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In nursing malpractice cases, like any other civil case, it is essential for both parties to comply with deadlines and to answer discovery requests in promptly, so that the case may be resolved in an equitable and efficient manner. Thus, if a party fails to abide by the statutory deadlines and obligations, it may waive the right to produce evidence at trial. Recently, the appellate division of the New York Supreme Court discussed what constitutes sufficient grounds to preclude  a party from introducing evidence in a nursing malpractice case. If you suffered harm due to inappropriate care rendered by a nurse, you should meet with a knowledgeable Syracuse nursing malpractice attorney regarding your harm and what compensation you may be owed.

Factual and Procedural Background

It is reported that the plaintiff’s decedent was a resident at the defendant’s nursing and rehabilitation facility. During her stay, she suffered a pulmonary injury and a leg injury. She was subsequently transferred to a hospital, where she died. The plaintiff asserted a nursing malpractice claim against the defendant. During discovery, the plaintiff requested information regarding the nurses that worked at the defendant facility during the time the plaintiff’s decedent was admitted. The defendant refused to provide the information, and the plaintiff filed a motion to compel.

Allegedly, the defendant then provided the plaintiff with certain identifying information pursuant to a court order. The plaintiff subsequently moved to prohibit the defendant from producing any evidence at trial and to strike the defendant’s answer due to the defendant’s refusal to comply with discovery demands. The court denied the plaintiff’s motion, after which the plaintiff appealed.

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If a person suffers injuries in a hospital, the hospital may be liable for the person’s harm. The standard for imposing liability against a hospital in a medical malpractice case is the same as the standard from proving the liability of an individual defendant, in that a plaintiff must show a deviation from the standard of care caused his or her harm. The failure to establish proximate cause can be fatal to a plaintiff’s claims, as illustrated in a recent hospital malpractice case decided by the appellate division of the Supreme Court of New York. If you sustained injuries in a hospital due to inadequate care, it is important to meet with a zealous Syracuse hospital malpractice attorney to discuss whether you may be able to recover damages.

Factual Background

It is alleged that the plaintiff, who was 87-years-old, visited the emergency room of the defendant hospital due to an infection in her foot. The defendant’s staff assessed the plaintiff as being at risk for falling and placed the plaintiff on fall protocol. The following morning, however, the plaintiff fell from her bed and fractured her hip. She required surgery to treat her fracture. She subsequently filed a medical malpractice claim against the defendant. The defendant filed a motion for summary judgment, arguing that the plaintiff could not establish liability. The court granted the defendant’s motion, and the plaintiff appealed.

Proving a Hospital’s Liability

A defendant hospital seeking to have a case dismissed via summary judgment bears the burden of proving either that there was no deviation from the applicable standard of care or that any deviation was not the proximate cause of the plaintiff’s alleged harm. If the defendant meets this burden, the plaintiff must produce evidence of a triable issue of fact in response to the defendant.

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If a person dies due to medical malpractice, the administrator of the person’s estate can file a lawsuit seeking compensation on behalf of the estate. Regardless of the merits of the underlying claim, however, if the party seeking damages does not comply with the procedural requirements for pursuing claims on behalf of the estate, the claim may be dismissed. This was demonstrated in a recent medical malpractice case which was dismissed due to the plaintiff’s inappropriate filings. If you suffered the loss of a loved one due to medical malpractice it is critical to retain a skilled Syracuse medical malpractice attorney to help you seek damages.

Factual and Procedural Background

Reportedly, in 2015, the plaintiff filed a lawsuit against the defendant, setting forth causes of action of medical malpractice on behalf of her decedent’s estate, arising out of nursing home negligence in January through September 2013. The plaintiff’s decedent died on September 30, 2013, but the plaintiff was not named as the administratrix of the decedent’s estate until January 2018. The case was dismissed by the court for the failure to prosecute. The plaintiff filed a motion to reinstate the action.

Dismissal of a Case Due to Improper Commencement

On appeal, the court affirmed the dismissal of the case and denied the plaintiff’s motion. The court stated that the action was improperly commenced and should have been dismissed at the outset, due to the plaintiff’s failure to obtain proper letters of administration. Further, the court noted that the plaintiff’s attorney lacked any authority to act until the proper party was substituted. As the case was dismissed due to the failure to prosecute, however, the court was limited to addressing the arguments set forth in the plaintiff’s motion.

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Under New York law, the burden shifts in medical malpractice cases from the plaintiff to the defendant, who must prove that he or she is entitled to judgment as a matter of law. If the defendant meets this burden, the case will be dismissed, unless the plaintiff produces sufficient evidence to establish an issue of fact exists as to whether the defendant committed malpractice. Recently, in a case in which the plaintiff alleged that her son was harmed by urological malpractice, a New York appellate court analyzed what constitutes sufficient evidence to raise a triable issue of fact. If you were harmed by urology malpractice it is essential to engage a knowledgeable Syracuse urology malpractice attorney to assist you in pursuing a claim for damages.

Factual and Procedural Background

It is reported that the plaintiff mother took the plaintiff son to the emergency room due to complaints of pain. He was later diagnosed with testicular torsion and lost his right testicle. The plaintiffs subsequently filed a malpractice lawsuit against the urologist who treated plaintiff son in the emergency room, alleging that the failure to properly diagnose and treat the plaintiff son caused the loss of his right testicle. The defendant moved for summary judgment. In response, the plaintiffs submitted an affidavit of a Connecticut physician certified in pediatric emergency medicine.

It is alleged that the court found that the plaintiffs’ expert affidavit was insufficient to establish a triable issue of fact and granted the defendant’s motion. Specifically, the court stated that the plaintiffs’ expert was not qualified to opine on urological care and that he failed to establish that the standards of care in Connecticut were the same as those in New York. The plaintiffs appealed.

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Surgeons are highly skilled and trained and are required to provide treatment commensurate with their training. Surgeons sometimes fall short of the standard of care, however, and when they do, they should be held accountable for any harm they cause. A New York appellate court recently discussed what constitutes sufficient evidence of surgical malpractice, in a case in which the plaintiff alleged a spinal surgeon caused her injuries. If you or a loved one were harmed by a negligent surgeon, it is critical to meet with a zealous Syracuse surgical malpractice attorney to discuss whether you may be able to recoup damages for your harm or the harm of your loved one.

Factual Background

It is alleged that the plaintiff injured her back in a workplace accident in February 2010. She was subsequently referred to the defendant surgeon after epidural steroid injections failed to alleviate her symptoms. An MRI in June 2010 revealed compression of the lumbar spine, and the defendant recommended surgery. Approximately one month later, the defendant performed a discectomy and decompression surgery on the plaintiff. Following the surgery, the plaintiff reported decreased strength in her right leg. An MRI was performed, and the results indicated an impingement on a nerve. The plaintiff was discharged and had three follow-up appointments with the defendant.

Reportedly, in September 2010, the plaintiff was advised she would have to undergo additional surgery if her symptoms did not improve. The plaintiff continued to treat with the defendant for a few additional months and then sought treatment from a second spinal surgeon. The second surgeon recommended another discectomy or fusion surgery. The plaintiff underwent a discectomy, which only partially improved her symptoms. She subsequently filed a medical malpractice lawsuit against the defendant, arguing in part that the defendant proximately caused the plaintiff’s injuries by not recommending surgery when he evaluated her in August 2010. The jury found in favor of the plaintiff, after which the defendant filed a motion to set aside the verdict. The court granted the motion and plaintiff appealed.

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In many medical malpractice cases filed in New York, the court dismisses the case due to procedural errors, regardless of whether the plaintiff has a valid claim. For example, in instances in which a person is deceased due to medical malpractice, the claim must be pursued by a personal representative rather than the deceased individual. An appellate court of New York recently discussed the procedural aspects of pursuing a claim following a person’s death due to medical malpractice, in a case in which the plaintiff alleged hospital malpractice caused the death of his child. If you or your child were injured by hospital malpractice it is crucial to retain an experienced Syracuse hospital malpractice attorney to provide you with a strong chance of a successful outcome under the facts of your case.

Factual and Procedural History of the Case

Allegedly, the plaintiff father’s child was treated at the defendant hospital. The child subsequently died, after which the plaintiff father filed a hospital malpractice case, naming the deceased child as the plaintiff. The child’s mother was named as a plaintiff as well, in her individual capacity. The plaintiff father then filed a motion to substitute himself as the administrator of the child’s estate as a plaintiff and to amend the caption. He also sought leave to amend the complaint to include a wrongful death claim. The defendant hospital filed a cross-motion to dismiss the complaint on the grounds the motion for substitution was untimely. The court denied the plaintiff father’s motion and granted the defendant’s, after which the plaintiffs appealed.

Motion for Substitution Under New York Law

Under the New York Rules of Civil Procedure, a motion for substitution must be made within a reasonable time. In determining whether a motion for substitution is timely, the court will evaluate several factors, including whether the party seeking substitution was diligent, whether the claim or defense has potential merit, and whether the other party will suffer prejudice as a result of the substitution.

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Generally, a plaintiff has the right to decide where to pursue his or her medical malpractice claim. There are limitations, however, in that a court cannot render rulings in a case in which it has no jurisdiction over an entity or person who is named as a defendant. In a recent hospital malpractice case arising out of the Appellate Division of the Supreme Court of New York, the court explained when the exercise of jurisdiction over an out of state defendant is valid. If you or a family member were rendered insufficient care in a hospital and suffered harm as a result it is critical to meet with a knowledgeable Syracuse hospital malpractice attorney regarding your options for seeking compensation for your harm.

Facts and Procedure of the Case

It is reported that the plaintiff’s decedent received treatment at the defendant hospital, which was located in Pennsylvania, where he was cared for by several physicians. The plaintiff filed a medical malpractice and wrongful death case against the defendant hospital and numerous individually named physicians, all of whom practiced solely in Pennsylvania. The defendants collectively filed a motion for summary judgment, arguing that the court lacked personal jurisdiction and the case must be dismissed. The court granted the motion and the plaintiff appealed.

Exercising Jurisdiction Over Out of State Defendants

On appeal, the court rejected the plaintiff’s assertion that the defendant hospital consented to jurisdiction by registering as a foreign corporation in New York, or that the named defendants consented to jurisdiction by obtaining licenses to practice medicine in New York. Additionally, the court was not persuaded by the plaintiff’s argument that the defendants waived the right to object with regards to personal jurisdiction, due to the fact that the parent company of the defendant hospital accepted service on behalf of the defendants. The court explained that the acceptance of service, standing alone, did not constitute a waiver or an objection to personal jurisdiction. Continue reading

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In New York medical malpractice cases, if a plaintiff seeks to recover damages on behalf of an estate, he or she must comply with the New York Rules of Civil Procedure, otherwise, the plaintiff runs the risk of having his or her case dismissed. This was demonstrated in a recent hospital malpractice case decided by the Appellate Division of the Supreme Court of New York, in which the court discussed when a plaintiff’s case could be dismissed due to lack of standing to recover on behalf of the estate. If you or a loved one were injured by inadequate care rendered by a hospital it is vital to speak with a seasoned Syracuse hospital malpractice attorney to discuss what evidence you must produce to recover damages.

Factual and Procedural Background of the Case

Reportedly, in 2016, the plaintiff filed medical malpractice and wrongful death claims against the defendant hospital and defendant nursing home that cared for his mother prior to her death. The plaintiff filed the case as the proposed administrator of his mother’s estate. The defendants subsequently filed separate motions to dismiss, arguing that the plaintiff lacked the capacity to sue on behalf of the estate since official letters of administration had not been granted. The court granted the defendant nursing home’s motion on June 1, 2016, and the defendant hospital’s motion on October 18, 2016.

It is alleged the plaintiff then filed a second suit that was virtually identical as a voluntary administrator of the estate. The defendant again moved to dismiss the plaintiff’s case, arguing he was not permitted to bring claims on behalf of the estate. The plaintiff was then granted letters of administration. Thus, he opposed the defendant’s motion, arguing it should be denied because he had letters of administration, and moved to amend the pleadings to recognize him as the administrator. The court ruled that the prior lawsuit was terminated by the May 26 order and granted the defendant’s motion and the plaintiff appealed.

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While most medical malpractice cases are straightforward and merely allege harm caused by inadequate care provided by a doctor, some cases allege a physician should be held liable for inappropriate acts committed by a third party. In a recent case, the Supreme Court of New York, Bronx County analyzed whether a primary care physician could be held liable under for medical malpractice for criminal acts committed by a physical therapist the plaintiff was referred to by the physician. If you sustained harm due to the negligent care or referral of a primary care physician, it is prudent to meet with a trusted Syracuse primary care physician malpractice attorney as soon as possible to discuss whether you may be entitled to compensation.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff treated with the defendant neurologist who diagnosed the plaintiff with a concussion and a spinal injury. The defendant neurologist prescribed physical therapy for the plaintiff and then referred the plaintiff to the defendant primary care physician (PCP). In turn, the primary care cleared the plaintiff for physical therapy following a physical examination. The plaintiff underwent physical therapy with the defendant student therapist, at the direction of the defendant PCP.

Allegedly, during one of the therapy sessions, the defendant student sexually assaulted the plaintiff. The plaintiff subsequently filed a medical malpractice lawsuit against the defendants alleging, in part, that the defendant PCP improperly prescribed medications and physical therapy, and knew or should have known that the defendant student would engage in sexual abuse and failed to protect the plaintiff from harm. The defendant PCP filed a motion for summary judgment, which the court ultimately granted.

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When a person wishes to pursue a medical malpractice claim in New York, he or she must not only prove that the defendant doctor negligently caused his or her harm, the person must also serve the defendant with the lawsuit within the statutorily prescribed timeframe. In other words, even if a lawsuit is filed within the appropriate time period, a party’s claim may nonetheless be dismissed if it is not properly served. A court of the appellate division of the Supreme Court of New York recently illustrated the importance of timely service, in a case in which the court affirmed the dismissal of an emergency room malpractice case. If you were harmed by inadequate care rendered by an emergency room physician, it is crucial to meet with a trusted Syracuse emergency room malpractice attorney regarding your harm and your potential claims.

Facts and Procedure of the Case

It is reported that the plaintiff visited the emergency department of the defendant hospital in November 2012. In December 2014, the plaintiff filed a malpractice lawsuit against the defendant hospital and defendant doctor, arising out of the defendant doctor’s alleged failure to diagnose the plaintiff with a large pneumothorax during his November 2012 emergency room visit. In September 2015, the plaintiff filed a motion to extend his time to serve the defendant doctor with the summons and complaint, which the court granted. In January 2016, a process server allegedly delivered a copy of the summons and complaint to a person of appropriate age and discretion at the defendant doctor’s place of business. Additionally, the process server mailed a copy of the summons and complaint to the defendant doctor at his place of business.

It is alleged that on April 2016, the plaintiff moved for leave to file a default judgment against the defendant doctor, due to his failure to enter an appearance or file a response to the complaint. The court granted the motion. The defendant doctor subsequently filed a motion to vacate the order granting the default judgment and to determine the validity of the service of process. The plaintiff filed a cross-motion for an extension of time to serve the defendant doctor with the complaint and summons. The court ultimately found that the defendant doctor was not properly served, vacated the order granting default judgment, and dismissed the plaintiff’s complaint as it pertained to the defendant doctor. The plaintiff appealed.

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