4 No. 28 SSM 6
Barbara W. Wisholek et al.,
Respondents,
v.
Gary Douglas, M.D.,
Defendant, The Health Care Plan, Inc.,
Appellant.
_________________________________________________________________
2002 NY Int. 33
March 21, 2002
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Ann W. Herman, for appellant.
Submitted by Bradley J. Stamm, for respondents.
Health Plan Association of New York, Inc., amicus curić.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of the Appellate Division should be reversed, without costs,
and the matter remitted to Supreme Court, with directions to dismiss
the action as against The Health Care Plan, Inc., solely upon the
ground that the issue as presented in this case is moot.
This appeal arises from a medical malpractice action commenced by
plaintiff and her husband against Dr. Gary Douglas and his employer,
The Health Care Plan, Inc. ("HCP") -- a qualified health maintenance
organization. HCP moved to dismiss plaintiffs' claims, arguing that
Public Health Law § 1) precludes suits sounding in medical
malpractice against health maintenance organizations. Supreme Court
denied the motion.
At trial, the jury returned a verdict that Douglas was negligent, his
negligence was a substantial factor in bringing about plaintiff's
injuries, and he was acting within the scope of his employment and in
the furtherance of the business of HCP. The jury also determined that
HCP was negligent but that its negligence was not a substantial factor
in bringing about plaintiff's injuries. Plaintiffs were awarded
damages totaling over $3 million dollars against both defendants.
The Appellate Division modified the judgment, on the law, by granting
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
Health Plan Association of New York, Inc., amicus curić.
The order of the Appellate Division should be reversed, without costs, and the matter
This appeal arises from a medical malpractice action commenced by plaintiff and her husband
HCP moved to dismiss plaintiffs' claims, arguing that Public Health Law § 1) precludes suits
Supreme Court denied the motion.
At trial, the jury returned a verdict that Douglas was negligent, his negligence was a
The Appellate Division modified the judgment, on the law, by granting a new trial on damages
However, this Court was subsequently advised by the parties that the amended judgment was
Plaintiffs now argue that, given the full satisfaction of judgment by Douglas, the issue
An "appeal will be considered moot unless the rights of the parties will be directly affected
Regardless of whether the rights of the litigants were properly determined by the Appellate
We have discretion to review a case if the controversy or issue involved is likely to be
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