Failure to Diagnose

Published on: July 5, 2019

Court Discusses Substitution of Parties in Medical Malpractice Cases

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 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: 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.
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Published on: May 4, 2019

Court Rules the New York Continuous Treatment Doctrine Does Not Toll the Statute of Limitations for the Failure to Diagnose

by DeFrancisco & Falgiatano

Medical malpractice cases, like any civil lawsuit, must be pursued within the time frame established by the statute of limitations. While the courts strictly construe the statute of limitations for pursuing a medical malpractice claim in New York, there are certain circumstances that allow a plaintiff to toll the statutory period, such as the continuous treatment doctrine. The United States District Court for the Northern District of New York recently held the continuous treatment doctrine does not toll the statute of limitations for a failure to diagnose, in a case in which the plaintiff who was harmed by his doctor’s failure to diagnose and treat his kidney cancer in a timely manner sought leave to amend his complaint to add additional claims. If you sustained damages due to your physician’s failure to diagnose or treat your illness, it is vital to recovery to meet with a proficient Syracuse medical malpractice attorney to discuss your case.

The Plaintiff’s Care

It is alleged that the plaintiff treated at the defendant hospital for kidney issues for several years. He began treating in 2006 when a lesion was observed on his kidney on a CT scan. Subsequent scans in 2009, 2010, and 2011, showed the lesion as well, but no diagnosis or treatment was provided for the lesion. In 2011, the plaintiff treated with a urologist who advised him to wait six months and then follow-up, and in 2012 he underwent an ultrasound that indicated the lesion was suspicious for carcinoma. He then underwent surgery to remove the lesion, which was diagnosed as renal cell carcinoma.

It is reported that the plaintiff subsequently filed a malpractice lawsuit against the hospital due to the delay in diagnosing his cancer. The plaintiff’s complaint only included the defendant’s negligent failure to diagnose his cancer from 2009 onward, as the earlier claims were precluded by the statute of limitations. The defendant then produced an expert report that stated that there was no progression of the cancer from 2009 to 2012. In response, the plaintiff filed a motion for leave to amend the complaint, to add additional negligence claims for the failure to properly diagnose his cancer from 2006 to 2009, arguing that the amendment was permitted under the continuous treatment doctrine.

Published on: April 18, 2019

Court Discusses what is Discoverable in a New York Medical Malpractice Case

by DeFrancisco & Falgiatano

Physicians must undergo years of specialized schooling before they are permitted to practice medicine. As such, we expect that they should be able to provide acceptable medical care and diagnose and treat any illness in an appropriate time frame. When a patient is harmed due to his or her physician’s failure to treat an illness facts and information regarding the patient’s treatment from the date of the initial visit through the ultimate diagnosis is essential to proving the physician’s delay in diagnosing the plaintiff constitutes malpractice. A New York appellate court recently analyzed what documents the plaintiff is permitted to request while seeking that information, in a case in which the plaintiff alleged he suffered the loss of his leg due to a delayed diagnosis. If you sustained harm because of a delayed diagnosis it is critical to speak with a seasoned Syracuse medical malpractice attorney as soon as possible to determine your options for seeking compensation.

Facts Regarding the Plaintiff’s Treatment

Allegedly, the plaintiff injured his left foot, after which he underwent surgery which was performed by the defendant. The plaintiff then suffered an ischemic injury, which resulted in the swelling, gangrene, and infection, and ultimately the loss of the plaintiff’s leg from the knee down. The plaintiff filed a medical malpractice lawsuit against the defendant, alleging his harm was caused by the defendant’s failure to manage and treat the ischemic injury. During discovery, the plaintiff filed a motion to compel the audit trail of his treatment records, which he argued was relevant to the timing and sequence of his care following his surgery. Specifically, each time the records were accessed an entry was created which included information about the plaintiff’s care. The court denied the plaintiff’s motion, after which the plaintiff appealed.

Discoverable Materials in Medical Malpractice Cases

Under New York law, any information that is material and necessary must be disclosed in a civil action, regardless of the burden of proof. This has been interpreted to mean that any facts that will narrow issues and are relevant to the underlying dispute must be disclosed. As such, necessary means helpful, not indispensable. Further, any information that is sought in good faith that may be used in support of the party’s position in a case is to be considered material. A party seeking materials must show that the request is reasonably calculated to lead to relevant evidence. In the subject case, the court found that the plaintiff met his burden of showing that the audit trail was reasonably likely to lead to relevant evidence. Further, the defendant failed to show the court that the request was improper. Thus, the court reversed the trial court order and granted the plaintiff’s motion to compel.
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Published on: March 19, 2019

New York Court Discusses Standard for Granting Summary Judgment in Medical Malpractice Cases

by DeFrancisco & Falgiatano

In medical malpractice cases, the burden shifts from the plaintiff, who must set forth evidence of the defendant’s malpractice, to the defendant, who must set forth evidence that he or she comported with the standard of care. When there is conflicting evidence the issue of whether the defendant committed malpractice is typically presented to a jury. In some cases, however, the evidence allows the court to find in favor of one party prior to a trial.

A New York appellate court recently discussed the standards for granting a motion for summary judgment in a medical malpractice case in which the court affirmed judgment in favor of the defendant. If you suffered harm because of a medical practitioner’s negligent failure to conduct necessary tests or diagnose an illness in a timely manner to ensure medical treatment, you should speak with a skilled Syracuse medical malpractice attorney regarding whether you may be able to recover damages for your harm.

The Decedent’s Treatment and Subsequent Death

Allegedly, the plaintiff’s decedent was a resident in a nursing home owned by the defendant for approximately fifteen months prior to her death in January 2012. The decedent suffered from several chronic health conditions, but her immediate cause of death was indicated as cardiopulmonary arrest caused by heart disease and atherosclerosis. Following an autopsy, the decedent’s final cause of death was determined to be aspiration pneumonia. The plaintiff then filed a lawsuit against the defendant alleging, in part, medical malpractice. Specifically, the plaintiff alleged that the defendant committed malpractice by failing to diagnose the decedent’s dysphagia, and failing to prevent or treat the decedent’s aspiration pneumonia. The defendant filed a motion for summary judgment which the trial court granted. The plaintiff subsequently appealed.

Published on: February 19, 2019

New York Court Discusses Standards for Evaluating the Sufficiency of a Medical Malpractice Expert Report

by DeFrancisco & Falgiatano

In many cases, a medical malpractice claim is only a strong as the plaintiff’s expert report. If a plaintiff’s expert cannot adequately prove that a doctor breached the standard of care, it can result in a dismissal of the plaintiff’s claim, and, therefore, results in a loss of the plaintiff’s right to recover damages.

The Appellate Division of the Supreme Court of New recently discussed the standards for evaluating the sufficiency of a plaintiff’s expert report, in a case in which the court found the plaintiff’s expert failed to show a breach of the standard of care and dismissed the plaintiff’s case. If you sustained damages due to a doctor’s failure to treat you in an appropriate manner, it is important to retain a skillful Syracuse medical malpractice attorney who will assist you in obtaining an expert that can help you show your doctor should be liable for your harm.

Facts Regarding the Plaintiff’s Treatment

Reportedly, the plaintiff was treated by the defendant, an ophthalmologist, due to pain in his right eye, trouble focusing, and a drooped eyelid. The defendant examined the plaintiff and assessed the plaintiff as suffering from glaucoma. He advised the plaintiff to return in six months, or sooner if his symptoms worsened. Six months after his treatment with the defendant, the plaintiff was diagnosed with a meningioma, a benign brain tumor, and underwent surgery. The plaintiff subsequently filed a medical malpractice claim against the defendant for failing to properly diagnose the plaintiff or recommend further testing. Following the completion of discovery, the defendant filed a motion for summary judgment, which the court granted. Plaintiff appealed.

Published on: January 29, 2019

New York Court Overturns Dismissal of Medical Malpractice Case Due to Disputed Facts

by DeFrancisco & Falgiatano

Medical malpractice cases are typically fact-intensive and whether a plaintiff’s case is successful often depends on an expert’s interpretation of the facts. In cases where the defendant seeks to have a case dismissed, the defendant must show that there is no evidence that it breached the applicable standard of care, or if it did the breach was not the cause of the plaintiff’s harm. In arguing the care provided was not negligent, however, the defendant cannot pick and choose which facts should be considered.

This was recently explained by an appellate court in New York in a case in which the court overturned a ruling dismissing the plaintiff’s claims against the defendant on the grounds that there was a factual dispute as to the care provided. If negligent medical care caused you harm, you should consult an experienced Syracuse medical malpractice attorney to analyze the facts surrounding your treatment and whether you may be able to pursue damages.

The Plaintiff’s Treatment

It is reported that the plaintiff presented to the defendant physician assistant three times over an 11 day period in 2008 with complaints of ear pain, sinus pain, and headaches. The defendant physician assistant diagnosed the plaintiff with an ear infection and sinusitis and prescribed him antibiotics. His symptoms continued to worsen and he visited the emergency department of the defendant hospital twice during the 11 day period, where he allegedly complained of a severe headache and stated he believed he had suffered a stroke.

Published on: December 28, 2018

Medical Malpractice Lawsuits Involving Multiple Myeloma

by DeFrancisco & Falgiatano

If you or someone close to you suffered from multiple myeloma and you believe that the doctor was negligent in your diagnosis or treatment, you should consider contacting a seasoned Syracuse medical malpractice attorney. At DeFrancisco & Falgiatano Personal Injury Lawyers, we are dedicated to truly understanding what happened in your case so we can guide you appropriately. We know how emotionally draining this process can be, which is why we will handle your case with the utmost compassion. Our goal is to protect your rights and resolve your case in the most fair and timely manner possible.

Multiple Myeloma

Multiple myeloma is a type of cancer that impacts the plasma cells in the blood. Plasma cells assist your body in fighting infections by creating antibodies that identify and attack germs but when a patient has multiple myeloma, the plasma cells inside the bone marrow often produce or perform abnormally. These atypical plasma cells start to divide nonstop and make more abnormal cells to the extent that they crowd out healthy blood cells. The condition is progressive and it is often deadly within three years of the diagnosis.

Published on: December 26, 2018

Malpractice Caused by Failure to Diagnose Septic Arthritis

by DeFrancisco & Falgiatano

Septic arthritis is a medical emergency that requires immediate attention. If you have lost a limb because your doctor failed to diagnose or treat septic arthritis, you may have the right to pursue compensation through a medical malpractice claim. At DeFrancisco & Falgiatano Personal Injury Lawyers, we will examine your case and help you explore possible legal remedies for your harm. With extensive experience in New York medical malpractice law, we are committed to protecting the rights of each and every one of our clients.

Septic Arthritis

Septic arthritis, also known as reactive arthritic and bacterial arthritis, is inflammation of a joint caused by infection that is not caught in a timely manner. It is caused by a number of microorganisms, including bacteria and fungus being passed through a person’s bloodstream to a joint. The most common sites for septic arthritic are the hip and knee joints. An early and accurate diagnosis coupled with emergency treatment is crucial to making sure a patient’s condition does not worsen. If untreated, the septic arthritic can spread at a rapid pace and leave lifelong damage, which can lead to the amputation of the affected limb. In the most severe cases, septic arthritis can be life threatening.