Articles Posted in Medical Malpractice Law

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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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If you or someone close to you has been injured in what seems like a clear case of medical malpractice, we can help. At DeFrancisco & Falgiatano Personal Injury Lawyers, our experienced Syracuse medical malpractice attorneys can help you seek the compensation you need to put your life back together. We understand that these cases can be daunting, but you can rest assured we will try to make the process as seamless as possible for you.

“Res ipsa loquitur” is Latin for “the thing that speaks for itself.” When a case is tried on the legal theory of res ipsa loquitur, the circumstantial evidence in the case is so convincing that it removes possible causes of the patient’s injury other than the doctor’s negligence. Put another way, in situations in which a specific cause of an injury is unknown, res ipsa loquitur permits negligence to be inferred from the circumstances under which a injury took place, if the injury would not normally occur in the absence of negligence.

The doctrine may be applicable to certain medical malpractice cases, especially cases involving injuries during surgical procedures. For example, if an injury to an anesthetized patient occurs during surgery in an area remote from the operating site, res ipsa loquitur may be appropriate to establish malpractice. In such a scenario, the plaintiff would have to show that the surgeon can be presumed negligent because he or she had exclusive access to the patient’s body at that time, the injury would not have occurred in the absence of negligence, and the plaintiff did not contribute to the injury in any way. It is important to note that to rely on res ipsa loquitur, the plaintiff need not conclusively eliminate the possibility of all other causes of injury.

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If you or a loved one has been injured due to a medical professional’s error in judgment, you may be entitled to compensation for your harm. At DeFrancisco & Falgiatano Personal Injury Lawyers, our Syracuse medical malpractice attorneys have the experience and determination that is needed to handle your case. You can rest assured that we can scrutinize the facts of your case and inform you of your legal rights and options.

In New York, medical malpractice is negligence on the part of a doctor or another health care provider. Negligence is defined as a failure of the doctor or health care provider to use reasonable care under the circumstances, thereby causing injuries or death to a patient. In other words, medical malpractice occurs when a medical professional causes harm by deviating from the accepted standard of care expected in that particular situation. The standard of care will vary from case to case depending on a number of factors, such as the patient’s age and medical history.

Damages in a medical malpractice case are designed to make a victim “whole again” by providing compensation for losses. In a New York medical malpractice case, the plaintiff is typically eligible for two types of compensation:  economic and non-economic. Economic damages are awarded to compensate the injured patient for losses resulting from the defendant’s negligence. Economic damages typically include things like medical expenses, lost wages, loss of earning capacity, and rehabilitation costs. Non-economic damages, on the other hand, compensate an injured patient for losses that are intangible or harder to quantify through a dollar amount, such as pain and suffering.

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