Articles Posted in Medical Malpractice

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While most people choose to hire a competent attorney to represent them in medical malpractice cases, some decide to represent themselves to avoid the cost of attorneys’ fees. Medical malpractice cases are usually intricate, though, and handling them typically requires extensive knowledge and skill. As such, plaintiffs that represent themselves often end up with adverse outcomes, as demonstrated in a recent medical malpractice case in New York in which the pro se plaintiff’s claims were dismissed. If you were hurt by the incompetence of a medical professional, it is advisable to confer with a Syracuse medical malpractice attorney to assess the best manner to proceed in your case.

Background of the Case

It is reported that the plaintiff was treated at the defendant hospital in 2017 and 2018 for breast cancer. She subsequently suffered unspecified harm, after which she filed a medical malpractice case against the defendant in federal court. The plaintiff, who filed the case without the assistance of an attorney, filed a request to proceed in forma pauperis, which was granted. The defendant then filed a motion to dismiss the plaintiff’s case due to a lack of subject matter jurisdiction. The court granted the defendant’s motion but allowed the plaintiff leave to replead her case.

Jurisdiction Over Medical Malpractice Cases

The court explained that under the relevant federal law, an in forma pauperis action should be dismissed if it is frivolous, seeks compensation from a defendant that is immune from such relief, or fails to set forth a claim upon which relief may be granted. Thus, to avoid dismissal, a plaintiff must plead sufficient facts to state a claim for relief that is plausible on its face.

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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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Generally, in medical malpractice cases in the state of New York, the plaintiff will file a complaint and a bill of particulars setting forth the alleged wrongdoings of the defendant, and then the parties will engage in discovery. In many instances, after discovery is closed, the defendant will ask the court to dismiss the plaintiff’s claims via a motion for summary judgment. If the plaintiff can demonstrate the existence of a valid factual dispute as to whether the defendant committed malpractice, though, the plaintiff’s case may proceed to trial. Recently, a New York court discussed the evidence needed to demonstrate a triable issue of fact, in a case in which the plaintiff alleged that the defendant’s negligence led to the plaintiff’s mother’s death. If you or a loved one suffered harm at the hands of a primary care doctor, it is wise to meet with a trusted Syracuse primary care malpractice attorney to evaluate whether you have a viable claim.

Factual and Procedural History

It is reported that the plaintiff’s mother, who was 70-years-old, suffered a fall at home. She was then admitted to the hospital by the defendant primary care physician, who had been caring for her for eight years. Approximately two weeks later, the defendant transferred the mother to the defendant nursing and rehabilitation center to undergo physical therapy and strengthening. While she was admitted to the center, the mother’s condition deteriorated, and after three weeks, she was transferred back into the hospital.

Allegedly, she died one week later from cardiopulmonary arrest, with urosepsis as a significant factor that contributed to her demise. The plaintiff then filed a medical malpractice lawsuit against the defendants, alleging that her mother was injured during her admission to the defendant center. The defendants each filed motions for summary judgment, which were denied. The defendant primary care physician then appealed. Continue reading

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Generally, in a medical malpractice case in New York, it is the plaintiff’s duty to move the case forward. Thus, if the plaintiff fails to pursue his or her claims against the defendant, it may result in a dismissal. Recently, a New York court discussed when the dismissal of a medical malpractice claim for failure to prosecute is warranted in a case in which the plaintiff failed to comply with an order directing her to file a note of issue. If you were hurt by reckless or negligent medical care, it is in your best interest to speak to a Syracuse medical malpractice attorney to discuss what steps you must take to prove liability for your harm.

Facts and Procedural History of the Case

The facts of the case are sparse. It is reported, however, that the plaintiff filed a medical malpractice lawsuit against numerous defendants. Ultimately, the trial court issued an order directing the plaintiff to file a note of issue. The plaintiff did not comply with the court’s directive, however. As such, the defendants each individually filed motions to have the plaintiff’s claims against them dismissed, and the plaintiff filed a motion to extend the time to file a note of issue. The trial court granted the defendants’ motions, thereby terminating all of the plaintiff’s claims. The plaintiff then appealed.

Dismissal of a Case for Failure to File a Note of Issue

On appeal, the court reversed the trial court ruling and granted the defendant’s motion for additional time to file the note of issue. The court noted that while a plaintiff’s failure to abide by a court order directing her to file a note of issue may provide grounds for the dismissal of a complaint, a court is barred from dismissing an action based on the plaintiff’s failure to prosecute claims against the defendant unless certain statutory conditions are met. For example, under the applicable statute, a 90-day demand to file a note must be served on the plaintiff. Thus, either the defendant or the court must file a 90-day demand to file a note of issue before a court is permitted to dismiss a lawsuit for failure to prosecute.

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A variety of health care providers’ actions or failure to act may give rise to a claim for medical malpractice. For example, not only may improperly rendered care form the basis for a medical malpractice lawsuit, but the failure to obtain a patient’s informed consent prior to performing a procedure may as well. A plaintiff asserting multiple claims in a medical malpractice action must meet the requirements for proceeding with each claim, however, as each claim is analyzed separately, as demonstrated in a recent ob-gyn malpractice case in New York. If you or your child suffered harm due to negligent care provided by an obstetrician or gynecologist, it is advisable to consult a seasoned Syracuse ob-gyn malpractice attorney regarding your potential claims.

Factual and Procedural History

It is alleged that the plaintiff treated at the defendant health center during her pregnancy. The defendant was a federally qualified health center eligible for coverage under the Federal Tort Claims Act. The plaintiff’s baby suffered numerous birth injuries due to the defendant’s failure to conduct proper fetal monitoring or to deliver the baby in a timely manner. Thus, the plaintiff filed a lawsuit against the defendant pursuant to the Tort Claims Act, alleging medical negligence and lack of informed consent, and arguing that she suffered the loss of consortium of her child. The defendant filed a motion to dismiss the plaintiff’s lack of informed consent and the loss of consortium claims.

Pursuing Medical Malpractice Claims Under the Federal Tort Claims Act

The Federal Tort Claims Act is the sole remedy for claims against the United States or any of its employees. Thus, prior to commencing a lawsuit under the Tort Claims Act, a plaintiff must file an administrative claim with the correct federal agency, and the claim must be denied. Filing the claim is a jurisdictional requirement that cannot be waived. As such, if a plaintiff fails to meet this requirement, his or her claim must be dismissed due to the court’s lack of subject matter jurisdiction.

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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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In many instances in which a patient suffers harm due to incompetent medical care, more than one care provider will contribute to the patient’s harm. Thus, in many medical malpractice cases, a patient may need to obtain information from a provider not only regarding the care provided by the provider but also regarding the sufficiency of the care provided by other practitioners as well.  Thus, if a provider refuses to answer certain questions in a deposition, the patient may not be able to obtain the information needed to prove liability. As such, in some cases, a patient may be able to compel a provider to attend a deposition and answer a proposed line of questioning, as shown in a recent New York case. If you were harmed by negligent medical care, it is in your best interest to consult a seasoned Syracuse medical malpractice attorney to discuss your options for seeking the evidence you need to prove your medical provider caused your harm.

Factual Background of the Case

Allegedly, the plaintiff filed a medical malpractice claim against numerous defendants, including a hospital, a radiology practice, and an individual radiologist, arising out of harm caused by the defendant radiologist’s failure to properly diagnose the plaintiff’s heart issues. During the course of discovery, the plaintiff’s attorney deposed the defendant radiologist; however, the defendant radiologist refused to answer certain questions regarding the plaintiff’s treatment she underwent after she was treated by the defendants. Thus, the plaintiff’s attorney filed a motion to compel the defendant radiologist’s continued deposition. The trial court denied the plaintiff’s motion, after which the plaintiff appealed.

Seeking Testimony Relative to the Plaintiff’s Claims

On appeal, the appellate court reversed the trial court ruling and ordered the defendant radiologist to submit to his continued deposition. Specifically, the court stated that under New York law, the defendant radiologist could be questioned as an expert in the radiology practice area regarding the plaintiff’s subsequent medical records, her subsequent CT scans and reports, and the findings set forth in a report following a subsequent angiogram. Further, the court stated that such questions did not solely relate to the alleged negligence of other defendant physicians, but were relevant to the issue of whether the defendants’ collective negligence in failing to diagnose and treat the plaintiff proximately caused the plaintiff’s harm. As such, the appellate court found that the trial court erred in denying the plaintiff’s motion to compel the defendant to answer questions regarding the plaintiff’s treatment at two other hospitals and order the defendant radiologist to submit to a further deposition.

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Most medical malpractice cases hinge on the persuasiveness of each party’s expert reports. Thus, if a plaintiff’s report is deemed insufficient or inadequate, or the plaintiff’s expert is deemed unqualified to offer an opinion on the salient issues, the plaintiff’s report may be precluded, which will generally result in a dismissal of the plaintiff’s case. There are several factors that are assessed in evaluating whether a plaintiff’s report should be admitted into evidence, as discussed in a recent case decided by a New York district court, in which the plaintiff sought damages from the defendant government entity pursuant to the Federal Torts Claims Act. If you suffered harm at a government facility, it is prudent to speak with a trusted Syracuse medical malpractice attorney regarding the evidence you may need to prove liability.

Factual Background

Allegedly, the plaintiff visited the defendant government-owned facility for the treatment of an illness. She reportedly suffered harm when a nurse practitioner over-inflated a blood pressure cuff on her arm. Thus, she filed a medical malpractice claim against the defendant pursuant to the Federal Torts Claims Act. The defendant subsequently moved to preclude the plaintiff’s expert report and to have the plaintiff’s claims dismissed via summary judgment. After reviewing the evidence of the case, the court granted both motions.

Sufficiency of an Expert Report

Under the Federal Rules of Evidence, an expert’s testimony will be admitted if it is based on facts or data, is the product of reliable principles that have been reliably applied to the facts of the case, and the expert possesses the necessary specialized knowledge to assist the trier of fact in determining the ultimate issues of the case. To determine whether an expert is qualified, the court assesses whether the expert’s area of specialty aligns with the subject matter of his or her proposed testimony. Thus, an expert may be insufficiently qualified if his or her expertise is deficient or too general.

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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.

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