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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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Primary care physicians provide patients with generalized care for a variety of conditions, including chronic pain. While opioid painkillers can provide essential relief to many people with chronic pain, they must be administered with caution and patients taking opioids must be carefully monitored, to prevent abuse and diversion. If a physician negligently fails to use proper care when prescribing opioid painkillers, he or she may be held liable for any harm the patient suffers as a result, as demonstrated in a recent case ruled upon by the Appellate Division of the Supreme Court of New York. If you or a loved one sustained damages due to pain medication that was inappropriately prescribed by your primary care physician, it is advisable to meet with a skillful Syracuse medical malpractice attorney to discuss your options for seeking recourse for your injuries.

Facts of the Case

It is alleged that the plaintiff’s decedent was involved in a car accident in 2007, in which she injured her left shoulder. She subsequently underwent surgery for her shoulder and was prescribed narcotic pain medication. She then began repeatedly requesting pain medication, but she was denied. The plaintiff’s decedent underwent additional surgery and was again prescribed pain medication by her orthopedic surgeon. She admitted that she was taking her medication in greater quantities and more frequently than prescribed. She requested additional medication, but her request was denied, and she was advised she would not receive any more medication.

It is reported that the plaintiff’s decedent then treated with another doctor, who noted that plaintiff’s decedent had track marks on her arm and diagnosed her with an opioid dependency, and a second doctor, who discharged her from his practice for using cocaine. The decedent then began treating with the defendant. She advised the defendant that she received pain medication from her orthopedic doctor, but she was looking for a local doctor. The defendant prescribed the decedent high-dose Oxycontin and Xanax. He never lowered her dosage or contacted the decedent’s orthopedic doctor. The decedent died of acute intoxication of fentanyl, heroin, Oxycontin, and Xanax.

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In many cases in which a person is injured by inadequate medical care there will be more than one entity or care provider liable for his or her harm. For example, hospitals can be held accountable for harm caused by a resident due to an improperly performed procedure. Recently, the appellate division of the Supreme Court of New York analyzed when a hospital may be deemed liable for the negligent care provided by a surgical resident. If you suffered harm due to the negligence of a hospital or any other care provider, it is essential to consult an experienced Syracuse hospital malpractice attorney regarding what you must prove to hold the hospital liable for your injuries.

Factual Background

It is alleged that the plaintiff underwent an attempted lumbar fusion surgery at the defendant hospital. The vascular part of the surgery was performed by the defendant surgeon, who was assisted by a resident. Early on in the procedure, the defendant surgeon encountered problems with the plaintiff’s iliac veins, which began profusely bleeding. The defendant surgeon attempted to repair the veins, which lead to increased tearing and blood loss. The plaintiff was then hospitalized for several months while he recovered. He then filed a medical malpractice lawsuit against the defendants. The defendants filed a motion for summary judgment. The trial court granted the motion, after which the plaintiff appealed.

A Hospital’s Liability for a Resident’s Negligence

On appeal, the court held, in part, that the hospital met its burden of proof by showing that the resident it agreed to hold harmless and defend did not exercise any independent judgment during the surgery. The court noted that, under New York law, a resident who aids a doctor during a medical procedure cannot be held liable for medical malpractice if the resident did not exercise any independent medical judgment, unless the doctor’s directions so greatly deviated from the standard of care the resident was obligated to intervene. Continue reading

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In most New York medical malpractice cases, the plaintiff will request a trial by a jury of his or her peers. Thus, if the case proceeds to trial, the jury will determine issues of fact and credibility, and render a verdict based on its assessment. Although jury trials are an essential part of our country’s civil litigation process, in some instances a jury issues a verdict that is against the weight of the evidence. In such cases, there are procedures in place that allow parties to seek recourse for verdicts they deem unfounded. A New York appellate court recently discussed the basis for setting aside the verdict in a surgical malpractice case. If you were injured by surgical malpractice it is important to engage an assertive Syracuse surgical malpractice attorney who will aggressively advocate on your behalf throughout each stage of your case.

Factual Background of the Case

Allegedly, the decedent was admitted to the defendant medical center to undergo a hip replacement. Following the surgery, she developed gastrointestinal bleeding. She subsequently died due to cardiac and respiratory arrest as a result of the bleeding. The plaintiff, the executor of the decedent’s estate, filed a surgical malpractice lawsuit against the defendant surgeon. The plaintiff also asserted a vicarious liability claim against the defendant medical center, alleging it was liable for the actions of the defendant surgeon. Following a trial, the jury found in favor of the defendant. The plaintiff filed a motion to set aside the verdict, arguing that it was against the weight of the evidence. The court denied the plaintiff’s motion, after which he appealed.

Setting Aside a Jury Verdict as Against the Weight of the Evidence

Under New York law, a court may not disregard a jury’s verdict as against the weight of the evidence, unless the evidence is so heavily in favor of the party asking the verdict to be set aside that the verdict could not have been reached by a fair interpretation of the evidence. Here, the court noted that in a medical malpractice case, the plaintiff has the burden of proving that it is more likely than not that the defendant deviated from the accepted standard of care, and that the deviation proximately caused the plaintiff’s alleged harm. Further, the court stated that hospitals and medical centers can be held vicariously liable for the negligence of their employees. Continue reading

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New York medical malpractice cases typically hinge on the sufficiency of each party’s expert testimony. If a party fails to provide an expert report, or his or her expert reports are deemed inadmissible, it can have a devastating effect on the party’s position. In a recent OB-GYN malpractice case in which the plaintiff alleged her child suffered harm due to negligent pre-natal care, the  Appellate Division of the Supreme Court of New York addressed the impact of orders limiting the admissibility of evidence on both parties. If your child suffered an injury due to inadequate medical care during your pregnancy it is essential to meet with a capable Syracuse OB-GYN malpractice attorney to discuss the facts of your case and to develop a plan for seeking damages for your child’s harm.

Factual Background

Allegedly, the plaintiff mother began suffering pregnancy complications, including bleeding and leaking fluid, when she was twenty-five weeks pregnant. She was referred to the defendant obstetrician-gynecologist, who examined her and scheduled a follow-up appointment. Prior to the next appointment, the plaintiff mother once again began bleeding and therefore went to the emergency room. She was subsequently transferred to another hospital, where she went into labor. Because the plaintiff infant was in a breech position, he was delivered via a cesarean section.

Reportedly, the plaintiff mother was twenty-eight weeks pregnant at the time of the plaintiff infant’s birth. The plaintiff infant was diagnosed with cerebral palsy. The plaintiffs subsequently filed a lawsuit against the defendant obstetrician gynecologist, alleging his malpractice caused the plaintiff infant to suffer severe and permanent injuries. The defendant filed a motion for summary judgment, which the court denied, finding there were triable issues of fact. The defendant then filed a motion to deem the plaintiff’s expert witnesses’ testimony inadmissible. The court denied that motion and the defendant appealed.

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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.

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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.

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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.

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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.

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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.

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