Robert G. Vizza


St. John’s University School of Law, J.D.
Dartmouth College, A.B.

New York State Bar
U.S.D.C. Southern and Eastern Districts of New York
U.S. Court of Appeals, Second Circuit
Partner, Chair of Appellate Litigation

Robert G. Vizza heads the firm’s Appellate Practice area, dealing with far-reaching legal issues ranging from professional malpractice litigation to premises, construction and workplace liability and civil rights cases.

Mr. Vizza assists clients with financial audits, litigation cost schedules and verdict exposure estimates, privileged quality assurance investigations and Dept. of Health inquiries including matters before the Office of Professional Medical Conduct, prospective risk management and quality of care issues, and regulatory compliance issues such as HITECH.

While at Dartmouth College, Mr. Vizza was the President of the Nathan Smith Society for Pre-Health Professionals. Mr. Vizza later served as the Editor in Chief of Res Gestae while at St. John’s University School of Law.

Mr. Vizza actively counsels the firm’s institutional clients on how to update policies and procedures in keeping with evolving case law. Most recently, Mr. Vizza gave a series of talks on the Court of Appeals decision which defined, for the first time, a duty on the part of physicians to warn patients not to drive after receiving narcotic pain medication. Having argued that case in the State’s highest court, Mr. Vizza was successful in limiting the proposed potential liability to just this limited circumstance, and in convincing the court not to impose any duty on the hospital’s part to prevent the patient from driving. The case will also stand as precedent for the types of cases that fall under the procedural and substantive protections afforded to doctors and hospitals facing medical malpractice claims as opposed to actions for ordinary negligence.

Nassau County Bar Association, Hospital and Health Law and Appellate Practice Committees
New York State Academy of Trial Lawyers
Brooklyn Women’s Bar Association
Association for Healthcare Risk Management of New York

Practical Applications of the Frye Hearing in Medical Malpractice Actions, Ch 14, Robert Devine, Medical Malpractice in New York [4th ed 2017]

“What To Do When a Litigant Requests an Interview,” Academic Monthly Issue no. 6, April 2017.

Representative decisions include the following:

Xie v New York City Heath and Hosps. Corp.:

The Appellate Division affirmed an order granting summary judgment where plaintiff amended their bill of particulars in response to our summary judgment motion. On the bill of particulars issue, this case moves the needle a bit in terms of making good law for defendants in personal injury cases. The bright line, after which further amendment of the bill of particulars requires a court order, used to be the filing of a note of issue. In this case, plaintiff had not yet filed the note of issue when the summary judgment motion practice ensued. We argued that because plaintiff agreed discovery was complete, the same limitation should apply. The court tacitly agreed with our position and refused to consider the amended bill of particulars served for the first time in response to a summary judgment motion.

Minogue v Malhan:

The Appellate Division reversed the trial court and allowed the defendant nursing home to enforce the mandatory arbitration clause in the admission agreement, agreeing with our position that federal law preempts state law provisions that attempt to prohibit the use of arbitration clauses in that setting.

Davis v. South Nassau Communities Hospital:

Mr. Vizza has been counseling hospitals on how to update their policies and procedures to respond to this recent holding by the Court of Appeals which defined, for the first time, a duty on the part of physicians to warn patients not to drive after receiving narcotic pain medication. Having argued that case in the State’s highest court, Mr. Vizza was successful in limiting the proposed potential liability to just this limited circumstance, and in convincing the court not to impose any duty on the hospital’s part to prevent the patient from driving. The case will also stand as precedent for the types of cases that fall under the procedural and substantive protections afforded to doctors and hospitals facing medical malpractice claims as opposed to actions for ordinary negligence.

Kim v New York Presbyterian:

Plaintiff sued the hospital alleging that a nurse failed to properly supervise her in the bathroom while she was recovering from surgery in the post-anesthesia care unit. Mr. Vizza convinced the First Department to dismiss the case, and in doing so tacitly overruled a decision from 1986 in which the same court ruled the other way on the same set of facts. Now, the First Department held that the claim is subject to the shorter statute of limitations for medical malpractice actions, and the case cannot be brought later as an “ordinary negligence” claim. The case should serve as precedent to entitle hospitals and other health care providers to a host of favorable procedural and substantive rules governing medical malpractice cases.

Gaynor v. Mount Sinai Beth Israel Med. Ctr. et. al.:

In a case of first impression, the court held that the estate of a New York State Corrections Officer waived the privacy provisions of Civil Rights Law §50-a by bringing a claim alleging future lost earnings. The ruling allowed the defendants to proceed with discovery of the decedent’s employment records.

Forziano v. Independent Group Home Living Program, Inc.:

A developmentally disabled man and woman sued in federal court alleging that the various private and public agencies violated their civil rights under the Constitution, the Americans with Disabilities Act, and the Fair Housing Act by refusing to provide them with a new housing arrangement so as to permit them to cohabitate as a married couple. On appeal to the United States Court of Appeals for the Second Circuit affirmed the dismissal of the complaint, holding that the defendants could not have discriminated against plaintiffs on the basis of their disability because that disability is an eligibility requirement for participation in those services in the first place.

Novick v. South Nassau Communities Hospital:

The Appellate Division, Second Department held that plaintiffs cannot sue hospitals under § 2801-d of the Public Health Law, clarifying that such a remedy can only be sought against nursing homes and not acute care hospitals. The court also agreed that the defendant hospital established that the medical care was at all times within accepted standards of medical care and that the decedent’s decubitus ulcers occurred in the absence of negligence.

Leace v Kohlroser:

The Appellate Division, Second Department, affirmed the order in favor of Bartlett LLP’s clients, dismissing plaintiff’s complaint on the grounds of the statute of limitations. Plaintiff was instructed by her gastroenterologist to swallow an endoscopic capsule camera in January, 2008. Bartlett LLP’s client, a radiologist, reported a CT study in January, 2009, as showing a metallic object lodged in plaintiff’s intestines. She did not, however, bring a lawsuit until August, 2011, after the expiration of the statute of limitations. The court agreed with Mr. Vizza’s position that the endoscopy camera did not trigger the “foreign object” discovery rule, and did not toll the running of the limitation of actions time period, because it was not something inadvertently left behind during surgery but was instead something that the plaintiff knowingly and intentionally swallowed. Also the court agreed with the defendant’s argument that an alleged misdiagnosis, here the claim of failure to identify the metallic object on the CT study, is not entitled to the foreign object toll because Mr. Vizza’s client had nothing to do with the placement of the device in the first place.

Goonewardena v. Long Island Jewish Health System:

On appeal the United States Court of Appeals for the Second Circuit examined the alleged civil rights violations, and held that plaintiff did not allege any facts that would support a claim that the hospital’s decision to involuntarily confine him for psychiatric treatment was in any way motivated by discrimination. The court agreed that it was the patient’s failure to abide by hospital policy that made him ineligible for further treatment, and dismissed the Americans with Disabilities Act and Rehabilitation Act claims.

Mitgang v. PJ Venture HG LLC:

On appeal the court affirmed the trial court’s dismissal of plaintiff’s personal injury claims holding summary judgment was warranted when the plaintiff admitted she did not know what caused her to trip or fall. The court rejected the theories of the plaintiff’s expert engineer, holding it would be sheer speculation to find that any supposed code violations were the cause of the accident.

Castillo v Mt. Sinai Hosp.:

In a complicated medical malpractice action, the Appellate Division, First Department agreed with Mr. Vizza’s position that it was not enough for plaintiff’s expert to put forth an opinion that Eculizumab showed “promise” as a treatment for atypical hemolytic uremic syndrome (aHUS). Since the drug was not yet approved by the FDA for that purpose at the time of the plaintiff’s treatment, it was not part of the state of the art or the standard of care.

Cummo v. Children’s Hospital of New York:

The Appellate Division, First Department rejected plaintiff’s attempt to rely on the doctrine of res ipsa loquitur and dismissed claims of negligence arising from a fungal infection acquired while the patient was in the hospital.

Bucsko v. Gordon:

In another case involving plaintiff’s attempt to rely on the doctrine of res ipsa loquitur, the Appellate Division upheld dismissal of the case, adopting Mr. Vizza’s argument that different groups of health care providers treated the patient at different times and places and thus could not have been in exclusive control of the surgical packing that was retained in the patient’s wound.

Michel v. Long Island Jewish Medical Center:

The Appellate Division affirmed the dismissal of plaintiff’s complaint, holding that the plaintiff could not raise a new theory of liability for the first time in opposition to a pretrial summary judgment motion, and in any event the defense established that plaintiff’s claims had no merit.

Williams v. Bayley Seton Hospital:

The hospital and its employees were not liable for injuries sustained by patient in its psychiatric unit when she was assaulted by another patient, where there was no evidence that alleged assailant’s conduct was foreseeable to them. On appeal Mr. Vizza successfully argued that psychiatric patients are entitled to an appropriate degree of privacy and autonomy because constant video surveillance is not the standard of care and in fact could impede the therapeutic environment.

Schiller v. St. Francis Hospital:

The Appellate Division, on appeal, agreed that the alleged sidewalk defect was trivial and affirmed the dismissal of plaintiff’s complaint.

Town of Babylon v. Carson:

Following arbitration of a grievance concerning employee misconduct, the Supreme Court refused to disturb the arbitrator’s award of back pay. On appeal to the Appellate Division, Second Department, the court held that even though judicial review of an arbitration award is very limited, in this case the arbitrator lacked authority to reduce the penalty. The court found in favor of Mr. Vizza’s client, the municipal employer rejected the arguments by the union and the employee that the arbitrator had somehow been given powers beyond the terms of the collective bargaining agreement.

Phifer v. City of New York:

Parents sued for violation of their Constitutional rights after a hospital refused to release the child to the mother’s custody. Plaintiffs claimed that a hospital’s report of child neglect was somehow motivated by a cover-up of malpractice alleged on the part of Mr. Vizza’s client, a pediatrician. The United States Court of Appeals for the Second Circuit agreed that under the Rooker-Feldman doctrine, a prior custody order for removal by the New York State Family Court barred a subsequent lawsuit in U.S.D.C.. On remand the lower court dismissed all of the remaining claims agreeing that the mandated reporters were protected by qualified immunity.

Stone v. Toporovsky:

Mr. Vizza successfully defended a pediatrician against claims of civil rights violations stemming from a telephone call reporting suspected child neglect to the State Central Registry.

Evans v. Ginsberg:

Mr. Vizza successfully argued on appeal that the continuous treatment doctrine did not apply to toll the statute of limitations applicable to medical malpractice actions, even though the physician continued to examine the patient and prescribed medications at regular intervals for several years after the surgery. The court agreed that the injury to the eye resulting from surgery was not the same condition for which the patient originally sought treatment from the defendant, and that palliation was not treatment for purposes of the tolling statute.

Chambliss v. University Group Medical Associates:

The Appellate Division, Second Department granted Mr. Vizza’s motion to dismiss the bulk of plaintiff’s appeal on technical grounds based on the adversary’s abandonment of a prior appeal, and after oral argument adopted Mr. Vizza’s arguments concerning the showing of merit that is necessary for a plaintiff to seek to enter a default judgment.

Elkrichi v. Flushing Hosp. Med. Ctr.:

On the eve of trial, the lower court permitted plaintiff to introduce a new theory that the defendants not only delayed in diagnosis of vascular blockage, but were also negligent in treating the condition once it was diagnosed. The Appellate Division vacated the new bills of particulars since they were served after the conclusion of discovery, setting the stage for successful summary judgment motions defeating the original allegations and dismissing the case as to Mr. Vizza’s clients.

Bartkus v. New York Methodist Hosp.:

The plaintiff initially claimed to have contracted hepatitis from a blood transfusion. Only after a summary judgment motion was made by defendants did her attorneys come up with a new alternative theory of having contracted the virus from improper disinfection of endoscopy equipment. The lower court allowed the new theories so that the case would have gone to trial, but on appeal Mr. Vizza successfully argued that the new theory was too late, and summary judgment was granted dismissing the case.

Barabash v. Farmingdale Union Free School Dist.:

Having been found liable as a landowner under Labor Law §240(1), the School District was still unable to obtain summary judgment in their indemnity claim against Mr. Vizza’s client, a subcontractor whose employee was injured at the worksite. Plaintiff went on to recover from the hoist manufacturer and equipment rental company, but not from the subcontractor.

Nassau County Dept. Social Servs. ex rel Dante M. v. Denise J.:

The Court of Appeals sustained a finding of neglect in order to protect infants who suffered in utero exposure to cocaine and heroin, because Child Protective Services gathered and presented additional evidence on a list of factors. In working up these positive toxicology cases, the Case Workers followed a protocol written by Mr. Vizza during his time serving as counsel to the Department of Social Services in Nassau County. His advice to the Commissioner predicted that the courts would be reluctant to decide neglect and abuse cases solely on the politically charged issue of a mother’s actions while pregnant, and provided the roadmap by which the Family Court neglect petitions would be successfully prosecuted by the County on behalf of such children.

Shashi v. South Nassau Communities Hosp.:

Plaintiff sued for an alleged delay in diagnosis of an orthopedic injury and the trial court denied the defendant’s summary judgment motion. On appeal, the Second Department agreed with Mr. Vizza’s characterization of the trial court’s unwarranted reluctance to grant summary judgment, and dismissed the case solely on the ground of lack of causation, which rarely is a basis for granting a summary judgment motion. The Appellate Division also agreed with the defense position that plaintiff’s expert was not qualified to offer opinions outside of his or her sub-specialty of medicine.

Robert G. Vizza
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