Z.T. v Long Is. Coll. Hosp.
Annotate this CaseDecided on January 25, 2017
Supreme Court, Kings County
Z.T., an infant by her parents and natural guardians, A.T. and G.T, and A.T. and G.T., Individually, Plaintiffs,
against
Long Island College Hospital, John Doe, M.D., and Jane Doe, M.D., (being fictitious and unknown to plaintiffs, the person or parties intended being the health care professionals who rendered improper medical care and treatment to infant plaintiff and her obstetrical mother), Defendants.
13797/08
Attorney for plaintiff:
James B. Baydar, Esq.
Pegalis & Erickson, LLC
1 Hollow Lane, Suite 107
Lake Success, New York 11042
Attorneys for Defendants:
Wilson Elser Moskowitz Edelman & Dicker, LLP
150 East 42nd Street
New York, New York 10017
and
Saretsky Katz & Dranoff, LLP (Attorneys for The Long Island College Hospital Malpractice Trust)
475 Park Avenue South, 26th Floor
New York, NY 10016
Marsha L. Steinhardt, J.
The following papers numbered 1 to 2 read herein: Papers Numbered
Notice of Motion 1
LICH's Affirmation in Support 2
The plaintiff seeks to vacate the Decision and Order of the Honorable Justice Carolyn Demarest, dated July 12, 2016, claiming that in considering the Settlement and Release ("SAR") and the Infant Compromise Order ("ICO"), the Court overlooked or misapprehended the plan for valuing and paying Long Island College Hospital (LICH) claims as approved and adopted in the February 16, 2012 Order of Justice Demarest. Plaintiff also claims that the court overlooked or misapprehended the manner by which to calculate the initial fee to be paid to the attorneys representing a plaintiff in a LICH Claim. Lastly, plaintiff claims that as this LICH Claim is subject to Title 4 of Article 29-d of the New York Public Health Law (the Medical Indemnity Fund statute), any further distributions paid with respect to this LICH case must be allocated between damages to be paid as respects the past damages (non-Fund damages) and the damages attributable to the future (Fund damages). In effect, the plaintiff argues that the Order of July 12, 2016 overstates the initial plaintiff's attorney's fees and that the Order overlooked or misapprehended the Medical Indemnity Fund statute. Attorneys for the LICH Trust submit an affirmation in support of plaintiff's motion.
A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. CPLR 2221[d][2]. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided. Pryor v. Commonwealth Land Title Ins. Co., 17 AD3d 434 (2d Dept. 2005); Amato v. Lord & Taylor, Inc., 10 AD3d 374 (2d Dept. 2004); Frisenda v. X Large Enter., 280 AD2d 514 (2d Dept. 2001); F and G Heating Co. v Board of Education of the City of New York, 103 AD2d 791 (2d Dept. 1984); Fosdick v. Town of Hempstead, 126 NY 651. Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application. It may not be employed as a device for the unsuccessful party to assume a different position inconsistent with that taken on the original. McGill v. Goldman, 261 AD2d 593, 594, (2d Dept. 1999); Anthony J. Carter, DDS, P.C. v. Carter, 916 N.Y.S.2d 821, 821 (2d Dept. 2011).
The Court notes that Judge Demarest retired in the summer of 2016 and her cases were transferred to the undersigned. Upon review of the papers submitted by the parties, the Court grants reargument of the motion made on behalf of the plaintiff and, after reconsideration, vacates the Decision and Order of Justice Demarest dated July 12, 2016 and substitutes the following in its stead.
This case is a LICH claim as defined in the Implementation Order dated February 16, 2012 and is subject to the Implementation Plan (the Plan) which subjects all LICH Claims to a schedule for valuing and paying the LICH Claims. The Plan provides that a percentage of the "Established Claim Value" is paid as the "Initial Distribution." The Established Claim Value is the value of a Claim as established by the pre-mediation settlement, or mediation, or binding arbitration, and is the value upon which the payment percentage will be applied. The Plan provides the following percentages for payment of LICH claims: 100% for LICH Claims against LICH voluntary attending physicians (VAPs) regardless of when claims were asserted, 60 % for non-VAP LICH claims asserted on or before May 29, 2011 (the date of the closing at which substantially all of LICH's assets were transferred), and 40% for non VAP LICH claims asserted after May 29, 2011. The Implementation Plan was amended on August 4, 2016, increasing by [*2]10% the amount to be paid on claims against LICH. In this case, the LICH Claim Payment Percentage applied to the ECV is seventy percent (70%).
This action sounds in medical malpractice for pain and suffering and past and future damages as a result of neurological injuries sustained during and immediately following the birth of the infant plaintiff at Long Island College Hospital (LICH) and for damages sustained individually by the parents and natural guardians of the infant. This case settled after April 1, 2011, the effective date of Title 4 of Article 29-d of the New York Public Health Law, also known as the Medical Indemnity Fund statute (MIF). Upon review of the facts and circumstances of this action, the Court concludes that the infant in this case sustained a birth related neurological injury as defined under §2999(h) of the MIF statute and, as such, is eligible for admission to the Medical Indemnity Fund (the FUND).
Pursuant to the LICH Implementation Plan, the parties in this action have agreed to settle the claims upon the terms set forth in the Settlement Agreement and Release (SAR), including the agreed upon Established Claim Value of $5,000,000.00 (the ECV). As this settlement is exclusively with LICH, the applicable LICH Claim Payment Percentage of 70% is applied to the ECV and results in an Initial Distribution of Three Million Five Hundred Thousand dollars ($3,500,000.00).
The Court approves the settlement with regard the infant's claims and as regards the parent's claims. The Court also approves the parties' agreement that 60% of the settlement shall be attributable to future costs (Fund Damages) and that 40% of the of the settlement shall be attributable to past damages (non-Fund damages). The infant's non-Fund damages and damages attributable to the parent's claim are paid by the LICH Trust pursuant to the Plan.
In order to calculate attorneys' fees, the Medical Malpractice Sliding Scale formula, as set forth in 474-a of the New York Judiciary Law, must be applied to the Initial Distribution. As in all cases where the sliding scale is applicable, costs and disbursement are subtracted from the amount of settlement. As this is a LICH Claim, costs and disbursements are deducted from the amount of the Initial Distribution. The sliding scale is then applied to the net after disbursements, in order to arrive at the total attorneys' fee. Here, total attorney's fees amount to $496,243.72. Pursuant to the SAR in this case, a sum of $50,000.00 is allocated to the parents of the infant. This is equivalent to 1.4% of the Initial Distribution. The parents, therefor, are responsible to pay that portion (1.4%) of the attorneys' fees and of the costs and disbursements. Therefore, the parents are responsible to pay $6,947.41 for attorneys' fees and $525.88 for costs and disbursements from their share of the settlement.
The infant is responsible to cover attorneys' fees attributable only to the non-Fund portion. As previously mentioned, this value was stipulated to be 40%. Since the parents are paying attorneys' fees on their claims, the infant's share of non-Fund attorney's fees amounts to 40% of the remainder (after the parent's share of attorney's fees is deducted). Therefore, after subtracting the parents share of attorney's fees, an amount of $489,296.31 is the total attorneys' fees attributable to the infant's claims for both past and future damages. Thus, calculating 40% of that number results in $195,718.52 as the infant's responsibility for non-Fund attorneys' fees. Defendants are responsible for attorneys' fees for future damages (Fund damages). Here, as Fund damages are 60%, the portion of attorneys' fees to be paid by defendants amount to $293,577.79. Since the infant is responsible for costs and disbursements for both non-Fund and Fund claims, the parent's share of costs and disbursements is deducted from total costs so to arrive at the infant's share. In this case, the infant's responsibility for costs and disbursements is $37,036.96.
To determine the amount that will be distributed to the infant, a number of deductions must take place. Since $50,000.00 is attributed to the parent's claim, that sum must be deducted from the amount of the Initial Distribution which, in this case, leaves $3,450,000.00. As damages are apportioned between Fund and non-Fund as per the agreed percentages (60% and 40% respectively), the non-Fund portion amounts to $1,380,000.00. From this figure, the infant's portion of attorneys' fees and costs and disbursements are deducted, as well as, any amounts to be paid for liens. Thus the infant in this case is entitled to receive $1,128,103.36.
Lastly, the plaintiff argues that the prior order misapprehended the MIF statue because the Order indicates that any Further Distributions need not be allocated between non-Fund and Fund damages. The MIF requires all damages on behalf of a qualified plaintiff to be allocated between non-Fund and Fund damages. Accordingly, it is directed herein that if there is a further increase in the applicable LICH Claim payment percentage, the 40/60 ratio of non-Fund/ Fund allocation will be applied, the Trust will be responsible for paying the non-Fund portion, as well as, the attorneys' fees on the Fund portion.
An Amended Infant Compromise Order will be signed in due course.
This constitutes the opinion, decision and order of this court.
ENTER FORTHWITH,
Dated: January 25, 2017
HON. MARSHA L. STEINHARDT
J.S.C.
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