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Articles Posted in Orthopedic Malpractice

Doctors accused of medical malpractice will rarely admit fault. In fact, in many cases, they will move to dismiss the claims against them in their entirety. A plaintiff in a medical malpractice case can defeat such motions by demonstrating via expert evidence that a factual dispute exists as to whether the defendant caused the plaintiff’s harm. Courts do not always assess such evidence properly, however, and may unjustly dismiss a plaintiff’s claim regardless of the evidentiary support. As demonstrated in a recent New York case, though, such decisions may be reversible. If you were hurt by inadequate medical care, it is advisable to talk to a Syracuse medical malpractice attorney as soon as possible.

Factual and Procedural Setting of the Case

It is reported that the plaintiff, a child suffering from cerebral palsy, underwent surgery on both legs, including hamstring lengthening. The procedure was performed by the defendants, two orthopedic surgeons. Following the surgery, the plaintiff experienced postoperative complications, including bilateral weakness and sensory loss in the lower extremities. Subsequent examinations revealed a nerve stretch injury that caused the plaintiff to have significant difficulties walking. As such, the plaintiff initiated a medical malpractice action against the defendants, alleging negligence in performing the surgery and failing to timely diagnose the nerve stretch injury.

Allegedly, the defendants moved for summary judgment to dismiss the plaintiff’s claims. In support of their motion, the defendants offered an expert affidavit and medical records. The plaintiff opposed the motion, presenting a redacted affidavit from another expert physician. The trial court granted the defendants’ motion. The plaintiff then appealed. Continue Reading ›

Back conditions are complicated, and doctors require extensive training and experience before they can properly manage them. If a doctor fails to address symptoms that indicate potentially critical back issues, it can result in significant damages, including paralysis. Even if it seems clear that a patient’s losses are caused by negligence, however, to recover damages in a medical malpractice case, a plaintiff must typically retain a medical expert who sets forth precisely how the defendant doctor harmed the plaintiff. The failure to do so can result in the dismissal of the case, as demonstrated in a recent New York ruling. If you were injured by an incompetent orthopedic surgeon, it is smart to meet with a Syracuse medical malpractice lawyer to determine your options.

The Plaintiff’s Harm

It is reported that the plaintiff suffered from scoliosis and underwent numerous spinal surgeries throughout her life. She routinely treated with the defendant orthopedic surgeon for management of her back pain. In October 2016, her back pain worsened, and she underwent x-rays which revealed that one of the rods that had previously been surgically installed in her back had broken. She visited the defendant, who determined that her condition was not emergent and did not require any management at that time because she was neurologically stable.

While it is generally imprudent to file a civil lawsuit without the assistance of an attorney, it can be an especially poor decision in a medical malpractice case, given the complexities of the issues and the strict requirements for proving a health care provider’s liability under New York law. The dangers of proceeding pro se were illustrated in a recent orthopedic malpractice case that the court dismissed due to the plaintiff’s failure to appear at numerous conferences.  If you were injured due to an improperly performed orthopedic surgery, it is smart to speak to an experienced Syracuse orthopedic malpractice attorney regarding your potential claims.

Facts Regarding the Plaintiff’s Treatment

It is alleged that the plaintiff underwent shoulder surgery that was performed by the defendant orthopedic surgeon. The plaintiff alleged that he was misinformed regarding the manner in which the surgery would be performed and the potential side effects of the surgery and that the defendant performed the surgery in a negligent manner, causing the plaintiff to suffer permanent injuries and significant pain. Thus, the plaintiff filed a medical malpractice lawsuit against the defendant. The plaintiff subsequently filed a note of issue but failed to move the case forward. Additionally, the plaintiff failed to appear at two conferences scheduled by the court without explanation. As such, the court dismissed the plaintiff’s action. The plaintiff appealed, asking for his lawsuit to be restored, but the appellate court affirmed the trial court ruling.

A Court’s Discretion to Dismiss a Case Under New York Law

Pursuant to the New York Uniform Civil Rules For The Supreme Court And The County, a court has the discretion to order a dismissal of a complaint in a case where the plaintiff either fails to appear or is not ready to proceed. In the subject case, the appellate court noted that the plaintiff failed to appear at multiple conferences that were scheduled following the filing of the note of issue. Thus, the trial court properly ordered the dismissal of the plaintiff’s complaint.

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In most medical malpractice cases, the plaintiff will rely on a jury to assess the evidence presented at trial to determine if the defendant should be held liable for the plaintiff’s harm. While a jury determines the key issues in a case, the judge determines what evidence each party is permitted to introduce to the jury and what guidance and instructions the jury receives. As such, if a judge permits a defendant to introduce testimony that should be precluded or bars the plaintiff from setting forth relevant evidence, the plaintiff may subsequently receive an adverse verdict. In such cases, the plaintiff may be able to have the verdict set aside in the interest of justice. Recently, a New York appellate court assessing the verdict in an orthopedic malpractice case discussed the standard for vacating a verdict in the interest of justice. If you sustained damages due to a negligent orthopedist, it is in your best interest to speak with a skillful Syracuse orthopedic malpractice attorney regarding your case.

Evidence Introduced at Trial Regarding the Plaintiff’s Harm

Allegedly, the plaintiff filed a malpractice lawsuit against the defendant orthopedic surgeon arising out of a negligently performed knee replacement. The plaintiff introduced evidence at trial that the defendant improperly fitted a prosthesis into the plaintiff’s knee, overstuffed the knee, and deviated from the accepted standard in providing post-operative care, all of which led to the need for revision surgery. Following the liability portion of the trial, the jury found in favor of the defendant. The plaintiff filed a motion to set aside the verdict in the interest of justice, which the court denied. The plaintiff then appealed the judgment and the order denying the motion.

Setting Aside a Verdict in the Interest of Justice

Pursuant to the New York laws of civil practice, the court may set aside a verdict in the interest of justice upon the motion of a party or by its own initiative. The rule is predicated on the belief that the judge presiding at a trial is in the best position to assess whether any errors were committed at trial. A motion to set aside a verdict in the interest of justice can arise out of errors in the trial court’s ruling regarding the admissibility of evidence, newly discovered evidence, surprise, or mistakes in charging the jury.

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In many medical malpractice lawsuits, there will be more than one defendant. Thus, it is not uncommon for a plaintiff to settle his or her claims against one defendant but to allow the remaining claims to proceed to trial. Typically, plaintiffs will wish to keep the terms of any settlement agreement confidential to protect their rights to seek a fair resolution of any remaining claims. The Supreme Court, Bronx County, New York, assessed when a plaintiff may be required to disclose the terms of a confidential settlement agreement in a recent orthopedic malpractice case. If you sustained an injury or illness because of inadequate care provided by an orthopedic surgeon, it is important to consult a capable Syracuse orthopedic malpractice attorney regarding your potential damages.

Facts and Procedure of the Case

Reportedly, the plaintiff filed a medical malpractice lawsuit against the defendant orthopedic surgeon, defendant orthopedic medical group, and defendant hospital. Specifically, the plaintiff alleged that the defendants inappropriately administered an antibiotic to treat an MRSA infection that the plaintiff developed following arthroscopic knee surgery. The plaintiff subsequently settled her claims against the defendant hospital. The remaining defendants then sought to compel the plaintiff to disclose the terms of the settlement agreement, which were confidential. The plaintiff opposed the motion, stating she was only obligated to disclose the amount of her settlement with the hospital after a verdict had been issued against the remaining defendants.

Discovery of the Terms of a Confidential Settlement Agreement

Upon reviewing the defendants’ motion, the court stated that settlement agreements are favored under New York law, as they allow parties to avoid costly and time-consuming litigation and help to preserve judicial resources. Additionally, the court noted that it benefits society to allow parties to develop their own resolution to a dispute rather than relying on court intervention. The court also explained that in many cases, confidentiality is required to protect the parties involved and to encourage a just resolution.

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One of the essential elements of any medical malpractice claim is a doctor-patient relationship. While in most instances, whether a doctor-patient relationship exists is not disputed in some cases the status of the relationship between the injured party and the physician that allegedly caused the injured party harm is not clear. This was illustrated in a recent New York case in which the plaintiff alleged that he was injured due to medical malpractice committed during an independent medical examination that was conducted by an orthopedist for insurance purposes. If you sustained injuries due to orthopedic malpractice it is in your best interest to retain a skilled Syracuse orthopedic malpractice attorney as soon as possible to represent you in your pursuit of compensation.

Factual Background of the Case

Allegedly, the plaintiff sustained injuries to his left shoulder in a car accident. He subsequently presented to the defendant orthopedist for an independent medical examination for insurance purposes. During the examination, the defendant reportedly applied strong pressure to the plaintiff’s left kneecap, causing him pain. The defendant then held the plaintiff’s left arm and bent it, causing a popping sound and extreme pain. The plaintiff subsequently required injections in his left shoulder and other additional treatment. He filed a medical malpractice lawsuit against the defendant. The defendant then filed a motion to dismiss, arguing that the plaintiff could not recover as a matter of law because no doctor-patient relationship existed.

Orthopedic surgery involves invasive procedures that require the utmost care and attention from the surgeon. If you have sustained a preventable injury as a result of an orthopedic surgeon’s error or wrongdoing, you may be able to recover compensation for your harm. At DeFrancisco & Falgiatano Personal Injury Lawyers, our Syracuse medical malpractice attorneys have years of experience representing families harmed by an orthopedic surgeon’s negligence.A recent study published by the U.S. National Library of Medicine National Institutes of Health found that orthopedic surgeons were at significantly greater risk of being sued than other medical specialists. A total of 81 cases from the Westlaw legal database, including state and federal jury verdicts and settlements related to medical malpractice and orthopedic surgery from 2010 to 2016, were analyzed. The study found that juries found in favor of the defendant orthopedic surgeon in most cases – 61.7 percent of cases to be exact.

The study found that the most common reasons for lawsuits were procedural errors, which were at issue in 87.7 percent or 71 cases, and negligence, which was at issue in 71.6 percent or 58 cases. Most litigation involved spine surgery (25.9 percent or 21 cases), knee surgery (21 percent or 17 cases), and hip surgery (11.6 percent or 11 cases). The average payout for a verdict in favor of the plaintiff was over $3 million. The average settlement value was just over $1.5 million. In addition, cases involving male patients and patient death were more likely to lead to verdicts favoring the plaintiff.

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We rely on orthopedists to treat injuries to the bones, muscles, tendons, and ligaments, including the spine. While the majority of orthopedists treat patients competently, some make mistakes that can seriously injure a patient. If you or a loved one has been injured due to an orthopedist’s error, you may be entitled to compensation. At DeFrancisco & Falgiatano Personal Injury Lawyers, our Syracuse orthopedic malpractice lawyers are committed to holding negligent medical professionals accountable for the harm that they cause.

An orthopedist is a doctor who specializes in the branch of medicine concerned with the correction or prevention of deformities of the bones. Typically, an orthopedist will address functional abnormalities of the bones with surgery, casting, and bracing. A 2015 medical malpractice report conducted by Medscape surveyed nearly 4,000 physicians, including orthopedists, to find out why they were sued for malpractice. The report found that orthopedists are among the most likely physicians to be sued, just behind OBGYNs and general surgeons. In fact, 79 percent of orthopedists have been sued. The top three reasons orthopedists were sued included the following:  the patient suffered an abnormal injury; failure to diagnose; and failure to treat. Other examples of orthopedist errors include but are not limited to:

  • Placing a cast on too tightly and causing nerve injuries;

Athletes and people living active lifestyles risk injuries such as pulling muscles or tearing ligaments. Orthopedic specialists often work with athletes to help repair those types of sports-related injuries. The experience of a New York woman who received a surgical biopsy from an orthopedic surgeon shows what can go wrong in certain circumstances. The case between a high school tennis athlete and her orthopedic surgeon provides an example of a New York orthopedic malpractice case.

The plaintiff, formerly an all-star tennis player in high school, went to see an orthopedic surgeon about a benign bone growth, also known as osteochondoroma, in her left leg. The surgeon conducted the surgical biopsy and cut a nerve in the plaintiff’s leg. The resulting injury allegedly put her in a wheelchair and required months of physical therapy in order to regain the ability to walk. The plaintiff underwent another procedure to have the growth removed by another surgeon, although she still has pain in her leg that will allegedly continue for the rest of her life.

The plaintiff’s lawsuit against the surgeon alleged orthopedic malpractice. The elements for orthopedic malpractice in New York include:  (i) the plaintiff was under the care of an orthopedic specialist; (ii) in the course of treatment, the orthopedic specialist failed to conduct him or herself in accordance with the standards of orthopedic specialists in New York; and (iii) the plaintiff was injured because of the orthopedic specialist’s negligence.

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