Articles Posted in Medical Malpractice Law

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The COVID-19 pandemic impacted most facets of modern life, including healthcare providers’ liability for medical malpractice. For example, laws were enacted shortly after the pandemic began to protect healthcare providers from liability with regard to certain behaviors related to the diagnosis and treatment of COVID-19. Such laws do not entirely insulate providers from liability relating to COVID-19, however, as shown by a recent New York opinion. If you or a loved one suffered harm due to negligent medical care, it is advisable to talk to a Syracuse medical malpractice lawyer as soon as possible regarding your possible claims.

The Facts of the Case

It is alleged that the decedent was a resident at the defendant nursing home. She subsequently contracted and died from COVID-19. The plaintiff, the administrator of the decedent’s estate, filed a lawsuit against the defendant asserting numerous claims, including malpractice, wrongful death, and negligence per se. The defendant moved for dismissal, arguing that the PREP Act (Public Readiness and Emergency Preparedness) rendered them immune from liability for harm caused by COVID-19.

Liability for COVID-19 Related Care

The court ultimately granted the motion with regard to the negligence per se cause of action but denied it with respect to the remainder of the claims. The court explained that the PREP Act provides immunity only for the administration or use of a countermeasure, such as a medication for a health condition or disease that constitutes a public health emergency. Continue reading

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Generally, the average judge or juror lacks medical training or an understanding of what constitutes appropriate practices and procedures in the context of medical care. As such, in the majority of medical malpractice cases, the plaintiff must produce evidence in the form of an expert opinion to support their claims. If they fail to do so, it is likely that their claims will be dismissed. This was illustrated recently in an opinion set forth by a New York court in a medical malpractice case. If you were hurt by the recklessness of a physician, you may be owed damages, and it is in your best interest to meet with a Syracuse medical malpractice lawyer to avoid waiving your rights.

The History of the Case

It is reported that the plaintiff, acting pro se, filed a medical malpractice and lack of informed consent case against the defendant in federal court. The case arose out of complications following a cosmetic procedure that the plaintiff alleged was improperly performed. Following discovery, the defendant moved for summary judgment on the grounds that the plaintiff’s claims lacked evidentiary support in the form of an expert opinion. The court agreed and granted the defendant’s motion. The plaintiff appealed.

Expert Evidence in New York Medical Malpractice Cases

On appeal, the court affirmed the trial court ruling. The court explained that pursuant to New York law, except in rare cases, a plaintiff must set forth expert testimony showing that there was a deviation from the accepted standards of the practice of medication and that such deviation proximately caused the plaintiff’s harm in order to establish a prima facie case of medical malpractice. In other words, unless the act that allegedly constitutes malpractice falls within the understanding of the jury, expert testimony is required. Continue reading

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In New York, it is not uncommon for a person to receive medical care in a facility owned by a municipality. Doctors that work for municipalities, like other physicians, can make harmful mistakes, and while parties can seek compensation from municipalities via medical malpractice suits, they must comply with certain notice requirements to protect their claims. Recently, a New York court issued an opinion warning of the consequences of failing to comply with notice requirements in cases against municipalities, in a matter in which it ultimately dismissed the plaintiff’s claims. If you were hurt by incompetent medical care in a municipal facility, it is smart to speak to a Syracuse medical malpractice lawyer regarding what you must do to protect your rights.

The Plaintiff’s Harm

It is reported that the plaintiff entered a municipally owned facility, and during her admission process, advised the defendant nurse that she was prescribed numerous medications that she must continue to take to maintain her health. She was administered some, but not all, of her medications. She later met with the defendant psychiatrist and advised she felt a manic episode coming on.

Allegedly, she was not provided the psychiatric medication she needed to manage her symptoms regardless of her requests. She subsequently filed a lawsuit against the defendants and other parties, asserting numerous claims. The defendants moved for dismissal, while the plaintiff moved for permission to amend her complaint to add medical malpractice claims against the defendants. The defendants opposed the plaintiff’s motion. Continue reading

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Medical malpractice cases are typically complex and require the retention of multiple experts, extensive discovery, analysis of complicated issues, and understanding of statutes and procedural rules. As such, while some people may be tempted to pursue such claims without the assistance of an attorney, it is generally ill-advised, as they make commit errors that could result in the dismissal of their case. This was explained in a recent New York matter in which the court dismissed the plaintiff’s medical malpractice lawsuit due to his failure to pursue his claims in the proper manner. If you sustained damages due to negligent treatment from a health care provider, it is in your best interest to speak to a Syracuse medical malpractice lawyer about your options for seeking damages.

The Procedural History of the Case

It is reported that the plaintiff treated with the defendant doctors due to issues with his back. He ultimately underwent spinal surgery, which was performed by the defendants. He subsequently suffered unspecified complications. As such, he filed a pro se lawsuit against the defendants in federal court, asserting negligence per se and medical malpractice claims. The defendants moved to dismiss the plaintiff’s claims pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that the court lacked subject matter jurisdiction over the case. After a review of the pleadings, the court granted the defendants’ motion.

Jurisdiction over Medical Malpractice Claims

The court explained that while the plaintiff, as a pro se litigant, was entitled to special consideration and would be held to less stringent standards than parties represented by attorneys, his claims must nonetheless be dismissed. The court noted that pursuant to Article III of the United States Constitution, federal courts may exercise limited jurisdiction. Specifically, they can wield subject matter jurisdiction over claims that present federal questions, which are those in which a colorable claim arises under the Constitution, treaties, or laws of the United States. Continue reading

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In many instances in which a person dies due to a devastating medical issue, the person’s loved ones will pursue medical malpractice claims. Simply because a person dies due to the sudden progression of an illness does not necessarily mean that malpractice has occurred, however, and even in cases involving death, a plaintiff must nonetheless produce evidence sufficient to prove liability. This was illustrated in a recent medical malpractice case in New York in which the plaintiff’s medical malpractice and wrongful death claims were dismissed due to a lack of evidence that the defendants breached the standard of care. If you lost a loved one due to negligent medical care, it is prudent to speak to a Syracuse medical malpractice attorney to discuss your possible claims.

Facts of the Case

It is reported that the plaintiff’s decedent sought treatment for back pain on three occasions in January 2012. First, he visited his primary care physician with complaints of extreme back pain and was directed to visit the emergency room. He then went to the defendant medical center, where he was examined by the defendant doctor, who ruled out an aneurysm or tracheal deviation. Two days later, he returned to the defendant primary care physician and was directed to undergo an MRI. Following the MRI, he was directed to go to the emergency room.

Allegedly, the decedent then visited the defendant hospital, where he was diagnosed with an epidural abscess. Soon after, he became paralyzed from the waist down and ultimately died due to respiratory failure. The plaintiff filed a medical malpractice lawsuit against each of the treating providers, who, in turn, filed motions for summary judgment. The court largely granted the motions, and the plaintiff appealed.

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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.

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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.

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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.

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If you or someone close to you has been injured due to a medical professional’s negligence, you need to consult a seasoned Syracuse medical malpractice attorney right away. At DeFrancisco & Falgiatano Personal Injury Lawyers, we have helped many New York clients obtain a fair outcome in their case and can help you as well.

In Clark v. Loftus, the plaintiff commenced a medical malpractice action as a result of complications after a surgical procedure performed by the defendant doctor. At trial, plaintiff and defendants presented contradictory expert testimony regarding the defendant’s alleged negligence. The Supreme Court of the State of New York provided the jury instructions on the doctrine of res ipsa loquitor. “Res ipsa loquitur” is latin for “the thing that speaks for itself.” When a case is tried under the theory of res ipsa loquitur, the circumstantial evidence in the case is so strong that it eliminates other possible causes of the patient’s injury other than the defendant’s negligence.

The jury returned a verdict in favor of the defendant and the plaintiff moved to set aside the verdict as against the weight of the evidence for a new trial. In other words, the plaintiff sought judgment notwithstanding the verdict. The court granted the plaintiff’s motion, reasoning that the verdict was against the weight of the evidence and directed a new trial on the issue of negligence, including the doctrine of res ipsa loquitur. The appellate court reversed the order and reinstated the verdict.

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In the vast majority of cases, the key to surviving cancer is early detection, diagnosis and treatment. Unfortunately, doctors sometimes miss a cancer diagnosis and deprive patients the chance to beat the disease. If you have suffered or lost a loved one because of a doctor’s failure to diagnose cancer, you need to reach out to a reputable Syracuse medical malpractice attorney without delay. At DeFrancisco & Falgiatano Personal Injury Lawyers,

Earlier this month, New York Governor Andrew Cuomo signed into law a bill that extends the statute of limitations for cancer-related malpractice lawsuits. Put another way, the bill would extend the amount of time in which a patient can file a medical malpractice lawsuit for a missed cancer diagnosis. Referred to as ‘Lavern’s law,’ the bill gives patients a two-and-a-half year time frame to file a malpractice claim from when they discover a mistake or a missed misdiagnosis involving cancer. Currently, the clock starts when the mistake is made as opposed to when it is discovered, This means patients often lose their chance to sue even before they discover there has been a mistake.

The law is is named after Lavern Wilkinson, a woman from the Bronx who died in 2013 at age 41 after doctors failed to detect that she had a curable form of lung cancer. It is important to note that the bill would offer a window for cases going back seven years. The changes only apply to cancer cases and not other illnesses. The bill, unsurprisingly, was strongly opposed by physicians and hospitals who believe that the measure will only inflate the cost of liability insurance.

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