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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.

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In some instances, while it is evident that a person suffered harm due to inadequate medical care, the identity of each physician that provided incompetent care will not immediately be clear. Although a plaintiff seeking damages in a medical malpractice lawsuit can add additional defendants after the lawsuit is filed, he or she generally must do so within the statute of limitations. There are some exceptions, however, such as when the relation-back doctrine applies. In a recent primary care malpractice case, a New York appellate court discussed the elements a plaintiff must prove for the relation-doctrine to apply. If you suffered damages due to negligent care from your primary care physician, it is advisable to consult a trusted Syracuse primary care malpractice attorney regarding your harm.

Factual Background

Allegedly, the plaintiff’s decedent presented to her primary care physician’s office for outpatient care, following a diagnosis of ulcerative colitis. During her visit, she was treated by the defendant physician. She was admitted to the hospital the day after her visit, for complications due to her colitis. She returned to her primary care physician’s office a month after she was discharged from the hospital and was treated by a non-party physician employed by the defendant physician. Shortly thereafter, she returned to the hospital, where it was revealed that she had a gangrenous and perforated colon. She died one week later.

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant. After conducting the depositions of the defendant and the non-party physician, the plaintiff moved to add the non-party physician as a defendant. The court granted the plaintiff’s motion, and the defendant appealed, arguing that the statute of limitations barred any additional claims.

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In many instances in which a person undergoes a surgical procedure, there are numerous physicians taking part in the surgery. Thus, there may be multiple physicians who may ultimately be held liable for a patient’s injuries if an error is committed during surgery. In a recent New York surgical malpractice case, the court assessed whether a supervising physician could be held liable for medical malpractice for errors committed during the surgery and, if so, the basis for imposing liability. If you or a loved one sustained injuries due to a negligently performed surgery, it is prudent to speak with a dedicated Syracuse surgical malpractice attorney regarding your potential claims.

Facts of the Case

It is reported that the plaintiff underwent bariatric surgery to reduce the size of her stomach. The surgery was performed by the defendant bariatric surgeon, a second defendant surgeon, the defendant anesthesiologist, and the defendant nurse anesthetist. During the course of the surgery, two surgical instruments were stapled to the plaintiff’s stomach, which required a dissection and repair. The plaintiff then filed a medical malpractice action against the defendants. The defendant anesthesiologist moved for summary judgment. The court denied the motion, finding that as the supervising anesthesiologist, he maintained responsibility for the anesthesia care team. The defendant appealed.

A Supervising Physician’s Liability for Medical Malpractice

On appeal the defendant argued, in part, that per his usual practice as the supervising anesthesiologist, he was present when the plaintiff was placed under anesthesia and when her breathing tube was placed, he was not present for the placement or removal of either of the instruments that were stapled to the plaintiff’s stomach. Moreover, he argued that the placement or removal of those instruments did not constitute key elements of the surgical procedural, that required supervision, but that the stapling of the instruments was solely a surgical complication. Lastly, he argued there was no relationship between his alleged failure to supervise the rest of the anesthesia team and the plaintiff’s injuries.

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Medical malpractice cases often hinge on the sufficiency of each party’s expert affidavit. In other words, if the defendant produces expert testimony demonstrating that he or she did not depart from the standard of care, and the plaintiff fails to produce an affidavit that disputes the defendant’s expert’s assertions, the case may be dismissed. A New York appellate court recently discussed the factors considered in determining whether a plaintiff’s expert affidavit is insufficient to prevent dismissal or merely indicates issues that need to be resolved with regards to credibility, in an emergency room malpractice case. If you or a loved one suffered injuries due to inadequate care provided in an emergency room, it is wise to consult a trusted Syracuse emergency room malpractice attorney to discuss your case.

Facts Regarding the Plaintiff’s Harm

It is alleged that the plaintiff’s decedent was involved in a motor vehicle collision, after which she was removed from her vehicle and transported via ambulance to a nearby high school, where she was then picked up by a helicopter and transferred to the defendant medical center. At the defendant center, she was assessed by the trauma team, and it was determined she was suffering from pericardial tamponade. She was then transferred to an operating room but suffered a cardiac arrest during her transport.

Reportedly, the defendant surgeon performed a thoracotomy and repaired a tear in her atrium while members of the team performed CPR, but the efforts to restore a natural rhythm to the decedent’s heart failed, and she died. The plaintiff commenced a lawsuit against the defendant medical center, and defendant surgeon, alleging medical malpractice. The defendants filed a motion for summary judgment, which was denied. The defendants then appealed.

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Typically, courts aim to assess medical malpractice cases based on their merit. In other words, the courts will determine if either party has presented sufficient evidence in support of their position to obtain a judgment as a matter of law, or if the case should proceed to trial. In some instances, however, a court will grant a default judgment in favor of the plaintiff based on the defendant’s failure to comply with procedural requirements.  Recently, a New York appellate court assessed when a default judgment should be entered against a defendant for failing to respond to a plaintiff’s complaint in a hospital malpractice case. If you were harmed by negligent care you received in a hospital, it is advisable to meet with a proficient Syracuse hospital malpractice attorney regarding your potential causes of action.

Procedural History of the Case

It is reported that the plaintiff was struck by a vehicle, which required her to undergo bilateral leg amputations. She filed a lawsuit against the defendant driver, and five years later, amended the complaint to assert medical malpractice claims against the defendant hospital where she underwent her amputations and the defendant surgeons who participated in her amputation. Each of the defendants was served, and the defendant hospital and first defendant surgeon filed motions to dismiss. The second defendant surgeon did not respond. The court granted the defendant hospital and first surgeon’s motions to dismiss. The defendant hospital then moved to reargue that the claim against the second surgeon should be dismissed, and the plaintiff filed a cross-motion to enter a default judgment against the second surgeon. The court granted the plaintiff’s motion, and the defendant hospital appealed. Additionally, the second surgeon filed a motion to vacate the judgment due to an excusable delay.

Grounds for Entering a Default Judgment

On appeal, the court noted that the defendant hospital employed the second surgeon at the time of the alleged harm, and therefore found that the hospital had standing to seek vacatur of the order granting default judgment. The court went on to explain that a defendant seeking to vacate a default granted for the failure to answer or appear must demonstrate a valid excuse for the default and a defense to the action that is potentially meritorious. Whether an excuse for a failure to respond is reasonable lies within the discretion of the court. Factors considered in determining whether an excuse is reasonable include the duration of the delay, whether there was prejudice to the opposing party, the public policy in favor of resolving a case on the merits, and whether the defendant acted willfully.

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In all medical malpractice cases filed in New York, the burden of proof is transferred from the plaintiff to the defendant and then back to the plaintiff. In other words, the plaintiff must delineate the alleged malpractice committed by the defendant via a bill of particulars. In turn, if the defendant wishes to have the case dismissed, he or she must refute each allegation in the bill of particulars with an expert report. In a recent case before a New York appellate court, the court explained what constitutes an expert report sufficient to obtain a dismissal in a hospital malpractice case. If you suffered damages during or after your admission to a hospital due to incompetent medical care, it is prudent to speak with a reliable Syracuse hospital malpractice attorney to discuss what compensation you may be able to pursue.

Factual Background

It is reported that the decedent underwent a procedure at the defendant hospital during which a stent was placed in his esophagus. The following day, he was discharged and directed to follow-up with his primary care physician if he suffered certain symptoms. The decedent died five days later. The plaintiff then filed a medical malpractice lawsuit against the hospital and physician who performed the procedure, in which she alleged negligence during the procedure and in the post-discharge care of the decedent. The defendants filed a motion for summary judgment, which was granted with exception to the claims regarding post-discharge care. The defendants appealed.

Sufficiency of Defense Expert Reports in Medical Malpractice Cases

In a medical malpractice case, a defendant seeking dismissal of the plaintiff’s claims via summary judgment must establish either that he or she did not deviate from the standard of care or that any deviation did not cause the plaintiff’s alleged harm. In order to sustain this burden, the defendant must rebut and address each specific allegation of malpractice that is set forth in the plaintiff’s bill of particulars.

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While in some cases, a patient’s symptoms are straightforward, and the cause of the symptoms are easily ascertainable, in other instances, the journey to an accurate diagnosis can be lengthy. Simply because a patient does not immediately receive a correct diagnosis does not indicate that malpractice is present, however. Instead, in some cases, it may simply take longer to determine what illness is afflicting a patient. Recently, a New York appellate court discussed the evaluation of malpractice claims arising out of delayed diagnoses in a case in which it took several months for a plaintiff to receive a cancer diagnosis. If you were injured by a delay in receiving an accurate diagnosis, you should consult a capable Syracuse medical malpractice attorney regarding your possible claims.

Factual Background

It is reported that the plaintiff’s decedent presented to the defendant primary care physician with complaints of puffy eyes and nasal congestion. He was treated and sent home. A month later, the decedent called the defendant primary care physician and advised he was having difficulty swallowing, after which she referred him to a gastroenterologist. She did not order any other tests. The decedent ultimately underwent diagnostic imaging, which revealed that he had a mass in his chest. The defendant oncologist ultimately diagnosed the plaintiff with a form of lymphoma. After  the decedent’s death, the plaintiff filed a medical malpractice lawsuit against the defendants, arguing that their failure to diagnose the decedent in a timely manner caused the decedent’s harm. The defendants each filed motions for summary judgment, which the court granted in part. The plaintiff appealed.

Medical Malpractice Arising Out of a Delayed Diagnosis

With regard to the claims against the defendant primary care physician, the court noted that the defendant established via her expert report that the treatment she provided the decedent with on the date of his initial visit complied with the standard of care. In return, the plaintiff’s expert failed to raise a triable issue of material fact regarding whether the defendant deviated from the standard of care. Thus, the court affirmed the order granting summary judgment with regard to that issue.

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Not all medical malpractice cases arise out of bodily harm; rather, in some instances, a medical malpractice case will arise out of the alleged breach of patient-doctor confidentiality. Regardless of the harm alleged, however, it is critical for the plaintiff to prove he or she suffered actual damages. This was explained in a recent primary care malpractice case in which the court found that a genuine issue of fact existed as to whether the defendant harmed the plaintiff, precluding dismissal via summary judgment. If you sustained damages due to a negligent primary care physician, it is wise to speak with a skillful Syracuse primary care malpractice attorney to discuss your potential damages.

Factual Background

It is reported that the plaintiff, who worked as a schoolteacher, began suffering from respiratory issues while at work. She attempted numerous treatments, but her symptoms persisted. Approximately a year later, the superintendent of the school district that employed the plaintiff asked the defendant primary care physician to examine the plaintiff pursuant to Education Law 913 to determine if the plaintiff was able to perform her job duties. The defendant examined the plaintiff and then sent a report of his findings to the superintendent.

Allegedly, the defendant annexed medical records from other providers that he received from the plaintiff to the report. The plaintiff then filed a medical malpractice lawsuit against the defendant, alleging he violated patient-doctor confidentiality by disclosing the records she provided to him. The defendant filed a motion for summary judgment, which the trial court denied. The defendant then appealed.

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In all but the clearest of cases, a plaintiff alleging he or she suffered harm due to medical malpractice must retain an expert who will testify as to the manner in which the defendant healthcare provider caused the plaintiff’s harm. Similarly, the defendant must produce an expert report, refuting the plaintiff’s allegations. If either party fails to produce an adequate expert report, it may adversely affect their position in the case. This was demonstrated in a recent nursing malpractice case decided by a court in the Appellate Division of the Supreme Court of New York, in which the court dismissed the plaintiff’s claims due to the speculative nature of the plaintiff’s expert report. If you or a loved one suffered harm due to negligent care provided in a nursing facility, it is in your best interest to meet with a trusted Syracuse nursing malpractice attorney who will zealously pursue an outcome in your favor.

Facts of the Case

It is reported that the plaintiff’s decedent was admitted to the defendant rehabilitation and nursing center. During his admission, he received intravenous antibiotic therapy. He ultimately fell ill and died. The plaintiff then filed a medical malpractice lawsuit against the defendant center and defendant nurse, alleging they were negligent in failing to manage the decedent’s care properly and in failing to transfer him to a hospital for treatment. After discovery was completed, the defendants filed individual motions for summary judgment. The trial court denied the defendants’ motions, and the defendants appealed. On appeal, the court reversed the trial court ruling and granted the defendants’ motions, dismissing the plaintiff’s claims.

Requirements of Expert Affirmations

It is axiomatic that in a New York medical malpractice, the plaintiff must establish that the defendant deviated from the standard of care accepted in the community in which the defendant practices and that the deviation proximately caused the plaintiff to suffer harm. If the defendant demonstrates via an expert affidavit that there is no issue of material fact as to either element, the plaintiff’s claims should be dismissed unless the plaintiff is able to establish a triable issue of fact in opposition to the defendant’s expert report.

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In any medical malpractice case filed in New York, the plaintiff must set forth a bill of particulars establishing the manner in which the defendant’s care caused the plaintiff’s harm. In turn, if the defendant rebuts the specific allegations in the plaintiff’s bill of particulars, thereby sufficiently showing that he or she did not cause the plaintiff’s harm, the plaintiff’s claims against the defendant may be dismissed. The plaintiff can avoid dismissal, however, by demonstrating that there are factual issues that need to be resolved via trial. Recently, the Supreme Court, Appellate Division, Second Department, New York, discussed what constitutes sufficient evidence of an issue of fact to withstand a dismissal in a case in which the plaintiff alleged he was harmed by neurology malpractice. If you sustained damages due to negligent care provided by a neurologist, it is critical to engage a Syracuse neurology malpractice attorney who will fight diligently on your behalf.

Facts Regarding the Plaintiff’s Treatment and Procedural History

It is reported that the plaintiff suffered a fistula of a spinal artery, after which he was admitted to the defendant hospital, where he underwent diagnostic testing. Following the test, he experienced weakness in his left leg. He then underwent a surgical procedure to repair the fistula. The plaintiff ultimately filed a medical malpractice lawsuit against the practitioners who performed the diagnostic test and surgery and the hospital, arguing that the procedures were performed negligently, causing him to suffer neurological harm.

It is alleged that the plaintiff set forth a bill of particulars with broad allegations regarding the negligent acts and omissions of the hospital and physicians, and alleged that as a result of their malpractice he suffered neurological damages, which affected the function of his legs, bowel, and bladder. The plaintiff discontinued the action against the individual defendants, leaving only his claims against the hospital. The hospital then filed a motion for summary judgment, which the trial court granted. The plaintiff appealed.

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