Appellate Court refuses to reinstate malpractice claims dismissed on a tehnicality
For several years, the Supreme Court applied a very stringent standard to Notices of Intent in medical malpractice claims, and dismissed them if they did not very thoroughly and completely explain to the physician or health provider precisely what the provider did wrong and how it caused injury. One typical example involved a patient who suffered injury from the doctor's failure to treat deep vein thrombosis: the case was dismissed because the patient did not adequately explain how failing to treat a clot causes a further thrombolytic event. In reaction to this extremely high pre-suit and pre-discovery threshold, last year the Supreme Court reversed its prior decisions and relaxed the standard applicable to a NOI: the layperson must use good faith and give adequate notice to the doctor of the basis of the claim, but cases won't be dismissed for hypertechnical excuses.
In response to this ruling, a number of injured malpractice victims sought to reinstate their claims, asking the court to reevaluate their Notices of Intent under this more reasonable standard. In Farley v. Carp, Shairer, et al, and several companion cases, the Court of Appeals refused to reconsider the earlier decisions on their respective merits. It held that the injured parties' failure to appeal their earlier defeats, or their earlier exhaustion of their appellate remedies, made them ineligible to have their cases heard on the merits. Judge Henry Saad, a consistent ally of the insurance industry, wrote the majority opinion. Judge Stephen Borrello, generally thought to be a more moderate and thoughtful jurist, filed a dissent and would have heard at least one of the appeals on its merits.