Dov Sternberg (Partner-New York City) defended a case in trial court in which the plaintiff who donated blood fainted on her way out of the blood donation center resulting in her injuring her face very badly as she fell. Dov argued that the case sounded in medical malpractice rather than simple negligence since a blood donation center is required by regulation to have a medical director – thus reinforcing the idea that the claims bear a “substantial relationship to the rendition of medical treatment.” His motion was denied. On appeal, Judy Selmeci (Partner-New York City) took advantage of ambiguity in New York law on this issue, especially since a number of cases hold that the failure to screen donated blood for disease is negligence and not medical malpractice. Having determined that the case thus requires a certificate of merit, the Appellate Division gave the plaintiff 60 days to file one – or else the case could be dismissed. This procedural move is noteworthy also because there’s been only one reported case in the past where the Appellate Division set down the time limit for the plaintiff’s compliance (rather than simply directing the case back to the trial court for further proceedings “not inconsistent” with its determination, or something to that effect). That ambiguity is largely gone now. The Second Department held that the plaintiff’s case sounds in malpractice and not negligence.