While it is generally imprudent to file a civil lawsuit without the assistance of an attorney, it can be an especially poor decision in a medical malpractice case, given the complexities of the issues and the strict requirements for proving a health care provider’s liability under New York law. The dangers of proceeding pro se were illustrated in a recent orthopedic malpractice case that the court dismissed due to the plaintiff’s failure to appear at numerous conferences. If you were injured due to an improperly performed orthopedic surgery, it is smart to speak to an experienced Syracuse orthopedic malpractice attorney regarding your potential claims.
Facts Regarding the Plaintiff’s Treatment
It is alleged that the plaintiff underwent shoulder surgery that was performed by the defendant orthopedic surgeon. The plaintiff alleged that he was misinformed regarding the manner in which the surgery would be performed and the potential side effects of the surgery and that the defendant performed the surgery in a negligent manner, causing the plaintiff to suffer permanent injuries and significant pain. Thus, the plaintiff filed a medical malpractice lawsuit against the defendant. The plaintiff subsequently filed a note of issue but failed to move the case forward. Additionally, the plaintiff failed to appear at two conferences scheduled by the court without explanation. As such, the court dismissed the plaintiff’s action. The plaintiff appealed, asking for his lawsuit to be restored, but the appellate court affirmed the trial court ruling.
A Court’s Discretion to Dismiss a Case Under New York Law
Pursuant to the New York Uniform Civil Rules For The Supreme Court And The County, a court has the discretion to order a dismissal of a complaint in a case where the plaintiff either fails to appear or is not ready to proceed. In the subject case, the appellate court noted that the plaintiff failed to appear at multiple conferences that were scheduled following the filing of the note of issue. Thus, the trial court properly ordered the dismissal of the plaintiff’s complaint.
The appellate court further explained that in order to be granted relief from the penalties of the failure to appear, the plaintiff had to demonstrate not only that he had a reasonable excuse for his default, but also that he could set forth a potentially meritorious cause of action. In the subject case, however, the appellate court found that the trial court properly ruled that the plaintiff failed to meet the requirements for vacating the default, as he did not produce evidence that he had a cause of action that had any potential merit. Thus, the appellate court affirmed the trial court ruling.
Speak with a Seasoned Syracuse Attorney
If you were harmed due to incompetent care rendered by an orthopedic surgeon, you should contact a seasoned Syracuse orthopedic malpractice attorney to discuss the circumstances surrounding your injuries and your potential claims. The proficient attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers possess the knowledge and resources needed to develop effective arguments on your behalf to help you strive for the best result available under the facts of your case. We can be reached via our online form or at 315-479-9000 to schedule a meeting.