Legal Alerts

Fraudulent Concealment of Prior Medical Treatment Proves Costly

New York, N.Y. (May 28, 2019) - Recently, New York Partner David L. Rosenthal secured the dismissal of spinal fusion case that came with a $3 million settlement demand, based upon the plaintiff’s failure to disclose prior treatment.

The plaintiff filed suit in New York Supreme Court, alleging he fell 18 feet from an attic, sustained a lumbar compression fracture, underwent lumbar fusion surgery and shoulder surgery, and was claiming in excess of $150,000 lost earnings. Liability was unfavorable as the plaintiff was likely to win summary judgment based on an alleged violation of NY Labor Law sec. 240 pertaining to height-related risks. However, prior to the close of discovery, we filed a motion to dismiss based upon the plaintiff’s “fraud on the Court” for failing to disclose his prior treatment and lying about it at his deposition and in the course of discovery.

In a 2014 decision, New York’s highest court affirmed that a plaintiff’s case can be dismissed if a plaintiff commits fraud on the court, which is defined as “willful conduct that is deceitful and obstructionist, which injects misrepresentations and false information into the judicial process so serious that it undermines . . . the integrity of the proceeding.” In order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending party has acted knowingly in an attempt to hinder the fact-finder’s fair adjudication of the case and his adversary’s defense of the action. A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence, perjury, and falsification of documents concerning issues that are central to the truth-finding process. If the court finds that fraud on the court has occurred, the proceedings may be terminated in the non-offending party’s favor. The reasoning for this result would be that when a party intentionally lies to the court and his adversary about issues central to the truth-finding process, he forfeits the right to have the claim decided on the merits. CDR Creances S.A.S. v. Cohen, 23 N.Y.3d 307 (2014).

We also argued in our motion that a dismissal of the plaintiff’s case was warranted because the plaintiff’s failure to provide adequate discovery pertaining to the prior treatment was “willful, contumacious or in bad faith,” and striking a pleading is appropriate where party supplies false or fraudulent information. See Garnett v. Hudson Rent A Car, 258 A.D.2d 559, 464 (2nd Dept. 1999); see also Corex-SPA v. Janel Group of N.Y., Inc., 156 A.D.3d 599, (2nd Dept. 2017).

The judge ruled that we demonstrated that the plaintiff deliberately concealed prior injuries to his neck and back by providing false statements and obstructing discovery in order to hinder the defense that the plaintiff’s fusion surgery was unrelated to the subject accident, and that even if the plaintiff was ordered to provide all records of his prior treatment for back and neck pain, it would be impossible to know whether the plaintiff has provided full disclosure of the records as a result of the plaintiff’s previous actions, thereby prejudicing the movants’ defenses.

Further, the court found that in opposition, the plaintiff failed to rebut the finding that the plaintiff’s pattern of dishonest and obstructive behavior had prejudiced the defendants. The plaintiff reported he had no prior treatment for his injuries to his back or neck in his workers’ compensation questionnaires, at his independent medical examinations and at his deposition, when in fact, he had received extensive medical treatment in those areas. Additionally, the plaintiff refused to provide authorizations demonstrating such prior treatment until confronted with our knowledge of it. It was ruled that in light of the foregoing evidence, the plaintiff had forfeited the right to have his claim decided on the merits.

The plaintiff’s attorney was clearly stunned by the decision and we are hopeful this result will cause plaintiffs in New York to think twice about concealing and/or lying about their prior treatments.


David L. Rosenthal, Partner

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