Articles Posted in Surgical Malpractice

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Most treatment options are helpful but present risks of adverse side effects. To ensure that a patient is making an intelligent decision regarding whether to proceed with surgery, then a doctor must advise the patient of the hazards of the procedure and treatment alternatives. As such, doctors that operate on people absent informed consent may be deemed liable for any harm suffered, regardless of whether it is an expected result. In a recent New York opinion, a court discussed what must be proved by the plaintiff to recover under a lack of informed consent claim. If you were injured by your doctor’s failure to properly advise you of the potential consequences of a procedure, it is in your best interest to speak to a Syracuse surgical malpractice attorney to determine whether you may be able to recover damages.

The Plaintiff’s Care

It is alleged that the plaintiff underwent a cervical fusion after she sustained injuries in a collision. The defendant doctor performed the surgery. The plaintiff was then involved in a second car accident, after which she experienced increased neck pain. She underwent a second procedure, which was also performed by the defendant, after which she developed myelomalacia. She then filed a lawsuit against the defendant asserting medical negligence and lack of informed consent claims. The defendant moved for summary judgment, and the court granted his motion, after which the plaintiff appealed.

Lack of Informed Consent Claims Under New York Law

Under New York law, a plaintiff asserting a medical malpractice claim ascending out of the defendant’s failure to obtain the plaintiff’s informed consent must first establish that the defendant neglected to advise the plaintiff of the benefits, risks, and alternatives to the treatment and that a reasonable doctor would have provided such information. The plaintiff also has to prove that a reasonable person in the plaintiff’s position would have declined to undergo the treatment if provided with full disclosure of the associated risks. Continue reading

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In many instances, when a patient suffers complications following a surgery it is because the surgery was improperly performed. In such cases, the surgeon could be held liable for medical malpractice. If a person who develops an issue after a procedure wishes to pursue claims against the doctor that performed the procedure, though, the individual must obtain testimony from a competent expert to establish that the adverse health effects arose out of medical incompetence, otherwise they may be denied the right to recover damages. This was demonstrated in a ruling recently issued by a New York court, in a case in which the defendant argued the plaintiff’s harm was not caused by medical negligence and the court agreed. If you sustained losses because of an inappropriately performed surgery, it is smart to speak to a Syracuse surgical malpractice attorney to determine what evidence you must produce to recover damages.

The Plaintiff’s Harm

It is reported that the plaintiff underwent a right knee replacement in February 2012, that was performed by the defendant orthopedic surgeon. His wound healed slowly, and he later underwent a second surgery which was performed by the defendant orthopedic surgeon to maintain the hardware that had been placed during the first procedure. The defendant plastic surgeon also performed a procedure at that time.

It was reported that the plaintiff then developed pain and range of motion issues and underwent a total knee replacement two years later. He then filed a medical malpractice lawsuit against the defendants, arguing their negligence led to complications that required the knee replacement. The defendants filed motions asking the court to dismiss the plaintiff’s claims via summary judgment. The court denied the motions and the defendants appealed. Continue reading

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New York has many municipally owned and operated hospitals and medical facilities. While such facilities are not immune to medical malpractice claims, they are subject to different rules. In a recent New York opinion, a court explained the requirements for pursuing medical malpractice claims against a municipality in a case arising out of a negligently performed surgery. If you were hurt due to surgical errors, you should consult a trusted Syracuse surgical malpractice attorney to evaluate your rights.

The Plaintiff’s Claims

It is reported that in April 2016, the plaintiff underwent a surgical procedure to remove her thymus gland at the defendant hospital, which was a public corporation. In August 2016, the plaintiff reported to the defendant’s emergency room with complaints of shortness of breath and other symptoms. She was evaluated as having an elevated right hemidiaphragm and discharged. She visited another emergency room in November 2016 with similar symptoms and received the same diagnosis. Then, in January 2017, she was diagnosed with paralysis of the right hemidiaphragm due to the removal of her right phrenic nerve during her surgery.

It is alleged that in March 2017, the plaintiff served the defendant a petition asking to serve late notice of a claim. The petition alleged the defendant’s failure to obtain the plaintiff’s informed consent and medical malpractice caused the plaintiff’s harm. The court denied the plaintiff’s petition, and she appealed. Continue reading

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Surgeons often perform multiple procedures per week, and in many instances, they cannot recall specific surgeries or what techniques or methods they employed during them. Thus, if a patient suffers harm during surgery, the doctor may not have independent knowledge of his or her conduct during the surgery, as required to demonstrate compliance with the standard of care. In some instances, though, a doctor accused of medical malpractice may rely on habit testimony to avoid liability, but such testimony is only permissible in limited circumstances. The admission of habit testimony was the topic of a recent New York ruling in a matter arising out of surgical malpractice. If you were harmed during a surgical procedure, you might be owed compensation, and it is advisable to speak to a knowledgeable Syracuse surgical malpractice attorney.

The Plaintiff’s Harm and Subsequent Claims

Allegedly, the defendant performed a LAP-Band procedure on the plaintiff. The plaintiff suffered a perforated bowel during the procedure, which was not discovered until days later, when she was recovering in the hospital. She then underwent a second procedure to repair the perforation. The plaintiff filed a medical malpractice lawsuit against the defendant, arguing that his failure to prevent and identify the bowel perforation during the initial procedure constituted medical negligence. After discovery closed, the defendant filed a motion for summary judgment, arguing that he did not depart from the applicable standard of care. The trial court granted the motion, and the plaintiff appealed.

Habit Testimony in Medical Malpractice Cases

In support of his motion for summary judgment, the defendant submitted an affidavit from a medical expert that opined the defendant did not deviate from the standard. The court noted, however, that the expert’s opinion relied largely on improper evidence.

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In New York, the plaintiff generally determines where to file a medical malpractice lawsuit, within certain parameters. Once a medical malpractice lawsuit is filed, any depositions in the case will usually be conducted in the same county where the case was instituted. A defendant can object to the location of a deposition, and under certain situations, the objections will be sustained, as demonstrated in a ruling recently set forth in a surgical malpractice case in New York. If you were harmed by an improperly performed surgery, you might be owed compensation, and you should meet with a capable Syracuse surgical malpractice attorney to discuss your rights.

Factual and Procedural Background of the Case

Allegedly, the defendant surgeon performed breast reconstruction surgery on the plaintiff. After the surgery, it became apparent that the defendant used the incorrect size implants, causing the plaintiff to suffer disfigurement and emotional trauma. The plaintiff then filed a medical malpractice case against the defendant surgeon and the defendant hospital where the procedure was performed.

It is reported that during the course of discovery, the plaintiff noticed the depositions of the defendant surgeon as well as several other doctors and medical professionals who provide care to cancer patients. The defendants moved for a protective order, asking the court to rule that the depositions must be conducted in New York County rather than the county in which the action was filed, which was 350 miles away. The trial court granted the defendant’s motion, and the plaintiff appealed.

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In New York, there are many acts and omissions that may constitute grounds for a medical malpractice claim. For example, if a doctor neglects to adequately inform a patient regarding the risks and potential consequences of a procedure, he or she may be liable for failing to obtain the patient’s informed consent. In some instances, though, the complete failure to get permission from a patient prior to performing surgery may constitute a tort other than malpractice. This was shown in a recent New York surgical malpractice case in which the court discussed the elements of a lack of informed consent claim as opposed to a claim for assault and battery. If you suffered harm because of a surgical error, you should speak to a committed Syracuse surgical malpractice attorney as soon as possible to evaluate what claims you may be able to assert in a civil lawsuit.

Factual and Procedural History

It is reported that the plaintiff underwent a surgical repair of a hernia that was performed by the defendant doctor at the defendant hospital. After the procedure, the plaintiff suffered injuries and complications. He then filed a medical malpractice lawsuit against the defendants alleging, in part, that the defendant doctor failed to obtain his informed consent by failing to advise him of the potential consequences of the surgery, and performing procedures that the plaintiff did not agree to undergo. The defendant filed a motion to dismiss, arguing that the plaintiff’s claims sounded in assault and battery rather than medical negligence. The trial court denied the defendant’s motion, and he appealed.

Elements of a Lack of Informed Consent Claim

Pursuant to New York law, a medical professional may be deemed liable for an intentional act of battery, instead of medical malpractice, if the professional performs a procedure for which the plaintiff did not provide any consent at all. If a surgeon merely exceeds the scope of the consent provided by a plaintiff, however, any acts that fall outside of the permission granted by the plaintiff may form the basis of a valid lack of informed consent claim.

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Typically, a plaintiff pursuing claims for medical malpractice will ask a jury to assess both liability and what damages should be awarded to the plaintiff. While determining what constitutes appropriate compensation for pain and suffering is within the purview of the jury, if a jury issues a damages award that does not align with the law or evidence, the court may modify the award. The grounds for modifying damages awarded by a jury were discussed in a recent surgical malpractice case in New York in which the defendant filed a motion to reduce the damages the jury awarded the plaintiff. If you suffered an injury due to a negligently performed surgery, you may be able to recover damages for your harm and should speak to a diligent Syracuse surgical malpractice attorney.

Procedural History of the Case

It is reported that the defendant perforated the plaintiff’s small intestine while performing an endoscopy on the plaintiff, after which the plaintiff required a surgical procedure to repair the perforation. The plaintiff then filed a medical malpractice lawsuit against the defendant. At trial, the plaintiff’s expert testified that the plaintiff had a permanent scar on her abdomen that was almost eight inches long, and had an increased risk of developing hernias, bacterial overgrowth in her abdomen, and bowel obstructions due to the surgery.

Allegedly, the jury found in favor of the plaintiff, awarding the plaintiff $1,500,000 for past pain and suffering and $1,000,000 for future pain and suffering. The defendant filed a motion to set aside the jury’s verdict as excessive unless the plaintiff agreed to stipulate to lower damages. The trial court granted the motion, and the plaintiff appealed.

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In many instances in which a person undergoes a surgical procedure, there are numerous physicians taking part in the surgery. Thus, there may be multiple physicians who may ultimately be held liable for a patient’s injuries if an error is committed during surgery. In a recent New York surgical malpractice case, the court assessed whether a supervising physician could be held liable for medical malpractice for errors committed during the surgery and, if so, the basis for imposing liability. If you or a loved one sustained injuries due to a negligently performed surgery, it is prudent to speak with a dedicated Syracuse surgical malpractice attorney regarding your potential claims.

Facts of the Case

It is reported that the plaintiff underwent bariatric surgery to reduce the size of her stomach. The surgery was performed by the defendant bariatric surgeon, a second defendant surgeon, the defendant anesthesiologist, and the defendant nurse anesthetist. During the course of the surgery, two surgical instruments were stapled to the plaintiff’s stomach, which required a dissection and repair. The plaintiff then filed a medical malpractice action against the defendants. The defendant anesthesiologist moved for summary judgment. The court denied the motion, finding that as the supervising anesthesiologist, he maintained responsibility for the anesthesia care team. The defendant appealed.

A Supervising Physician’s Liability for Medical Malpractice

On appeal the defendant argued, in part, that per his usual practice as the supervising anesthesiologist, he was present when the plaintiff was placed under anesthesia and when her breathing tube was placed, he was not present for the placement or removal of either of the instruments that were stapled to the plaintiff’s stomach. Moreover, he argued that the placement or removal of those instruments did not constitute key elements of the surgical procedural, that required supervision, but that the stapling of the instruments was solely a surgical complication. Lastly, he argued there was no relationship between his alleged failure to supervise the rest of the anesthesia team and the plaintiff’s injuries.

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Most medical malpractice cases filed in New York are decided on their merits. In other words, if the case proceeds to trial, the judge or jury will ultimately decide the issue of liability and damages based on the evidence presented. In some instances, however, the outcome of a case will be determined by a party’s failure to comply with procedural rules. This was demonstrated in a recent surgical malpractice case arising out of Kings County, in which the court denied the defendant’s motion for summary judgment as untimely. If you suffered injuries because of an improperly performed surgical procedure, it is prudent to meet with a diligent Syracuse surgical malpractice attorney to discuss what damages you may be able to recover.

Factual and Procedural Background of the Case

It is reported that the plaintiffs, husband, and wife, filed a medical malpractice lawsuit against the defendants after the defendants allegedly lost a prosthetic part in the plaintiff husband’s body during a hip replacement surgery. After the completion of discovery, the defendants filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims. The plaintiffs did not file a response to the defendants’ motion but instead filed a motion asking the court to dismiss the defendants’ motion as untimely. The court granted the plaintiffs’ motion to reject the defendants’ motion due to its untimely nature and denied the defendants’ motion as academic. The defendants subsequently filed an appeal.

Time Limits for Filing a Motion for Summary Judgment

Under the New York laws of civil practice, courts have the discretion to impose deadlines for when either party can file a motion for summary judgment, with the caveat that the deadline cannot be more than thirty days earlier or one hundred and twenty days later than the filing of the note of issue, unless leave of court is shown or good cause is established. In Kings County, the rules provide that a party must move for summary judgment within sixty days of when a note of issue is filed unless the party seeks leave of court or shows good cause for an untimely filed motion.

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In some cases in which a person is harmed by negligent treatment, multiple providers will participate in the person’s care, but not all of the providers will contribute to the person’s harm. Thus, it is not uncommon for either party to seek to depose non-party physicians as fact witnesses. There are limitations regarding what information can be elicited from a physician who is not an expert or a party, however, as demonstrated in a recent surgical malpractice case arising out of Bronx County.  If you sustained damages due to an inappropriately performed surgery, it is wise to speak with a proficient Syracuse surgical malpractice attorney regarding what evidence is available to support your claims.

The Deposition of the Non-Party Physician

Allegedly, the plaintiff’s decedent underwent an elective knee replacement at the defendant hospital. Following the surgery, the decedent was transferred to a recovery room where he became unresponsive. The decedent was resuscitated, but he ultimately died due to an anoxic brain injury. His estate subsequently filed a medical malpractice lawsuit against the hospital and the defendant that performed the surgery. During discovery, the plaintiff’s counsel deposed the anesthesiologist that attended the decedent’s surgery. The defendants’ counsel objected to several questions presented to the anesthesiologist and directed her not to answer. Thus, the plaintiff sought a court order directing the anesthesiologist to answer.

Information Discoverable from a Non-Party Physician in a Medical Malpractice Case

Pursuant to the New York laws of civil procedure, counsel should be permitted to question witnesses at depositions freely, and any question posed should be answered unless the question is clearly improper or seeks privileged information. For example, in a malpractice action, it is improper to question a physician regarding the quality of care provided by another physician, if the question does not pertain to the potential negligence of the physician being questioned. If the question simply refers to the treatment offered by another physician, though, the physician being deposed cannot refuse to answer.

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