Medical Malpractice

Published on: March 27, 2020

New York Court Discusses Relation-Back Doctrine in Medical Malpractice Cases

In some instances, while it is evident that a person suffered harm due to inadequate medical care, the identity of each physician that provided incompetent care will not immediately be clear. Although a plaintiff seeking damages in a medical malpractice lawsuit can add additional defendants after the lawsuit is filed, he or she generally must do so within the statute of limitations. There are some exceptions, however, such as when the relation-back doctrine applies. In a recent primary care malpractice case, a New York appellate court discussed the elements a plaintiff must prove for the relation-doctrine to apply. If you suffered damages due to negligent care from your primary care physician, it is advisable to consult a trusted Syracuse primary care malpractice attorney regarding your harm.

Factual Background

Allegedly, the plaintiff’s decedent presented to her primary care physician’s office for outpatient care, following a diagnosis of ulcerative colitis. During her visit, she was treated by the defendant physician. She was admitted to the hospital the day after her visit, for complications due to her colitis. She returned to her primary care physician’s office a month after she was discharged from the hospital and was treated by a non-party physician employed by the defendant physician. Shortly thereafter, she returned to the hospital, where it was revealed that she had a gangrenous and perforated colon. She died one week later.

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant. After conducting the depositions of the defendant and the non-party physician, the plaintiff moved to add the non-party physician as a defendant. The court granted the plaintiff’s motion, and the defendant appealed, arguing that the statute of limitations barred any additional claims.

Published on: February 28, 2020

New York Court Discusses Sufficiency of Defense Expert Reports in Medical Malpractice Cases

by DeFrancisco & Falgiatano

In all medical malpractice cases filed in New York, the burden of proof is transferred from the plaintiff to the defendant and then back to the plaintiff. In other words, the plaintiff must delineate the alleged malpractice committed by the defendant via a bill of particulars. In turn, if the defendant wishes to have the case dismissed, he or she must refute each allegation in the bill of particulars with an expert report. In a recent case before a New York appellate court, the court explained what constitutes an expert report sufficient to obtain a dismissal in a hospital malpractice case. If you suffered damages during or after your admission to a hospital due to incompetent medical care, it is prudent to speak with a reliable Syracuse hospital malpractice attorney to discuss what compensation you may be able to pursue.

Factual Background

It is reported that the decedent underwent a procedure at the defendant hospital during which a stent was placed in his esophagus. The following day, he was discharged and directed to follow-up with his primary care physician if he suffered certain symptoms. The decedent died five days later. The plaintiff then filed a medical malpractice lawsuit against the hospital and physician who performed the procedure, in which she alleged negligence during the procedure and in the post-discharge care of the decedent. The defendants filed a motion for summary judgment, which was granted with exception to the claims regarding post-discharge care. The defendants appealed.

Sufficiency of Defense Expert Reports in Medical Malpractice Cases

In a medical malpractice case, a defendant seeking dismissal of the plaintiff’s claims via summary judgment must establish either that he or she did not deviate from the standard of care or that any deviation did not cause the plaintiff’s alleged harm. In order to sustain this burden, the defendant must rebut and address each specific allegation of malpractice that is set forth in the plaintiff’s bill of particulars.

Published on: December 16, 2019

Recent New York Medical Malpractice Case Highlights Risks of Proceeding Without an Attorney

by DeFrancisco & Falgiatano

While in some legal matters, a person may be tempted to proceed without a lawyer, medical malpractice cases are complex and involve a juxtaposition of medical and legal issues. Thus, it generally is in the best interest of a person seeking to recover damages in a medical malpractice case to be represented by an attorney. This was demonstrated in a recent medical malpractice case arising out of the United States District Court for the Northern District of New York, in which the plaintiff proceeded pro se, and many of his claims were dismissed. If you sustained injuries due to a negligent care provider, it is wise to engage an experienced Syracuse medical malpractice attorney to assist you in your pursuit of damages.

Facts Surrounding the Plaintiff’s Alleged Harm

It is reported that the plaintiff treated with the defendant physicians at the defendant mental health center. During a treatment appointment, he requested that a student physician leave the room, and the doctor refused. The plaintiff attempted to file a grievance against the doctor but was asked to return on a later date. When he returned, he was questioned by the first doctor who was named as a defendant as to whether he had ever been admitted as an inpatient. Later that day, the plaintiff was picked up by the police and involuntarily committed to the defendant mental health center with diagnoses of delusional disorder and schizophrenia.

Allegedly, on the day after the plaintiff was admitted, the second doctor who was named as a defendant mocked him and told him he would be admitted for weeks. The plaintiff produced multiple forms of identification and proof that he was not delusional, but was not released for a week. Following his release, he filed a lawsuit asserting numerous claims against the defendants, including medical malpractice claims arising out of fraud and negligence. The defendants moved to dismiss the plaintiff’s claims.

Published on: December 9, 2019

New York Court Differentiates Ordinary Negligence and Medical Malpractice Claims

by DeFrancisco & Falgiatano

In any civil lawsuit, it is essential for the plaintiff to assert the proper claims against the defendant, and the failure to do so can result in the dismissal of a case. For example, while negligence and medical malpractice claims bear many similarities, there are key distinctions between the two causes of action, and it is important for anyone seeking damages from a medical provider to ensure they are asserting the correct claim. This was evidenced in a recent case decided by a New York appellate court, in which the court reviewed the dismissal of the plaintiff’s negligence claim against a hospital due to the fact that her complaint sounded in medical malpractice. If you were harmed by negligent care rendered in a hospital, it is critical to retain a seasoned Syracuse hospital malpractice attorney to assist you in pursuing the appropriate claims for your harm.

Facts and Procedural Background of the Case

It is reported that the plaintiff donated blood at the defendant hospital’s blood donation center. After making her donation, she lost consciousness and fell and sustained injuries. She then filed a lawsuit against the defendant, asserting a negligence claim. Specifically, she alleged the defendant was negligent for failing to follow protocols for diminishing reactions in blood donors, failing to screen for health problems and obtain a thorough medical history, and failing to provide a medical examination before drawing blood.

It is alleged that the defendant filed a motion to dismiss, asserting the plaintiff’s complaint set forth a medical malpractice claim, but the plaintiff failed to file the required certificate of merit. The plaintiff argued that no certificate of merit was required because the allegations in her complaint merely asserted a negligence claim, not a malpractice claim. The court denied the defendant’s motion, and the defendant appealed.

Published on: November 12, 2019

New York District Court Explains Grounds for Granting a New Trial in a Podiatry Malpractice Case

by DeFrancisco & Falgiatano

The law provides many safeguards that a plaintiff in a medical malpractice case can use to remedy results that are perceived to be unjust. For example, even if a judge or jury finds in favor of a defendant, a plaintiff in a malpractice case has the right to seek a new trial. A new trial will only be granted in certain circumstances, however, as recently explained by the United States District Court for the Northern District of New York, in a case arising out of an alleged failure to obtain informed consent and other deviations from the standard of care during a foot surgery. If you suffered damages due to inadequate care provided by a podiatrist, you can consult with a capable Syracuse podiatry malpractice attorney regarding the compensation that you may be able to recover for your harm.

Factual and Procedural Background

The plaintiff filed a medical malpractice case against the defendant podiatrist, alleging that the defendant failed to obtain the plaintiff’s informed consent prior to a surgical procedure and that the defendant deviated from the applicable standard of care. Following a trial, the jury found in favor of the defendant. The plaintiff subsequently filed a motion for a new trial.

The Standard for Granting a New Trial

Under federal law, a new trial will only be granted if the verdict rendered by the jury or judge is against the clear weight of the evidence, the trial court acted unfairly, significant evidentiary errors occurred, the jury received improper or inadequate instructions, or the judge or jury awarded excessive damages. Thus, a new trial is only warranted in cases in which it is necessary to rectify a miscarriage of justice or a clearly erroneous result, after reviewing all the evidence of record. In other words, courts are not granted the discretion to reevaluate the evidence and vacate a jury’s verdict merely because a reasonable jury could have come to a different conclusion under the facts of the case, or because the judge believes taht another result was justified.

Published on: September 30, 2019

New York Court Discusses Effects of Failure to Comply with Procedure in a Medical Malpractice Case

by DeFrancisco & Falgiatano

If a person dies due to medical malpractice, the administrator of the person’s estate can file a lawsuit seeking compensation on behalf of the estate. Regardless of the merits of the underlying claim, however, if the party seeking damages does not comply with the procedural requirements for pursuing claims on behalf of the estate, the claim may be dismissed. This was demonstrated in a recent medical malpractice case which was dismissed due to the plaintiff’s inappropriate filings. If you suffered the loss of a loved one due to medical malpractice it is critical to retain a skilled Syracuse medical malpractice attorney to help you seek damages.

Factual and Procedural Background

Reportedly, in 2015, the plaintiff filed a lawsuit against the defendant, setting forth causes of action of medical malpractice on behalf of her decedent’s estate, arising out of nursing home negligence in January through September 2013. The plaintiff’s decedent died on September 30, 2013, but the plaintiff was not named as the administratrix of the decedent’s estate until January 2018. The case was dismissed by the court for the failure to prosecute. The plaintiff filed a motion to reinstate the action.

Dismissal of a Case Due to Improper Commencement

On appeal, the court affirmed the dismissal of the case and denied the plaintiff’s motion. The court stated that the action was improperly commenced and should have been dismissed at the outset, due to the plaintiff’s failure to obtain proper letters of administration. Further, the court noted that the plaintiff’s attorney lacked any authority to act until the proper party was substituted. As the case was dismissed due to the failure to prosecute, however, the court was limited to addressing the arguments set forth in the plaintiff’s motion.

Published on: August 28, 2019

New York Court Discusses a Primary Care Physician’s Liability for Harm Caused by Third-Parties

by DeFrancisco & Falgiatano

While most medical malpractice cases are straightforward and merely allege harm caused by inadequate care provided by a doctor, some cases allege a physician should be held liable for inappropriate acts committed by a third party. In a recent case, the Supreme Court of New York, Bronx County analyzed whether a primary care physician could be held liable under for medical malpractice for criminal acts committed by a physical therapist the plaintiff was referred to by the physician. If you sustained harm due to the negligent care or referral of a primary care physician, it is prudent to meet with a trusted Syracuse primary care physician malpractice attorney as soon as possible to discuss whether you may be entitled to compensation.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff treated with the defendant neurologist who diagnosed the plaintiff with a concussion and a spinal injury. The defendant neurologist prescribed physical therapy for the plaintiff and then referred the plaintiff to the defendant primary care physician (PCP). In turn, the primary care cleared the plaintiff for physical therapy following a physical examination. The plaintiff underwent physical therapy with the defendant student therapist, at the direction of the defendant PCP.

Allegedly, during one of the therapy sessions, the defendant student sexually assaulted the plaintiff. The plaintiff subsequently filed a medical malpractice lawsuit against the defendants alleging, in part, that the defendant PCP improperly prescribed medications and physical therapy, and knew or should have known that the defendant student would engage in sexual abuse and failed to protect the plaintiff from harm. The defendant PCP filed a motion for summary judgment, which the court ultimately granted.

Published on: June 29, 2019

New York Court Explains Application of Frye Test in Medical Malpractice Cases

by DeFrancisco & Falgiatano

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.

Published on: June 20, 2019

Court Discusses Appropriate Venue in New York Medical Malpractice Cases

by DeFrancisco & Falgiatano

In most cases, as the plaintiff is the party that commences a lawsuit, he or she chooses the venue in which an action will be heard. In certain instances, however, the defendant can move for a change of venue, which the court may grant if it finds that the forum chosen by the plaintiff is not appropriate. In a recent New York appellate court case in which the plaintiff alleged harm due to the failure to diagnose her husband in a timely manner, the court discussed what constitutes an appropriate forum in a medical malpractice lawsuit. If you the suffered the loss of a loved one due to a doctor’s negligent failure to diagnose an injury or illness you should speak with an experienced Syracuse failure to diagnose malpractice lawyer regarding your options for seeking damages.

Facts of the Case

It is alleged that the plaintiff’s husband treated with the defendant physician at the defendant hospital. The plaintiff’s husband ultimately died due to an aneurysmal AV fistula. The plaintiff filed a lawsuit against the defendants, alleging medical malpractice due to the failure to diagnose the plaintiff’s husband in a timely manner, wrongful death, and lack of informed consent. The defendants filed a motion to change the venue from one county to another. The court denied the motion and the defendants appealed.

Appropriate Venue in a Medical Malpractice Case

Under New York law, the court can change the place of a trial in an action where the county in which the lawsuit was filed is not the proper county. For the court to grant a defendant’s motion to dismiss, the defendant must prove that the venue chosen by the plaintiff is improper and that his or her chosen venue is proper. If the defendant meets this burden, the plaintiff can oppose the motion by showing that the venue he or she selected is proper. Continue reading

Published on: April 26, 2019

Court Explains the Standard for Assessing a Jury’s Damage Award in a Obstetric Malpractice Case

by DeFrancisco & Falgiatano

In an obstetric malpractice case in which the plaintiff alleges inadequate care harmed a child, the plaintiff bears the burden of proving not only that the defendant obstetrician’s negligent care was the cause of the harm, but also the damages caused by the harm. In most cases, a jury assessing damages for the harm caused to a child at birth will assess the cost of the child’s ongoing treatment and the financial detriment to the child in the future due to his or her injuries. While the court is reluctant to disturb a jury’s findings, in cases where the verdict is deemed unreasonable, the verdict may be overturned. This was demonstrated in a recent New York case in which the court found that the jury’s damages award for harm caused by obstetric malpractice materially deviated from what is reasonable. If your child was injured by obstetric malpractice it is vital to retain a capable Syracuse medical malpractice attorney to assist you in your pursuit of compensation.

Facts Regarding the Plaintiffs’ Care

Reportedly, the plaintiff’s mother was under the care of the defendant obstetrician during her pregnancy. She was diagnosed with cervical insufficiency, and the plaintiff was subsequently born at 24 weeks gestation and allegedly suffered multiple neurological injuries. The plaintiff’s mother subsequently filed a medical malpractice lawsuit against the defendant, alleging that the defendant deviated from the accepted standard of care by failing to offer her a cerclage to prevent premature birth and failing to obtain a maternal fetal medicine consult, which resulted in her the plaintiff’s harm. The case was tried in front of a jury, which awarded the plaintiff a total of $20 million in pain and suffering, lost earnings of $113,000, and additional damages for therapy. The defendant filed a motion to set aside the verdict as contrary to the weight of the evidence.

The Standard for Evaluating a Verdict

Under New York law, what constitutes an appropriate damages award is a question for the plaintiff, and it will usually not be disturbed unless the court finds the jury materially deviated from what would be considered reasonable compensation. In determining what constitutes reasonable compensation, the court should look at the relevant precedent of similar cases. In the subject case, the court reviewed cases relied upon by both the plaintiff and the defendant in support of what constituted reasonable damages. The court ultimately found the cases produced by the defendant to be more persuasive and determined the damages awarded to the plaintiff for pain and suffering materially deviated from what is reasonable in light of the nature and extent of his injuries. The court denied the defendant’s motion as to the remainder of the damages, however.
Continue reading