Medical Malpractice

Published on: September 30, 2019

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

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.
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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: April 13, 2019

New York Court Rules Dead Man’s Statute Does Not Preclude Evidence of Written Consent in a Medical Malpractice Case

by DeFrancisco & Falgiatano

Prior to surgery, the physician performing the surgery will typically obtain the patient’s informed consent. The process of obtaining informed consent involves advising the patient of any potential risks to the surgery and asking if the patient understands the risks and consents to the surgery regardless of the risks it presents. A failure to obtain informed consent can form the basis of a surgical malpractice claim if the patient suffers harm as a result of the surgery.

Determining whether valid consent was obtained is a fact-specific analysis. Recently, a New York court evaluated whether the Dead Man’s Statute precluded a deceased patient’s written consent form from evidence in support of the defendant surgeon’s motion for summary judgment. If you suffered harm due to surgical malpractice you should speak with a trusted Syracuse medical malpractice attorney as soon as you can to discuss whether you may be able to recover compensation.

The Plaintiff’s Decedent’s Surgery

Reportedly, the plaintiff’s decedent, who suffered from morbid obesity and sleep apnea, underwent arthroscopic surgery on his knee. The surgery was performed without incident by the defendant surgeon, while the decedent was under general anesthesia administered by the defendant anesthesiologist. Immediately after the surgery, the decedent was unresponsive. He then went into cardiac arrest. The surgical team made efforts to resuscitate the decedent, but they were unsuccessful, and he died.
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Published on: March 25, 2019

Court Discusses Standard for Granting Extension of Time to Serve New York Medical Malpractice Complaint

by DeFrancisco & Falgiatano

There are multiple facets that must combine for a plaintiff’s medical malpractice claim to be successful. First, the plaintiff must possess sufficient facts and evidence to show that the defendant medical provider should be held liable for the plaintiff’s alleged harm. Additionally, the plaintiff must comply with the procedural rules that dictate the manner in which a claim is prosecuted. For example, even if a plaintiff can present a strong case against a defendant, if the plaintiff fails to serve the initial pleading in a lawsuit in a timely manner, it may detrimentally affect his or her claim. In some cases, a plaintiff may be granted an extension of time to serve a lawsuit. A New York court recently discussed the standards for determining whether to grant a plaintiff an extension to serve a Complaint in a medical malpractice case. If your medical provider rendered negligence care that caused you to sustain an injury or illness, it is important to retain a knowledgeable Syracuse medical malpractice attorney to assist you in pursuing your claim.

Procedural Background

Reportedly, the plaintiff instituted a medical malpractice action in November 2016 by filing a Complaint. The Complaint set forth allegations that the defendant committed medical malpractice due to the failure to remove broken glass from the plaintiff’s leg. The defendant was reportedly served with the Complaint in December 2016. In February 2017, however, the defendant filed an answer to the Complaint and set forth the affirmative defense of lack of personal jurisdiction. The plaintiff then moved for an extension of time to serve the defendant with a Complaint. The defendant filed a counter motion to dismiss the Complaint due to lack of personal jurisdiction. The trial court granted the plaintiff’s motion and denied the defendant’s motion, after which the defendant appealed.

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: March 12, 2019

New York Court Dismisses Medical Malpractice Case for Plaintiff’s Failure to Participate in Discovery

by DeFrancisco & Falgiatano

In medical malpractice cases, a plaintiff’s right to recover damages depends on both the factual evidence in support of his or her claim and whether he or she complies with the procedural requirements set forth under the law. Even if a plaintiff has clear evidence of malpractice, he or she may be precluded from recovering from the defendant if he or she refuses to comply with the obligations imposed by the law.

This was evidenced in a recent case in which the appellate division of the Supreme Court of New York affirmed the dismissal of the plaintiff’s case due to a willful refusal to participate in discovery. If you or a loved one suffered damages due to medical treatment that fell below the standard of care, you should speak with a knowledgeable Syracuse medical malpractice attorney as soon as possible to analyze the circumstances that brought about your harm and your options for pursuing compensation.

Facts Regarding the Decedent’s Treatment

Reportedly, in 2007, the plaintiff took her grandson to the emergency department of the defendant hospital for treatment. The child was examined and discharged that day. He passed away at home five days after his visit to the defendant hospital. The plaintiff filed a medical malpractice lawsuit against the defendant hospital in 2009. Subsequently, in 2015, the defendant filed a demand for the plaintiff to prosecute the case, pursuant to the New York statute imposing penalties for the failure to disclose information. The plaintiff then filed a motion for an extension of time to file a note of issue. The court granted the motion but ordered the plaintiff to appear for a deposition on or before May 27, 2016. The plaintiff failed to appear for a deposition, and in July 2016 the defendant filed a motion to dismiss the plaintiff’s complaint. The court granted the motion, after which the plaintiff appealed.