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Melissa Rivers Sues N.Y. Clinic Over Joan Rivers' Death

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By Mark Wilson, Esq. on January 27, 2015 10:36 AM

Months after Joan Rivers' tragic death following a medical procedure, her daughter Melissa has filed a lawsuit against Yorkville Endoscopy Center, the New York clinic where Joan was having a routine procedure performed to remove a growth on her vocal cords.

During the procedure, Joan Rivers stopped breathing for a few minutes, which is long enough to permanently damage the brain. She died about a week later, after Melissa made the decision to take her off life support.

A Suit Against the Clinic -- Plus a Twist

What's going on here that hasn't been alleged before? After Joan's death, New York state health investigators documented several "deficiencies" in the procedure, but came short of alleging negligence or malpractice.

This new lawsuit names Yorkville Endoscopy Center and Joan's personal physician Gwen Korovin as defendants. It alleges medical malpractice, as evidenced by the doctor snapping a "selfie" with her while she was unconscious, failing to perform a tracheotomy when it became clear she wasn't breathing, and performing a biopsy on her vocal cords.

The biopsy probably caused her airway to close in the first place, and shouldn't have been performed in an outpatient clinic, a source told the New York Post in September. The lawsuit also alleges that Korovin herself was present and even performed two procedures, even though she wasn't authorized to work at the clinic. After the second procedure went terribly wrong, the suit says Korovin left the operating room.

Medical Malpractice

Medical malpractice is really just a specialized kind of negligence that comes out of an allegedly botched medical procedure or a failure to correctly diagnose a disease. Proving negligence requires proving four elements: duty, breach, causation, and damages.

Like ordinary negligence, the med-mal plaintiff has to prove that the doctor failed to act the way a reasonable doctor would, and that the doctor's actions caused the plaintiff's (or, in this case, the deceased's) injuries. Med-mal trials often get hung up on the "breach" element, as each side presents expert witnesses who testify as to how a reasonable doctor would behave and whether the defendant doctor failed to act that way.

Melissa's lawsuit doesn't contain a demand for a specific damage amount, but that's because it can't. Like many other states, civil lawsuits in New York require the plaintiff to state the amount of damages he or she requests, unless the lawsuit is for personal injury or wrongful death. In that case, New York Civil Practice Law Section 3017 requires the plaintiff's complaint to "contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled."

These types of laws are designed to allow a jury to independently consider how much it will award in damages, without being prejudiced by the plaintiff's valuation of the case.

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