Barker Patterson Nichols, LLP

Ralph Morales Joins Equity Team At BPN   On June 1, 2024, Ralph Morales accepted the firm's offer to become an equity partner. Ralph has been a partner with BPN since April of 2017 and is widely regarded as one of the premier trial attorneys in our field. Fortunately for BPN, Ralph is not only a terrific attorney, he is an even better partner and friend. Ralph has successfully tried dozens of malpractice actions in some of the most challenging venues in the country. Prior to entering private practice in 2002, Ralph spent six years as a senior assistant district attorney for the Kings County District Attorney’s Office. During that time, Ralph was entrusted with trying the highest-profile, serious felony cases in Brooklyn. When Ralph is not excelling in the court room, he is volunteering to benefit his community. He serves on the Executive Board of the Farmingdale Police Activity League and is highly involved in coaching and supervising fun sports programs for local children. Mr. Morales is the Vice President of the Board of Education in the Farmingdale School District, where he has served as an elected Trustee since 2014. Ralph also authored a book about the life of his namesake, hero, and late uncle: Vincent Santaniello, a U.S. Marine that was killed in action during the Vietnam War in 1968 at the age of 19.   We are thrilled and very fortunate to have Ralph as part of the firm's leadership team.

The COVID-19 team moved prior to answering to dismiss claims brought by by the family on behalf of a former resident claiming that a Staten Island nursing home failed to prevent the exposure to and death from COVID-19. Brian Andrews and Dylan Braverman argued that this claim should never have been brought as it was subject to immunities granted as a result of the unprecedented wave of COVID-19 patients in New York in the Spring of 2020. Plaintiff opposed claiming that the immunity did not apply, and that the gross negligence exception to immunity applied. However, the court granted dismissal finding that the BPN COVID-19 team sufficiently established that this patient’s care was impacted by the desire to prevent exposure and to treat COVID-19 and that the claims alleged did not support a gross negligence allegation under New York law. As a result, the case was dismissed without need for any discovery.

Lori Shapiro Once Again Prevails on Enforcing Admission Agreement   Lori Shapiro has again zealously enforced the Admission Agreement entered into by the resident prior to admission to a large nursing home. The malpractice claim was brought in the Bronx, despite the agreements Choice of Venue Clause which designated Nassau County. Lori moved to change venue from the Bronx to the agreed upon Nassau County courthouse. Despite opposition by plaintiff, the Bronx County judge found the Admission Agreement enforceable and granted the motion to transfer venue.

Dylan Braverman and Brian Andrews Obtain Dismissal of Claims Against Major Research Hospital and Two Physicians Based on the Federal PREP Act Immunity   Plaintiff brought a malpractice claim against a major Manhattan Research Hospital as well as two physicians. The claims were that the COVID-19 vaccine was contraindicated due to preexisting conditions, and resulted in significant and life threatening complications. Dylan Braverman moved to dismiss based on the federal PREP Act which holds medical providers immune when claims arise from and relate to covered COVID-19 countermeasures. Brian Andrews appeared for oral argument, resulting in the dismissal of all claims.

Lori Shapiro, Megan Lawless and Dylan Braverman Prevail on Motion to Dismiss Based on the EDTPA COVID-19 Immunity   The COVID-19 team moved to dismiss the claims against a Long Island facility prior to the answer based on the EDTPA immunities. Plaintiff claimed wrongful death, malpractice and intentional misinformation based on claims that the patient was exposed to and died from COVID-19, and that the family was not properly informed of extent COVID-19 presence in the facility. In support of the motion, Lori Shapiro and Dylan Braverman included affirmations and evidence demonstrating the compliance with COVID-19 protocols as set forth by the CDC and NY DOH, as well as the impact on the patient. In opposition, plaintiff tacitly conceded that there was COVID-19 impact on the care but the intentional misrepresentations constituted an exception to the EDTPA. In Reply, Megan Lawless established that under New York law, the self-serving claims were insufficient to establish the exception. The court agreed and all claims were dismissed.

Josh Cohen and Dylan Braverman prevailed in obtaining dismissal of all claims brought against a busy Brooklyn Hospital based on the COVID-19 immunities. Plaintiff brought a malpractice action due allegedly developing pressure ulcers and sepsis during the hospitalization. While the patient was initially not being treated for COVID-19, plaintiff tested positive during the admission. The Kings County judge found that the evidence submitted in support of the hospital demonstrated the criteria triggering the EDTPA immunity and granted to summary judgment motion dismissing all claims. The court described the EDTPA as a blanket immunity, and stated that it is triggered whether the impact is positive, negative, or neutral – ‘it merely requires the treatment be impacted.

On May 22, 2024, Rani Kulkarni and John Barker secured a summary judgment win on behalf of a Queens County radiologist. Plaintiff alleged a failure to interpret breast imaging, claiming that her diagnosis of breast cancer was delayed as a result. The Court granted summary judgment, finding that contrary to plaintiff’s allegation, the radiologist did not assume a general duty of care to independently diagnose plaintiff’s condition. Moreover, plaintiff failed to raise triable issues of fact, particularly as to whether the radiologist misinterpreted the subject imaging. The Court noted that plaintiff’s expert on causation was speculative and factually unsupported, dismissing the claim against the defendant radiologist.

Congratulations to our partner, Gary Patterson, on securing his third defense verdict this year!   https://lnkd.in/eSErXNdH

On May 14, 2024, Rani Kulkarni and John Barker won a motion for summary judgment on behalf of a surgical oncologist in Nassau County. Plaintiff alleged violations of the New York State Home Rights Law by the defendant. The Court stated that the defense had established a prima facie entitlement to summary judgment and plaintiff failed to raise a triable issue of fact. As such, the Court dismissed the case against the oncologist.