional negligence claim (in which the plaintiff must establish the facility acted unreasonably), or a medical malpractice claim (in which the plaintiff must establish departures from accepted standards of care). Significantly, PHL 2801-d also provides for minimum statutory damages, punitive damages when willful or reckless disregard of the resident’s rights can be proved and, in the discretion of the court, attorney fees to the prevailing resident’s attorney.

Your Trusted Partner for Construction Cases

Construction accident cases are expensive, and sometimes quite difficult to prosecute. The amount of experts needed, as well as the time necessary to see things through makes for a fairly challenging proposition. RGLZ has the expertise and resources that you can count on to make sure any construction case is handled to the highest degree of sophistication and execution. Click here for more info.

A Guide to Openings and Summations: Part Seven

part7

Repackage the Evidence in a Way that is Useful for the Jury

More than 2000 years ago, Aristotle wrote about the importance of refreshing the memory of the audience frequently. Nowhere is that dictate more true than in summation. An old trial lawyer’s proverb is: “Tell the jury what you expect to prove in opening statement, prove it in your case in chief, and then tell the jury what you proved in summation.”  

There is no doubt the summation must contain a repetition of the strongest and most important points made on behalf of your client during the trial. Refreshing the memory of the jury in summation, however, must not be a boring repetition of what each witness said. If you bore the jury, they will stop listening and you will have lost the opportunity to persuade. Instead of merely repeating the evidence, repackage it in a way that the jury will find useful in their deliberations. Reacquaint the jury with the testimony in the context of the jury interrogatories the jurors will be called upon to answer, as well as core credibility questions. For example, in reviewing the testimony of plaintiff’s expert witness, Dr. Smith, a defendant attorney might say:

(1) “Let’s now look at how the testimony of Dr. Smith squares with his own medical records;” or

(2) “Let’s now consider how the testimony of Dr. Smith lets you answer the question of whether the plaintiff’s injuries are permanent.

Then, review the testimony of Dr. Smith. In short, repackage the testimony in a way the jury deems useful while still adhering to the age-old principle of repeating the important evidence. Repackage, do not simply rehash.

Rhetorical Techniques

1.  Use analogies and similes liberally in your opening and summation. They create word pictures and assist the jury in understanding your theme and remembering key facts.

2.  Use empowering words. Use present tense and action verbs. Lose the lawyer language.

3.  Employ the rhetorical technique known as the “Rule of Three” (“I came, I saw, I conquered”).

Discussing the Law in Summation

It is universally understood in New York State courts that it is improper for the lawyers to inform the jury what the applicable law is. It is not improper, however, to weave the language the judge will use in his charge into your summation. Mimicking the terminology in the jury charges, it is entirely appropriate to advise the jury that the defendant caused the crash because “he failed to see what was reasonably to be seen,” or that he failed to “look, or look carefully.”  In summation, speak the same language as the judge.

Non-Verbal Influences and Using Courtroom Space on Summation

One study suggested that 7% of communication is absorbed by verbal communication (words), 38% is absorbed by vocal impression (intonation and tone), and an incredible 55% of communication is absorbed by visual impression (body language and non-verbal communication). Use non-verbal communications to support your message. 

The jury is looking with their eyes as well as hearing with their ears. Use your body to complement your verbal message. Use gestures for emphasis. High energy in the speaker can infect the listener. Low energy means low juror interest. When speaking to the jury:

Don’t bury your hands in your pockets (too casual) or repetitively open and close them (too nervous). If you glue your elbows to your flank, you won’t be able to make expansive gestures with your hands and arms.  

Don’t stand tilted on one foot off balance or dance around the courtroom when you speak. Imagine the distraction of someone trying to speak to you in your living room while pacing back and forth.

Do permit your hands to drop naturally to your sides. Let your hands supplement your presentation, emphasizing and physically describing what you are saying. Gesture, if possible, with one hand at a time.  As one pair of communications experts wrote:

You look strongest and in greatest control when you plant your two feet shoulder width apart, weight equally balanced, square to the audience. That way, all of your energy manifests itself in gestures, facial expression, and upper body movements. Your message is reinforced and made clearer by your physical behavior. (Talk Your Way to the Top, Kevin and Laura Daley (McGraw – Hill 2004).

Focus your eyes on one person on the jury panel at a time until you complete a thought.  A thought is a short sentence; a place in your monologue where you would naturally pause.  Repeat the process continually until your presentation is over.

Develop a Passion for Your Client’s Cause

In your summation show that you care for your client, you care for your client’s cause and that you are a true believer in it. If you don’t, your body language, your non-verbal communication, will betray you. Passion, however, is not the same as histrionics. Persuade the jury with logic and evidence, not emotion.  Overt appeals to emotion rarely succeed on their own. Emotions should be used strategically, for emphasis and to motivate the jury.

A Guide to Openings and Summations: Part Six

part6

Prep from Day One

It is too late to think about summation as the last witness is leaving the stand and the judge is instructing the jurors to return the next day to hear summations and charge. Preparation for an organized summation should begin before the trial even starts; with a summation folder or summation tab in your trial notebook. Before you begin the trial you should have a general outline of what you expect to comment on in summation, and the order in which you intend to introduce the issues. To avoid a weak introduction or a weak conclusion, try preparing the introduction and concluding remarks of your summation well in advance. During the course of the trial you can add, modify and supplement what you would like to say in the body of the summation based on what happens in real time with the witnesses.

Start by Reintroducing Your Rules of the Road

Most attorneys begin the summation by thanking the jurors for the time they have spent on the case and the attention they have devoted to the witness’ testimony. Subsequently the jury must be reminded of the central theme of the case or the rule that was violated by the defendant, and how the witnesses have all agreed to what the rule is, and how the facts prove the rule was violated. Keep this as tight as possible. Hit the important notes, and don’t obfuscate them.

Frame Your Case Using the Interrogatories, But Keep it Simple

Next, as an organizing principle of the body of the summation, the attorney should use the jury interrogatories as landmarks for reference points. Tell the jurors that they will be asked very specific questions by the judge, and that the answers to the questions will be used by the judge to create the verdict and determine the outcome of the case. It is critical to go over each interrogatory the jurors will be asked, and to suggest how the interrogatory should be answered. Thus, in a non-bifurcated trial, the summation proceeds through each liability question, to the proximate cause question. Do not take for granted, for example, that the jurors understand the causation question, because causation can sometimes confuse jurors even in the simplest cases. Tell the jurors what evidence compels the answers which favor your client.

Strike at the Defense, but Pick Your Battles

Next, address and debunk the defenses raised by your adversary. All too often, both experienced and inexperienced plaintiff attorneys become so agitated at the defense summation that they spend the better part of their own summation chasing the missiles the defense attorney has fired off. They sometimes fail to fully return to the plaintiff’s themes and plaintiff’s proofs. Address the defense arguments, but do not permit the defendant to dictate the course of your summation. Stay within the mental framework of your own narrative, and don’t give defense the advantage of fighting on their turf.

Don’t be Shy about Your Damages

With the defenses dealt with, and the arguments for a plaintiff’s verdict on liability laid out, turn to the damages interrogatories and remind the jury of the special and general damages. These are the consequences of the defendant’s rule violation. Here, the plaintiff’s attorney asks for a specific damages amount for past and future pain and suffering, medical bills and lost wages. Rare is the case where a plaintiff attorney will not advise the jury what money damages he believes are appropriate. Jurors have no reference point for the value of an injury and are anxious to know how the attorneys value the case, even though they are inherently suspicious of both plaintiff and defendant attorney remarks on this subject.

Empower the Jury

Finally, the conclusion. It’s always a smart play to conclude by uplifting the jurors. Remind them how important their work is, and if you’re the type to try to introduce some levity into things, this would be the time to do it. After all, they’re probably feeling a bit beat up at this point.

Appeal to the noble aspirations of the jurors to do justice, to set things right, to bring closure for the parties, and to do something the jurors can be proud of. They need to understand that making an award is something they can feel proud of. However you go about it, you need to instill the idea that the jury has the power to do something big. Try to guide them to the emotional inspiration they need to step up and use that power. Once you feel like you’ve gotten them there, take a seat. Leave them with those feelings as the freshest thing in their minds.

Next week we’ll finish out this guide to openings and summations by taking a look at some specific techniques to try out during summations, as well as things to keep in the back of your mind as they go forth.

 

A Guide to Openings and Summations: Part Five

part5

The Law of Summations: Don’t Cross the Line

Summation represents your final opportunity to persuade the jury. By the time of summation, jury analysis proves that virtually all of the jurors have already formed opinions as to who should win and who should lose. The role of summation, therefore, is to sway those few jurors who still remain undecided, and to arm jurors already on your side with the ammunition to convince adverse jurors to change their opinion.

The Court permits attorneys wide latitude to “fairly comment” on the facts and evidence as borne out by the proof. Fair comment encompasses argument on every pertinent matter of fact before the jury. Indeed, the permissible boundaries of summation are best defined by what cannot be said.  

Thus, counsel may not:

•  Comment On Facts Which Have Not Been Placed In Evidence.

See Cattano v. Metropolitan St. Ry. Co., 173 N.Y. 565 (1903) (appeals to prejudice or passion or raising facts neither proved nor presumed have no place in the trial.)

Taggart v. Alexander’s Inc. 90 A.D.2d 542, 455 N.Y.S.2d 117(2d Dep’t 1982) (reversible error to permit defense counsel to refer to prior acts of the decedent in summation where there was no evidence introduced of such acts at trial).

•  Request Damages In Excess Of The Amount Demanded In The Pleadings.  

See Pop Cowboy, Inc. v. 175 West 73rd Street Reality Corp., 292 A.D.2d 300, 740 N.Y.S.2d 29 (1st Dep’t 2002), reducing a jury’s damage award where the award exceeded the amount specified in the ad damnum clause.

•  Make References To The Insurance Coverage Of A Party.  

See Young v. Tops Markets, Inc., 283 A.D.2d 923, 725 N.Y.S.2d 489 (4th Dep’t 2001) holding the lower Court properly sustained defendant’s objections to plaintiff counsel’s “veiled references to insurance” during summation)

Knapik v. Whitaker, 30 A.D.2d 915, 292 N.Y.S.2d 781 (3d Dep’t 1968)

Rendo v. Schermerhorn, 24 A.D.2d 773, 263 N.Y.S.2d 743 (3rd Dep’t 1965) holding defense counsel’s references to defendant’s lack of insurance cannot be condoned.

•  Allude to a Party’s Ability or Inability to Respond in Damages. 

See Vassura v. Taylor, 117 A.D.2d 798, 499 N.Y.S.2d 120 (2d Dep’t 1986) holding it was grossly improper for defense counsel to remark in summation that the defendants have limited means and could not afford to pay a large judgment

Carey v. AAA Con Transportation, Inc., 61 A.D. 2d 113, 401 N.Y.S.2d 1015 (3rd Dep’t 1978), granting a new trial where plaintiff’s counsel in summation commented on the defendant’s ability to pay

Nicholas v. Island Industrial Park of Patchogue, 46 A.D.2d 804 (2d Dep’t 1974). In Nicholas, plaintiff’s counsel stated in summation: “They’re the corporations, they’re the owner, they’re the defendant, they’ve got the money, they’ve got the assets behind them.”   Nicholas supra at p. 41. The court held that references to a defendant’s ability to pay damages were improper.  

•  Act As An Unsworn Witness By Asserting Personal Knowledge the Facts in Issue. 

See Valenzuala v. City of New York, 59 A.D.3d 40, 869 N.Y.S.2d 49 (1st Dep’t 2008) plaintiff’s counsel caused reversible error by continually voicing his opinion as to the facts of the case during summation, which conduct amounted to a subtle form of testimony which could not be cross examined

Boruch v. Morawiec, 51 A.D.3d 429, 857 N.Y.S.2d 103 (1st Dep’t 2008) (it is improper for defense counsel to call the Industrial Code a “stupid law,” but holding that the comment had been properly limited by a curative instruction)

Pilon v. Pilon, 278 A.D.2d 760, 718 N.Y.S.2d 449 (3d Dep’t 2000)

Reynolds v. Burghezi, 227 A.D.2d 941, 643 N.Y.S.2d 248 (4th Dep’t 1996)

Stangl v. Compass Transportation, 221 A.D.2d 909, 635 N.Y.S.2d 376 (4th Dep’t 1995)

Sanchez v. Manhattan and Bronx Surface Transit Operating Auth., 170 A.D.2d 402, 566 N.Y.S.2d 287 (1st Dep’t 1991)

Undignified, Discourteous, and Plainly Obnoxious Ways to Blow a Case

In addition to the foregoing, there is a general, but important, category of improper summation commentary which can be best characterized as undignified, discourteous and plainly obnoxious conduct of such a significant degree as to compel a retrial. See the examples below.

Caraballo v. City of New York, 86 A.D.2d 580, 446 N.Y.S.2d 318 (1st Dep’t 1982)

Among the other excesses contained in the plaintiff’s summation, was the following:  “They will say anything to beat this case because, ladies and gentlemen, there is a lot of money involved here.  They bring in a phony doctor for a price. . .”  Id. at p. 318.

Berkowitz v. Marriott Corporation, 163 A.D.2d 52 (1st Dep’t 1990)

In this case, a verdict of nearly $8 million was reversed because of plaintiff counsel’s remarks during summation, including calling experts hired guns, accusing the defense attorney of not even himself believing the positions his clients advanced, etc. This case is significant in that defense counsel did not object to the comments as they were being spoken; rather, he waited until the conclusion of summation. Notwithstanding, the court ordered a new trial. 

Maraviglia v. Lokshina, 92 A.D.3d 924, 939 N.Y.S.2d 534 (2d Dep’t 2012)

The Second Department ordered a new trial based on a defense attorney’s comments during trial that the plaintiff’s treating physician was the “go-to” doctor for people seeking disability benefits and that the doctor performed medicine “in a parking lot.” He also implied that another one of plaintiff’s doctors was involved in a scam and he made various other inflammatory comments not based on the evidence. 

Mercurio v. Dunlop, 77 A.D.2d 647, 430 N.Y.S.2d 140 (2d Dep’t 1980)

In Mercurio, the defense verdict was reversed because defendant argued plaintiff’s expert was a fraud and a phony, and plaintiff wanted to steal money from the defendant. Yet, in Chappotin v. City of New York, 90 A.D.3d 425, 933 N.Y.S.2d 856 (1st Dep’t 2011) lv. To app. Den. 19 N.Y.3d 808 (2012), the First Department affirmed a jury verdict despite defense attorney comments that the lawsuit was part of a pattern of the plaintiff trying to “scam his way into free money”, and that the plaintiff, who was on disability before the accident, “has played the system going on 15 years.” The Appellate Division affirmed the defense verdict on the grounds that plaintiff’s attorney had failed to object to 13 of the 15 objectionable comments and the trial Court gave curative instructions on the two comments plaintiff objected to.

The lesson in these cases is clear. Parties in summation may recap the evidence, comment on its relevance to the issues in the case and contrast the testimony. Counsel is given, “within the four corners of the evidence, the widest latitude by way of comment, denunciation or appeal in advocating his cause.”  Braun v. Ahmed, 127 A.D.2d 418, 421, 515 N.Y.S.2d 473 (2d Dep’t 1987); Kasman v. Flushing Hospital and Medical Center, 224 A.D.2d 590, 638 N.Y.S.2d 687 (1996). Ad hominem attacks, however, are not favored, although sometimes permitted, but may result in a reversal if they have no evidentiary basis.

In short, the law of summations is rather simple. Deliver your summation based on the evidence.