Syracuse Medical Malpractice and Personal Injury Lawyer Blog

Published on: July 19, 2019

New York Court Discusses Waiver of Privilege in a Radiology Malpractice Case

In any New York medical malpractice lawsuit, certain information will be protected from disclosure based on a privilege afforded by the law. For example, there is certain information that is privileged under New York Public Health and Education laws, and a defendant can refuse to produce information under the privilege. If the defendant waives the privilege, however, it loses the right to argue that the protected information cannot be used as evidence. Recently, a New York court discussed the standards of reviewing privilege and waiver in a radiology malpractice case. If you suffered harm because of inappropriate radiological care, it is critical to speak with a knowledgeable Syracuse radiology malpractice attorney regarding the circumstances surrounding your harm and what compensation you may be able to recover.

Facts and Procedures of the Case

Allegedly, the plaintiff’s decedent presented to the defendant hospital for a CT guided needle biopsy to be performed by the defendant radiologist. The defendant physician mistakenly placed the biopsy needle in the decedent’s aorta, ultimately resulting in her untimely death. The plaintiff’s estate filed a radiology malpractice lawsuit against the defendants. During discovery, plaintiff’s counsel sought to depose a neurologist who examined the defendant radiologist for the purposes of determining his mental and physical capacity and competence in rendering care. The neurologist also produced a written report of his findings. The defendants filed a motion for a protective order, arguing that the neurologist’s testimony and report were privileged. The trial court granted the motion and the plaintiffs appealed.

Privilege in Medical Malpractice Cases

The court noted that the testimony and report were privileged under Public Health Law § 2805–m(2) and Education Law § 6527(3). The court stated, however, that when a party discloses a privileged document it typically waives the privilege unless the party intended for the document to remain confidential and took reasonable steps to prevent its disclosure. The court indicated that in the subject case, the document was originally disclosed by the examining neurologist in a different lawsuit. The defendant’s act of filing the report in the other lawsuit, however, permitted the report to be disclosed to the public at large. Specifically, the court noted that the defendant did not file the report under seal or take any other steps to prevent its disclosure. Thus, the court found that the defendant had waived the statutory privilege by disclosing the report. As such, the court reversed the trial court ruling.

Published on: July 13, 2019

New York Court Discusses Burden of Proof in a Emergency Room Malpractice Case

by DeFrancisco & Falgiatano

When people have critical and acute health concerns, they typically visit the emergency room of a hospital to obtain immediate treatment and prevent further harm. If the treatment providers in the emergency room provide inadequate care however, it may cause the patient further harm. A New York appellate court recently addressed what a plaintiff seeking to assert an emergency room malpractice claim must prove. If you sustained harm due to negligent care rendered in an emergency room, it is critical to consult a seasoned Syracuse emergency room malpractice attorney regarding your potential claims.

Facts Regarding the Plaintiff’s Treatment

Reportedly, the plaintiff was taken to the emergency room of the first defendant hospital after she was found lying on the sidewalk by the police. She arrived at the hospital at 10:29 pm but left against medical advice at 1:20 am. She then arrived at the emergency room of the second defendant hospital at 1:35 am and was triaged at 1:39 am. The plaintiff was treated by the defendant physician, who ordered a CT scan of her head. The results of the scan indicated that the plaintiff suffered multiple hemorrhages and obstructive hydrocephalus.

It is alleged that upon review of the scans, the physician indicated that the plaintiff needed to undergo immediate surgery and should be transferred to a facility with a neurosurgery department. She was transferred to the third defendant hospital, where the attending physician noted he suspected the cause of her cerebral hemorrhaging was an aneurysm. She then underwent a surgical procedure that was complicated by an aneurysm rupture. She subsequently filed a medical malpractice lawsuit against the defendants. The defendants then filed a motion for summary judgment asking the court to dismiss the plaintiff’s lawsuit.

Published on: July 5, 2019

Court Discusses Substitution of Parties in Medical Malpractice Cases

by DeFrancisco & Falgiatano

When dealing with any health issues it is imperative to obtain an accurate diagnosis and proper treatment in a timely manner. A doctor’s failure to promptly diagnose and treat a person’s illness or condition can result in severe detriments and may sadly lead to a person’s premature death. In cases where a plaintiff suffers an untimely death after the lawsuit has been filed, it is critical to follow the proper procedures for preserving the claim. This was evidenced in a recent New York appellate court case in which the court affirmed the dismissal of the plaintiff’s case for the failure to properly substitute parties after the plaintiff’s death. If you suffered damages due to the loss of your treating physician’s failure to diagnose or treat you promptly it is essential to meet with a capable Syracuse failure to diagnose malpractice attorney to discuss your case and what you must prove to recover damages.

Factual and Procedural Background

It is alleged that the plaintiffs, husband and wife, filed a medical malpractice lawsuit against the defendant medical center and defendant physician, claiming that the physician committed malpractice by failing to diagnose the plaintiff husband in a timely manner, and that the defendant medical center was negligent for failing to properly supervise the physician. Approximately a year after the lawsuit was filed, the plaintiff husband died.

Reportedly, two years after the plaintiff husband’s death, the plaintiff wife filed a separate wrongful death lawsuit against the defendants, as the proposed administrator of the plaintiff husband’s estate. The defendants subsequently filed a motion to dismiss the original lawsuit, due to the plaintiff wife’s failure to pursue a timely substitution of parties on behalf of the plaintiff husband. The trial court granted the motion to dismiss and the plaintiff appealed.

Published on: June 29, 2019

New York Court Explains Application of Frye Test in Medical Malpractice Cases

by DeFrancisco & Falgiatano

Expectant parents rely on their obstetricians and gynecologists to protect the health of their unborn child and to ensure the child is delivered safely. Unfortunately, ob-gyns do not always provide adequate care, which can cause a child to sustain devastating and permanent injuries during birth. In the majority of cases, expert medical testimony is required to prove that the treatment provided deviated from the standard of care and therefore caused a child’s harm. Recently, a New York court explained when expert medical testimony should be barred under the Frye test, in a case in which the plaintiff alleged her child suffered injuries at birth due to her ob-gyn’s negligent care. If your child suffered injuries at birth due to the negligent care provided by your ob-gyn, it is vital to speak with a trusted Syracuse ob-gyn malpractice attorney regarding your options for seeking compensation for your harm and the harm of your child.

Factual Background

Allegedly, the plaintiff was treated by the defendant ob-gyn during the course of her pregnancy, and during the birth of her child on April 14, 2006. The child had normal Apgar scores at birth and appeared to be in good health. Reportedly, when the child was two to three months old, the mother noticed that the child did not move her right hand. Subsequently, an MRI performed in March 2007 revealed that the child suffered a chronic infarct in the left frontal lobe of her brain. Subsequent tests revealed the child had severe brain damage caused by a remote cerebral injury.

It is reported that following her child’s diagnoses, the plaintiff filed an ob-gyn malpractice lawsuit against the defendant, arguing that the defendant’s failure to properly manage her labor and delivery and failure to perform an emergency Cesarean section in a timely manner caused the child’s harm. Prior to trial, the defendants filed a motion seeking a Frye order prohibiting the plaintiff’s expert from testifying that the plaintiff suffered an intrapartum injury during labor and delivery, on the basis that it relied upon a novel theory that was not generally accepted by the medical community.

Published on: June 25, 2019

New York Court Reverses Verdict Finding No Surgical Malpractice as Against the Weight of the Evidence

by DeFrancisco & Falgiatano

In most surgical malpractice cases, the plaintiff will elect to have a jury decide whether the defendant doctor should be held liable for the plaintiff’s harm. Juries do not always assess liability accurately, however, and in some cases, a jury will issue a verdict that is in opposition to the clear evidence of the case. If the jury’s verdict is against the weight of the evidence, the court may set it aside, as illustrated in a recent New York surgical malpractice case in which the jury found the defendant was not liable despite substantial evidence that the defendant did not meet the standard of care. If you were harmed by surgical malpractice it is prudent to meet with a proficient Syracuse surgical malpractice lawyer to discuss your case and what damages you may be able to recover.

Factual and Procedural Background

It is alleged that the plaintiff underwent a surgical procedure that was performed by the defendant. During the surgery, the defendant failed to appropriately inspect the plaintiff’s bowel and therefore failed to observe that the plaintiff suffered a perforation in her bowel. The plaintiff subsequently developed peritonitis, fell into a coma, and suffered gastrointestinal, respiratory, and organ failure. She subsequently filed a malpractice lawsuit against the defendant. Following a trial, a jury issued a verdict in favor of the defendant, finding in part that the defendant did not deviate from the applicable standard of care. The plaintiff filed a motion to set aside the verdict, arguing that it was against the weight of the evidence.

Setting Aside a Verdict That is Against the Weight of the Evidence

Under New York law, it is well established that when a verdict is against the weight of the evidence it will be set aside. A verdict will be found to be against the weight of the evidence when the evidence introduced at trial weighed so heavily in favor of the party moving to set aside the verdict, that the jury could not have reached the verdict based upon a fair interpretation of the evidence.

Published on: June 20, 2019

Court Discusses Appropriate Venue in New York Medical Malpractice Cases

by DeFrancisco & Falgiatano

In most cases, as the plaintiff is the party that commences a lawsuit, he or she chooses the venue in which an action will be heard. In certain instances, however, the defendant can move for a change of venue, which the court may grant if it finds that the forum chosen by the plaintiff is not appropriate. In a recent New York appellate court case in which the plaintiff alleged harm due to the failure to diagnose her husband in a timely manner, the court discussed what constitutes an appropriate forum in a medical malpractice lawsuit. If you the suffered the loss of a loved one due to a doctor’s negligent failure to diagnose an injury or illness you should speak with an experienced Syracuse failure to diagnose malpractice lawyer regarding your options for seeking damages.

Facts of the Case

It is alleged that the plaintiff’s husband treated with the defendant physician at the defendant hospital. The plaintiff’s husband ultimately died due to an aneurysmal AV fistula. The plaintiff filed a lawsuit against the defendants, alleging medical malpractice due to the failure to diagnose the plaintiff’s husband in a timely manner, wrongful death, and lack of informed consent. The defendants filed a motion to change the venue from one county to another. The court denied the motion and the defendants appealed.

Appropriate Venue in a Medical Malpractice Case

Under New York law, the court can change the place of a trial in an action where the county in which the lawsuit was filed is not the proper county. For the court to grant a defendant’s motion to dismiss, the defendant must prove that the venue chosen by the plaintiff is improper and that his or her chosen venue is proper. If the defendant meets this burden, the plaintiff can oppose the motion by showing that the venue he or she selected is proper. Continue reading

Published on: June 12, 2019

New York Court Discusses When a Failure to Diagnose Proximately Causes Harm

by DeFrancisco & Falgiatano

If you suffered damages due to your doctor’s failure to diagnose or treat an illness, connecting your doctor’s inadequate care to your harm is essential to present a successful case. This was illustrated in a case recently ruled upon by the appellate division of the Supreme Court of New York, in which the court found that the doctor’s failure to diagnose the plaintiff did not result in her ultimate harm, and dismissed the plaintiff’s case. If you were injured by a doctor’s failure to diagnose or treat your illness it is critical to retain a trusted Syracuse hospital malpractice attorney to set forth persuasive arguments to show that your doctor should be liable for your damages.

Facts Regarding the Plaintiff’s Treatment

Reportedly, the plaintiff presented to the emergency room of the defendant hospital where she was treated and released, with complaints of ear pain. She was later diagnosed with an ear infection by another treatment provider, and ultimately suffered hearing loss. She subsequently filed a medical malpractice lawsuit against the defendant hospital and defendant emergency room physician, alleging that the failure to diagnose her ear infection caused her to sustain hearing loss. The defendants filed a motion for summary judgment, which the trial court denied. The defendants appealed and on appeal, the appellate court reversed the trial court ruling.

Proximate Cause

On appeal, the court stated that the defendants established as a matter of law that they did not depart from the applicable standard of care in rendering treatment to the plaintiff. Specifically, the defendants’ expert affidavits stated that further testing or a referral to an otolaryngologist was not indicated by the results of the plaintiff’s physical examination or the symptoms she described. Further, the reports established that to the extent the defendants deviated from the standard of care in failing to diagnose the plaintiff’s ear infection, any departure did not proximately cause the plaintiff’s alleged harm. Under New York law, proximate cause is established in a medical malpractice case when it is a substantial factor in bringing about the alleged harm.

Published on: June 6, 2019

NY Court Discusses What Constitutes a Doctor-Patient Relationship in an Orthopedic Malpractice Case

by DeFrancisco & Falgiatano

One of the essential elements of any medical malpractice claim is a doctor-patient relationship. While in most instances, whether a doctor-patient relationship exists is not disputed in some cases the status of the relationship between the injured party and the physician that allegedly caused the injured party harm is not clear. This was illustrated in a recent New York case in which the plaintiff alleged that he was injured due to medical malpractice committed during an independent medical examination that was conducted by an orthopedist for insurance purposes. If you sustained injuries due to orthopedic malpractice it is in your best interest to retain a skilled Syracuse orthopedic malpractice attorney as soon as possible to represent you in your pursuit of compensation.

Factual Background of the Case

Allegedly, the plaintiff sustained injuries to his left shoulder in a car accident. He subsequently presented to the defendant orthopedist for an independent medical examination for insurance purposes. During the examination, the defendant reportedly applied strong pressure to the plaintiff’s left kneecap, causing him pain. The defendant then held the plaintiff’s left arm and bent it, causing a popping sound and extreme pain. The plaintiff subsequently required injections in his left shoulder and other additional treatment. He filed a medical malpractice lawsuit against the defendant. The defendant then filed a motion to dismiss, arguing that the plaintiff could not recover as a matter of law because no doctor-patient relationship existed.

Published on: May 29, 2019

New York Court Discusses Parameters of Continuous Treatment Doctrine in Failure to Diagnose Malpractice Case

by DeFrancisco & Falgiatano

Under New York law, a plaintiff who wishes to pursue a medical malpractice claim arising out of a doctor’s negligent failure to diagnose and treat the plaintiff in an appropriate time frame must file a lawsuit within two years and six months of the date of the alleged harm. While certain factors, such as the doctor’s ongoing treatment of the plaintiff will toll the statute of limitations, not all treatment constitutes continuous treatment for purposes of tolling the statute. A New York appellate court recently discussed what treatment is sufficient to toll the statutory period, in a case arising out of alleged ophthalmic malpractice. If you suffered harm due to your physician’s failure to provide you with a proper diagnosis in a timely manner you should consult a trusted Syracuse failure to diagnose malpractice attorney to discuss the circumstances surrounding your harm and what damages you may be able to recover.

Factual Background of the Case

It is alleged that the plaintiff filed a medical malpractice action against the defendant ophthalmic practice and defendant ophthalmologist due to the failure to promptly diagnose and treat the plaintiff’s glaucoma. The alleged malpractice occurred on February 25, 2011, July 15, 2011, and December 6, 2013. The defendants filed a motion to dismiss the plaintiff’s case as time-barred. The trial court denied the defendants’ motion, and the defendants appealed.

Care Under the Continuous Treatment Doctrine

A defendant arguing that a plaintiffs’ medical malpractice lawsuit is barred by the applicable statute of limitations must set forth prima facie evidence that the time in which the plaintiff was required to commence his or her lawsuit has expired. If the defendant establishes the statutory period has passed, the burden shifts to the plaintiff to raise a material issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine.
Continue reading

Published on: May 24, 2019

New York Court Addresses Scope of Informed Consent

by DeFrancisco & Falgiatano

Any time a person needs to undergo a surgical procedure, the doctor performing the procedure is required to obtain the person’s informed consent. In other words, the doctor must explain to the person the risks, benefits, and potential outcomes of the surgery, and obtain consent from the person to proceed with the procedure. Even if a doctor obtains informed consent prior to performing a procedure, if the doctor exceeds the scope of the consent it may constitute surgical malpractice, as discussed in a recent case ruled on by a New York court of appeals. If your surgeon did not obtain your valid consent prior to your surgery and you suffered harm as a result you should speak with a trusted Syracuse surgical malpractice attorney who can assist you in seeking any compensation you may be owed.

Factual Background of the Surgical Procedure

Reportedly, the defendant doctor performed an exploratory laparoscopic surgical procedure on the plaintiff at the defendant hospital. Prior to undergoing the procedure, the surgeon obtained consent from the plaintiff to remove her fallopian tubes in the event a malignancy was discovered during the surgery. The plaintiff underwent the procedure, during which her fallopian tubes were removed despite the fact that no malignancy was found.

It is reported that the plaintiff then filed a surgical malpractice claim against the defendants. The defendants filed motions to dismiss the plaintiff’s claims for failure to serve the complaint in a timely manner and for failure to state a meritorious claim. The trial court denied the defendants’ motions, and the defendants appealed.
Continue reading