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Articles Posted in Radiology Malpractice

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Mammograms are a critical component of preventative care. Many women do not undergo mammograms on a yearly basis, though, despite the clear health benefits. Other women undergo mammograms in mobile screening vans that typically offer mammograms during breast cancer awareness month. If a mammogram conducted in a mobile van is not properly performed or evaluated, and a woman subsequently suffers harm as a result, it can be difficult for the woman to pursue medical malpractice claims. This was demonstrated in a recent radiologic malpractice case arising out of Kings County, in which the court dismissed many of the plaintiff’s claims. If you were harmed by a negligent radiologist, it is wise to speak with a skillful Syracuse radiology malpractice attorney regarding what evidence you must produce to recover damages.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff underwent a mammogram at a mobile screening unit. The defendant radiologist was retained by the company that administered the mammogram to interpret the images. Thus, he interpreted the plaintiff’s mammogram and reported to the plaintiff’s primary care physician that the mammogram was normal, but that a recall was advised. The report also stated that the plaintiff had dense breasts that made her mammogram difficult to interpret. The plaintiff underwent examinations with her primary care physician and gynecologist, neither of which revealed abnormalities. The plaintiff was ultimately diagnosed with breast cancer approximately a year later. She subsequently filed a medical malpractice lawsuit against her gynecologist, primary care physician, and the radiologist for failing to diagnose her breast cancer in a timely manner. She also alleged negligent supervision and lack of informed consent claims. Following the close of discovery, the defendants filed motions for summary judgment, which the court granted in part.

Duty Owed by Non-treating Providers

Upon review, the court found that the plaintiff raised triable issues of fact as to whether the original mammography was adequate to obtain an interpretation, whether the defendant radiologist improperly categorized the mammogram as normal rather than inconclusive, and whether the aforementioned errors resulted in a delay in diagnosing the plaintiff’s breast cancer. The court dismissed the plaintiff’s lack of informed consent and negligent supervision claims, however. Additionally, the court dismissed the plaintiff’s claims that the radiologist should have obtained prior films for comparison or that he should have recommended a sonogram. Rather, the court stated that the radiologist was not the plaintiff’s treating physician, and therefore his role and legal obligation in her treatment was limited. Specifically, the court found that neither the radiologist nor the company that retained the defendant radiologist owed the plaintiff a general duty of care. Therefore, he did not have an obligation to obtain prior films from the plaintiff or advise her to seek further testing.

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In any New York medical malpractice lawsuit, certain information will be protected from disclosure based on a privilege afforded by the law. For example, there is certain information that is privileged under New York Public Health and Education laws, and a defendant can refuse to produce information under the privilege. If the defendant waives the privilege, however, it loses the right to argue that the protected information cannot be used as evidence. Recently, a New York court discussed the standards of reviewing privilege and waiver in a radiology malpractice case. If you suffered harm because of inappropriate radiological care, it is critical to speak with a knowledgeable Syracuse radiology malpractice attorney regarding the circumstances surrounding your harm and what compensation you may be able to recover.

Facts and Procedures of the Case

Allegedly, the plaintiff’s decedent presented to the defendant hospital for a CT guided needle biopsy to be performed by the defendant radiologist. The defendant physician mistakenly placed the biopsy needle in the decedent’s aorta, ultimately resulting in her untimely death. The plaintiff’s estate filed a radiology malpractice lawsuit against the defendants. During discovery, plaintiff’s counsel sought to depose a neurologist who examined the defendant radiologist for the purposes of determining his mental and physical capacity and competence in rendering care. The neurologist also produced a written report of his findings. The defendants filed a motion for a protective order, arguing that the neurologist’s testimony and report were privileged. The trial court granted the motion and the plaintiffs appealed.

Privilege in Medical Malpractice Cases

The court noted that the testimony and report were privileged under Public Health Law § 2805–m(2) and Education Law § 6527(3). The court stated, however, that when a party discloses a privileged document it typically waives the privilege unless the party intended for the document to remain confidential and took reasonable steps to prevent its disclosure. The court indicated that in the subject case, the document was originally disclosed by the examining neurologist in a different lawsuit. The defendant’s act of filing the report in the other lawsuit, however, permitted the report to be disclosed to the public at large. Specifically, the court noted that the defendant did not file the report under seal or take any other steps to prevent its disclosure. Thus, the court found that the defendant had waived the statutory privilege by disclosing the report. As such, the court reversed the trial court ruling.

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