Syracuse Medical Malpractice and Personal Injury Lawyer Blog

Published on: May 24, 2020

New York Court Discusses Pursuing Medical Malpractice Claims Under the Federal Tort Claims Act

A variety of health care providers’ actions or failure to act may give rise to a claim for medical malpractice. For example, not only may improperly rendered care form the basis for a medical malpractice lawsuit, but the failure to obtain a patient’s informed consent prior to performing a procedure may as well. A plaintiff asserting multiple claims in a medical malpractice action must meet the requirements for proceeding with each claim, however, as each claim is analyzed separately, as demonstrated in a recent ob-gyn malpractice case in New York. If you or your child suffered harm due to negligent care provided by an obstetrician or gynecologist, it is advisable to consult a seasoned Syracuse ob-gyn malpractice attorney regarding your potential claims.

Factual and Procedural History

It is alleged that the plaintiff treated at the defendant health center during her pregnancy. The defendant was a federally qualified health center eligible for coverage under the Federal Tort Claims Act. The plaintiff’s baby suffered numerous birth injuries due to the defendant’s failure to conduct proper fetal monitoring or to deliver the baby in a timely manner. Thus, the plaintiff filed a lawsuit against the defendant pursuant to the Tort Claims Act, alleging medical negligence and lack of informed consent, and arguing that she suffered the loss of consortium of her child. The defendant filed a motion to dismiss the plaintiff’s lack of informed consent and the loss of consortium claims.

Pursuing Medical Malpractice Claims Under the Federal Tort Claims Act

The Federal Tort Claims Act is the sole remedy for claims against the United States or any of its employees. Thus, prior to commencing a lawsuit under the Tort Claims Act, a plaintiff must file an administrative claim with the correct federal agency, and the claim must be denied. Filing the claim is a jurisdictional requirement that cannot be waived. As such, if a plaintiff fails to meet this requirement, his or her claim must be dismissed due to the court’s lack of subject matter jurisdiction.

Published on: May 19, 2020

Court Analyzes the Impact of Judicial Estoppel on Medical Malpractice Claims in New York

by DeFrancisco & Falgiatano

If a person harmed by medical malpractice in New York wishes to seek compensation via a medical malpractice lawsuit, it is important that the person understands how other unrelated cases may impact his or her malpractice case. For example, if a medical malpractice plaintiff files for bankruptcy during the pendency of his or her malpractice litigation, it could impair the plaintiff’s rights to recover a damages award, as discussed in a recent New York case. If you were injured by incompetent medical care, it is wise to speak to a knowledgeable Syracuse medical malpractice attorney to discuss what factors may impact your case.

Procedural History of the Case

It is reported that in 2006 the plaintiff and her husband filed a medical malpractice lawsuit against the defendant, alleging that the defendant provided the plaintiff with negligent medical care, which caused her to suffer unspecified injuries. Then, in 2008 while the medical malpractice lawsuit was still pending, the plaintiff filed for bankruptcy. She did not list her pending medical malpractice case as an asset in the bankruptcy proceeding, which was fully administered and closed in 2009.

Allegedly, in 2016, the plaintiff once again filed for bankruptcy. She did not list her pending medical malpractice case in the second bankruptcy proceeding, either. The second bankruptcy was fully administered and closed in August of 2016. Then, in November, the plaintiff moved to reopen her initial bankruptcy to list the pending medical malpractice action as an asset of the estate. The court granted the plaintiff’s motion, and the bankruptcy schedule was ultimately amended to include the medical malpractice action. The defendant then filed a motion to dismiss the medical malpractice lawsuit, arguing that the plaintiff lacked the capacity to sue due to judicial estoppel. The court granted the defendant’s motion, and the plaintiff appealed.

Published on: May 12, 2020

Court Analyzes Medical Malpractice Versus Ordinary Negligence in a Case Alleging Harm Sustained at a New York Spa

by DeFrancisco & Falgiatano

Self-proclaimed med-spas that offer both medical and cosmetic procedures are increasingly prevalent throughout New York. Med-spas blur the lines between healthcare and aesthetics, and in many cases, it is not clear whether harm caused by negligent care at a med-spa sounds in medical malpractice or ordinary negligence. This was demonstrated in a recent New York appellate case in which a plaintiff’s claims for failure to obtain informed consent prior to a laser hair removal procedure were dismissed after the court ruled that the procedure was not medical in nature. If you suffered harm due to a negligently performed medical procedure, it is prudent to speak with a skillful Syracuse medical malpractice attorney regarding your potential claims for damages.

Facts of the Case

It is alleged that the plaintiff visited the defendant spa, where she underwent a laser hair removal treatment. The plaintiff subsequently suffered burns and other injuries due to the treatment, after which she filed a lawsuit against the defendant alleging, in relevant part, that the defendant failed to obtain the plaintiff’s informed consent regarding the potential risks of the treatment prior to performing the treatment. The plaintiff also set forth claims of negligent hiring and supervision and ordinary negligence. Specifically, the plaintiff alleged that the defendant failed to render the treatments in a professional or competent manner and failed to properly test the plaintiff prior to performing the treatment. The defendant filed a motion to dismiss the plaintiff’s claims in their entirety. The trial court denied the motion, and the defendant appealed.

Medical Malpractice Versus Ordinary Negligence

On appeal, the court found that the trial court properly denied the defendant’s motion for summary judgment as to the negligence claims, finding that questions of fact existed that precluded the dismissal of such claims. With regards to the plaintiff’s lack of informed consent and negligent supervision claims, however, the court reversed the trial court ruling, dismissing the plaintiff’s claims.

Published on: May 6, 2020

New York Executive Orders Diminish Liability for Medical Malpractice During the COVID-19 Pandemic

by DeFrancisco & Falgiatano

The COVID-19 pandemic has changed every aspect of life in New York for the foreseeable future and has caused an unprecedented strain on hospitals and healthcare providers. In response to the pandemic, the governor issued several executive orders placing restrictions on activities in an effort to slow the spread of the disease. While the orders largely aim to protect public health, a portion of the orders arguably diminishes the protections of people seeking medical treatment, as it reduces healthcare providers’ liability for medical malpractice. If you believe you were harmed due to incompetent medical care during the COVID-19 pandemic or at any other time, it is wise to talk to a capable Syracuse medical malpractice attorney regarding what damages you may be able to recover via a civil lawsuit.

Medical Malpractice During the COVID-19 Pandemic

Reportedly, Governor Cuomo signed legislation at the beginning of March 2020 that enacted the State’s budget, limiting liability for health care providers and facilities for health care services provided pursuant to a COVID-19 emergency rule or else accordance with pertinent law, unless the acts were grossly negligent, constituted reckless misconduct, or willful or intentional conduct, or intentional infliction of harm.

Governor Cuomo also issued an Executive Order on March 23, 2020, stating in part that any statute, law, ordinance, rule, or regulation that hindered, prevented, or delayed people from coping with the disaster or providing aid was temporarily suspended. Further, the order specifically provided that all physicians, nurse practitioners, registered nurses, physician assistants, and specialist assistants are immune from civil liability for any death or injuries that are alleged to have directly resulted from their omissions or acts in the course of providing medical services in response to the COVID-19 pandemic throughout the State. Notably, however, there are exceptions for cases in which a death or injury was caused by the gross negligence of the medical professional in question.

Published on: April 30, 2020

New York Court Discusses Seeking Testimony Relative to a Plaintiff’s Claims in a Medical Malpractice Case

by DeFrancisco & Falgiatano

In many instances in which a patient suffers harm due to incompetent medical care, more than one care provider will contribute to the patient’s harm. Thus, in many medical malpractice cases, a patient may need to obtain information from a provider not only regarding the care provided by the provider but also regarding the sufficiency of the care provided by other practitioners as well. Thus, if a provider refuses to answer certain questions in a deposition, the patient may not be able to obtain the information needed to prove liability. As such, in some cases, a patient may be able to compel a provider to attend a deposition and answer a proposed line of questioning, as shown in a recent New York case. If you were harmed by negligent medical care, it is in your best interest to consult a seasoned Syracuse medical malpractice attorney to discuss your options for seeking the evidence you need to prove your medical provider caused your harm.

Factual Background of the Case

Allegedly, the plaintiff filed a medical malpractice claim against numerous defendants, including a hospital, a radiology practice, and an individual radiologist, arising out of harm caused by the defendant radiologist’s failure to properly diagnose the plaintiff’s heart issues. During the course of discovery, the plaintiff’s attorney deposed the defendant radiologist; however, the defendant radiologist refused to answer certain questions regarding the plaintiff’s treatment she underwent after she was treated by the defendants. Thus, the plaintiff’s attorney filed a motion to compel the defendant radiologist’s continued deposition. The trial court denied the plaintiff’s motion, after which the plaintiff appealed.

Seeking Testimony Relative to the Plaintiff’s Claims

On appeal, the appellate court reversed the trial court ruling and ordered the defendant radiologist to submit to his continued deposition. Specifically, the court stated that under New York law, the defendant radiologist could be questioned as an expert in the radiology practice area regarding the plaintiff’s subsequent medical records, her subsequent CT scans and reports, and the findings set forth in a report following a subsequent angiogram. Further, the court stated that such questions did not solely relate to the alleged negligence of other defendant physicians, but were relevant to the issue of whether the defendants’ collective negligence in failing to diagnose and treat the plaintiff proximately caused the plaintiff’s harm. As such, the appellate court found that the trial court erred in denying the plaintiff’s motion to compel the defendant to answer questions regarding the plaintiff’s treatment at two other hospitals and order the defendant radiologist to submit to a further deposition.

Published on: April 28, 2020

New York Court Discusses Sufficiency of Medical Malpractice Expert Reports

by DeFrancisco & Falgiatano

Most medical malpractice cases hinge on the persuasiveness of each party’s expert reports. Thus, if a plaintiff’s report is deemed insufficient or inadequate, or the plaintiff’s expert is deemed unqualified to offer an opinion on the salient issues, the plaintiff’s report may be precluded, which will generally result in a dismissal of the plaintiff’s case. There are several factors that are assessed in evaluating whether a plaintiff’s report should be admitted into evidence, as discussed in a recent case decided by a New York district court, in which the plaintiff sought damages from the defendant government entity pursuant to the Federal Torts Claims Act. If you suffered harm at a government facility, it is prudent to speak with a trusted Syracuse medical malpractice attorney regarding the evidence you may need to prove liability.

Factual Background

Allegedly, the plaintiff visited the defendant government-owned facility for the treatment of an illness. She reportedly suffered harm when a nurse practitioner over-inflated a blood pressure cuff on her arm. Thus, she filed a medical malpractice claim against the defendant pursuant to the Federal Torts Claims Act. The defendant subsequently moved to preclude the plaintiff’s expert report and to have the plaintiff’s claims dismissed via summary judgment. After reviewing the evidence of the case, the court granted both motions.

Sufficiency of an Expert Report

Under the Federal Rules of Evidence, an expert’s testimony will be admitted if it is based on facts or data, is the product of reliable principles that have been reliably applied to the facts of the case, and the expert possesses the necessary specialized knowledge to assist the trier of fact in determining the ultimate issues of the case. To determine whether an expert is qualified, the court assesses whether the expert’s area of specialty aligns with the subject matter of his or her proposed testimony. Thus, an expert may be insufficiently qualified if his or her expertise is deficient or too general.

Published on: April 20, 2020

Court Discusses Evidence Needed to Sustain a New York Pediatric Malpractice Claim

by DeFrancisco & Falgiatano

The crux of any New York medical malpractice is harm caused by the deviation from the standard of care. As such, regardless of the severity of injuries suffered by a plaintiff, if the plaintiff cannot establish that the injuries were caused by the defendant healthcare provider’s negligence, the plaintiff cannot recover compensation. This was reiterated in a recent New York pediatric malpractice case in which the court ruled that the plaintiff’s evidence was insufficient to allow the plaintiff to prove liability as a matter of law. If you or a loved one sustained injury due to inadequate care rendered by a pediatrician, it is advisable to confer with a Syracuse pediatric malpractice attorney adept at assisting injured parties in the pursuit of damages.

Facts of the Case

It is reported that the plaintiff child was taken to the defendant pediatrician by her parents with various complaints. She was examined, but no diagnostic tests were administered, and she was not admitted to the hospital. She was ultimately diagnosed with numerous serious and permanent conditions, including congestive heart failure, viral myocarditis, and cardiopulmonary failure. The plaintiff subsequently filed a malpractice lawsuit against the defendant and numerous other providers, alleging they caused her grave harm by failing to diagnose her in a timely manner. The defendant moved for dismissal of the plaintiff’s claims against her via summary judgment. The trial court denied the defendant’s motion. The defendant appealed, however, and on appeal, the appellate court reversed, dismissing the plaintiff’s claims against the defendant.

Establishing Liability for Hospital Malpractice

On appeal, the court stated that the trial court erred in refusing to dismiss the plaintiff’s claims against the defendant, as the defendant set forth evidence via an expert affidavit that she did not depart from good and accepted medical practice, and that regardless, any alleged departure did not cause the plaintiff’s harm. Additionally, the court noted that the defendant’s affidavit was specific, detailed, and factual in nature, and addressed each allegation of negligence set forth by the plaintiff.

Published on: April 14, 2020

Court Discusses Relation-Back Doctrine in New York Medical Malpractice Cases

by DeFrancisco & Falgiatano

Plaintiffs in medical malpractice cases, like plaintiffs in other civil lawsuits, are subject to statutes of limitations they must abide by in order to retain the right to pursue damages. As such, if a plaintiff does not file a medical malpractice lawsuit in a timely manner, his or her claim may be dismissed. There are exceptions, however, such as when the relation-back doctrine applies to allow the court to toll the statute of limitations. This was discussed in a recent case decided by a New York court, in which the court ultimately found that the plaintiff failed to establish that the doctrine should apply. If you or a loved one suffered harm due to negligent care in a hospital, it is in your best interest to speak with a knowledgeable Syracuse hospital malpractice attorney regarding your right to pursue compensation.

Facts and Procedure of the Case

It is reported that the plaintiff’s decedent was in a coma until she died in August 2016. The plaintiff was appointed her guardian in October 2006. In August 2008, the plaintiff instituted a wrongful death and medical malpractice action against the defendant hospital, arising out of the treatment of the plaintiff’s decedent. Subsequently, in October 2016, the plaintiff began a second wrongful death and medical malpractice lawsuit against the defendant as well as two other defendants. The allegations in the second lawsuit were almost identical to those in the first. The new defendants filed a motion for summary judgment, arguing that the plaintiff’s second lawsuit was barred by the statute of limitations, which required the lawsuit to be filed within two years and six months of when the plaintiff was appointed as his decedent’s guardian. The plaintiff opposed the motion, arguing that the relation-back doctrine applied to toll the statute of limitations.

The Relation-Back Doctrine

Under the relation-back doctrine, claims against a defendant in an amended pleading relate back to claims previously asserted against a co-defendant, as long as the defendants are united in interest. Typically, it applies to cases in which a party or cause of action is added to a lawsuit, but it can also apply to cases in which separate actions are consolidated. A court evaluating whether the relation-back doctrine should apply must conduct a three-part test. First, the court must determine whether both of the claims arise out of the same conduct. Then the court must assess whether the new party is united in interest with the previous defendant so that the new party can be charged with notice of the claims against him or her. Lastly, the new defendant must know that absent a mistake on behalf of the plaintiff, he or she would have been named as a defendant earlier.

Published on: April 4, 2020

New York Court Discusses Medical Malpractice Arising out of an Involuntary Commitment

by DeFrancisco & Falgiatano

Under New York law, a person may be confined to a mental health institution against his or her will, for both the safety of the person and of other people the person may encounter. Sufficient grounds must exist to hold a person against his or her will, however, and if a hospital fails to abide by the standard of care in institutionalizing a patient, the hospital can be held liable for malpractice. This was demonstrated in a recent case filed in the United States District Court for the Southern District of New York, in which the plaintiff alleged numerous claims against the defendant hospital following his involuntary commitment, including medical malpractice claims. If you sustained damages due to a hospital’s failure to comply with the appropriate standard of care in rendering treatment, it is prudent to meet with a diligent Syracuse hospital malpractice attorney to discuss what you must do to recover damages.

Facts Regarding the Plaintiff’s Involuntary Commitment

It is reported that the plaintiff, who suffers from anxiety and diabetes, was receiving supportive services from a non-profit organization, including rental assistance and subsidies. He was mistreated on several occasions, after which he complained. Subsequently, an employee of the organization falsely accused the plaintiff of making threats of violence against him. As such, the organization called the police and asked them to transport the plaintiff to the hospital.

Allegedly, the police then took the plaintiff to the hospital, where he was involuntarily committed. He was asked if he intended to harm himself, to which he replied no. Nonetheless, he was told he would not be released unless he took certain pills. He took the pills but did not receive any other treatment. He was released the following day. He subsequently filed a lawsuit against the non-profit organization and the hospital, alleging that the hospital committed malpractice by admitting him against his will and failing to offer him proper treatment during his admission. The hospital moved to dismiss the plaintiff’s medical malpractice claims pursuant to the applicable rules of civil procedure.

Published on: March 30, 2020

Court Discusses the Grounds for Dismissing a Medical Malpractice Case in New York Via Summary Judgment

by DeFrancisco & Falgiatano

There are few things more devastating than suffering the loss of an infant prior to birth, and when the death is caused by negligent medical care, parents often wish to hold the incompetent care providers accountable. Thus, many parents of infants who lost their lives due to inadequate care choose to pursue medical malpractice claims. Even if parents have valid claims, however, their case may nonetheless be dismissed if not properly asserted or supported. A recent New York appellate court opinion in which the court affirmed the dismissal of the plaintiff’s ob-gyn case highlighted the importance of thorough and aggressive representation. If you suffered the loss of your child due to incompetent treatment by an obstetrician-gynecologist, it is in your best interest to meet with a skillful Syracuse obstetrician-gynecologist malpractice attorney to discuss what you must do to recover damages.

Factual and Procedural History of the Case

Allegedly, the plaintiff presented to the defendant hospital for treatment during her pregnancy. While she was at the defendant hospital, she underwent diagnostic tests, including a sonogram, pelvic examination, and fetal monitoring, all of which indicated that her unborn child was not in distress and that the plaintiff was not in labor. Unfortunately, however, the plaintiff’s child died prior to the plaintiff giving birth. The plaintiff proceeded to commence a medical malpractice lawsuit against the defendant, arguing that the defendant’s negligence led to her child’s demise. The defendant moved to dismiss the case via summary judgment. The court granted the defendant’s motion, after which the plaintiff appealed. On appeal, the appellate court affirmed the trial court ruling.

Grounds for Dismissing a Birth Injury Case Via Summary Judgment

On appeal, the court explained that the plaintiff’s case was dismissed due to insufficiencies in the plaintiff’s pleadings and expert affidavit. First, the court noted that the expert affidavit set forth a new theory of liability in response to the defendant’s motion for summary judgment, which was impermissible. Further, the court stated that irrespective of the new theory of liability, which was not considered, the plaintiff’s expert affidavit failed to establish that a material issue of fact existed so as to require a trial. Specifically, the plaintiff’s expert did not address the conclusions or opinions of the defendant’s expert with regards to the sufficiency of care the plaintiff received when she presented to the defendant hospital. Further, the court found that plaintiff’s expert’s opinion that the plaintiff’s child would not have died in utero if the plaintiff performed certain tests was conclusory. As such, the court found that the plaintiff’s expert failed to establish a nexus between the harm suffered and the alleged malpractice.