Articles Posted in Surgical Malpractice

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stomachWeight loss surgeries such as gastric bypass surgery have gained immense popularity in recent years. If it is not performed properly, gastric bypass surgery can have devastating effects on patients and their families. If you or a loved one has been injured during or as a result of a gastric bypass procedure, you may be entitled to compensation for your harm. At DeFrancisco & Falgiatano Personal Injury Lawyers, our Syracuse medical malpractice attorneys can scrutinize the facts of your case and determine the viability of your claim. You can rest assured that we are here to protect your rights at every step of the way.

Gastric bypass surgery refers to a procedure that helps an individual lose weight by changing how the stomach and intestine handle the food that a person eats. The surgery generally involves making a small stomach and removing the rest of the stomach. The small intestine is then attached to the new stomach, permitting the lower part of the stomach to be bypassed. After the surgery, the stomach is smaller, and individuals feel full with less food.

Unfortunately, injuries and deaths associated with gastric bypass procedures are more common than you may think. According to a study in the Journal of the American Medical Association, 2 percent or one in every 50 gastric bypass surgery patients died within 30 days of their operations. The report also found that 5 percent or one in 20 died within a year – the complications ranging from infection and incisional hernia to ulcers and blood clots in the lungs.

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anesthesiaAnesthesiologists play a vital role in keeping patients safe during surgical procedures. If you or a loved one has suffered harm due to an anesthesia error, you may be entitled to compensation for your harm. At DeFrancisco & Falgiatano Personal Injury Lawyers, our skilled Syracuse anesthesia malpractice attorneys understand the serious consequences that can result from such errors, which is why are committed to providing aggressive yet compassionate representation at every step of the way. You can rest assured that we are here to answer your questions and address your concerns.

Whether it is a local anesthetic or a general anesthetic that puts you to sleep, the goal of anesthesia is the same:  to reduce or prevent pain and allow physicians to work. While the use of anesthesia is normally safe, mistakes involving anesthesia can lead to serious injuries and even death. Anesthesia errors affect many people in New York and throughout the United States each year. In fact, the Joint Commission on Accreditation of Healthcare Organizations states that 21,000 to 42,000 Americans experience anesthesia awareness each year – a condition in which the intended state of complete unconsciousness is not maintained throughout the whole surgical procedure. In other words, the patient can recall the surroundings or an event related to the surgery while under general anesthesia. Other examples of anesthesia errors include:

  • Dosage error (too much or too little);
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surgeryWhen we visit a hospital, clinic, or other medical facility, we expect that any instruments used will be sterilized. If you or someone close to you has been adversely affected by contaminated instruments, it is imperative to reach out to a knowledgeable Syracuse surgical malpractice attorney who can help. At DeFrancisco & Falgiatano Personal Injury Lawyers, we understand how dirty instruments can cause serious health problems, such as infections and illnesses. You can rest assured that we will analyze the facts of your case and help you mount a strong case for financial compensation.

Unfortunately, the use of contaminated instruments may be more common than you think. According to a pilot program conducted by the Centers for Medicare and Medicaid Services, out of 1,500 outpatient surgery centers that were inspected, about 28 percent were cited for infection control deficiencies related to surgical instrument cleaning and sterilization. Using unclean instruments can lead to a number of adverse consequences, including infections, loss of limb, and even death.

Hospitals have a duty to make sure that germs, disease, and contamination are kept in check through proper sterilization methods. When a dirty instrument injures a patient, that patient may be able to recover compensation through a medical malpractice claim. Medical malpractice is defined as a failure to render care or treatment in accordance with the accepted standards of medical practice. In other words, medical malpractice takes place when a person or entity causes a patient harm by deviating from the level of care that a reasonably prudent person or entity would have used in the same or a similar situation. For example, a hospital adhering to the accepted standard of care would have a system in place to ensure each instrument was sterilized before it was used on a patient. As a result, a hospital that caused a patient harm by failing to do this would likely be liable for malpractice.

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backacheWe trust medical professionals to provide competent care, but the unfortunate reality is that mistakes do happen. Spinal cord injuries due to medical malpractice can have devastating consequences for a patient’s life. If you or someone close to you has suffered a spinal cord injury due to a medical professional’s negligence, our Syracuse medical malpractice attorneys can help. At DeFrancisco & Falgiatano Personal Injury Lawyers, we are committed to helping our clients pursue the compensation they need to move on with their lives.

The spinal cord is the column of nerve tissue protected by the spine and is in charge of delivering messages from the brain to the rest of the body. Our spinal cords are fragile, and injuries to this part of the body can lead to serious damage to the nervous system. As a result, spinal cord injuries often result in a disability and even partial or total paralysis. According to the Centers for Disease Control and Prevention (CDC), about 11,000 people sustain spinal cord injuries each year. Unfortunately, some of these spinal cord injuries are results of medical malpractice.

Under New York law, medical malpractice occurs when a medical professional breaches the accepted standard of care, which then causes injuries to the patient. The standard of care refers to the level of care that another medical professional in the same specialty would have used under the same or similar circumstances. The standard of care will vary in each case depending on a number of factors, including the patient’s age and medical history. It is not enough to show that a medical professional breached the duty of care; a plaintiff must also show that the breach was a direct and proximate cause of his or her injury. This is typically established through the testimony of an expert witness.

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Surgical ProcedureMedical malpractice claims require testimony from expert witnesses in order to articulate the relevant standard of care for the medical professional who allegedly committed the negligent act. Not all expert testimony is admissible in New York medical malpractice cases. In fact, the United States Supreme Court articulated several factors that expert testimony must meet in order to be admissible. A November 16, 2017 decision, Norman v. All About Women PA, et al., case number K14C-12-003, reviewed an expert’s testimony on the standard of care in a medical malpractice lawsuit.

The plaintiff went to a clinic and received a diagnostic laparoscopy procedure, and during the operation, her bladder was punctured. She also alleged that the doctor closed her up without fixing the wound, requiring additional surgeries and hospital visits. The plaintiff filed a medical malpractice lawsuit and offered the expert testimony of a doctor to define the relevant standard of care broadly accepted within the medical community.

New York law has two primary elements in medical malpractice lawsuits. The plaintiff must establish that the actions of the medical professional deviated from the accepted standard of care and that such a deviation caused an injury to the plaintiff.

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MRIWhen it comes to surgery, timing can be everything. If the body reacts in unexpected ways to a surgical procedure, the physician performing the operation needs to react quickly in order to prevent long-term injuries or even death. It’s unfortunate, but instances of New York surgical malpractice are not uncommon. In a recent surgical malpractice case, the plaintiff alleged that he suffered permanent injuries because the surgeon performing the operation failed to act fast enough and caused permanent injuries.

The plaintiff was admitted to a medical center to treat what doctors speculated was a spinal epidural abscess. This condition involves the build-up of pus in the spine. The result is a compressed spinal cord and can be treated by antibiotics or, alternatively, by draining the build-up of pus. The medical center’s resident physician was assigned to the plaintiff’s care, and he correctly surmised that the plaintiff had a spinal epidural abscess before he consulted with another doctor.

What the plaintiff alleged in the lawsuit was troubling. Even though the assigned physician had initially speculated that the plaintiff had an abscess, the physician allegedly did not order an MRI or another method to confirm the diagnosis. In addition, he did not seek to remove the abscess until the plaintiff could no longer move his legs.

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Clipboard

Mandatory arbitration provisions in contracts are becoming increasingly common. The United States Supreme Court has viewed them favorably. Most notably, the landmark decision AT&T Mobility LLC v. Concepcion held that the Federal Arbitration Act of 1925 preempts other laws that restrict companies from requiring customers to rely on mandatory arbitration. Medical practices also use mandatory arbitration provisions, although they prevent those injured by medical negligence from filing a lawsuit in the courts system. Since this case involves federal law, it is applicable to people injured by New York medical negligence as well.

The United States Supreme Court declined to hear an appeal of a North Carolina Supreme Court decision that struck down a mandatory arbitration provision signed by a patient, who later alleged medical malpractice against his physician. The plaintiff was an elderly man, who had a limited education and was rarely asked to read for his work. When he arrived at the doctor’s office, he was given a stack of forms, which included medical history information, along with the mandatory arbitration form. No one in the doctor’s office explained the form to him, nor told him it was optional. The plaintiff simply assumed that the document was a formality.

The plaintiff later underwent hernia surgery. There were complications with the surgery, and the plaintiff had to undergo additional surgeries to prevent the amputation of his leg. The plaintiff filed a lawsuit for medical malpractice, but the defendant moved to have it dismissed on the ground that it was subject to mandatory arbitration. After a series of appeals, the North Carolina Supreme Court eventually heard the case.

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Scalpel SurgeonMedical malpractice cases rely heavily on expert medical opinions because negligence is established by the breach of a physician’s standard of medical care. Not all expert testimony is admissible at trial, however. Each jurisdiction maintains rules of evidence to guide which sort of expert testimony is admissible. For example, NY CPLR Section 4515 sets forth the rules for admitting expert testimony in New York medical malpractice cases.

In a recent case, a plaintiff sought the services of a plastic surgeon and underwent abdominoplasty, also known as a “tummy tuck,” at the age of 57. The plastic surgeon later conducted multiple unsuccessful scar revisions, but the surgeries were botched. The plaintiff’s plastic surgeon refunded her medical expenses.

The plaintiff sought the treatment of other doctors to help correct the botched tummy tuck. Eventually, the plaintiff consulted with the defendant in the case, who recommended a less invasive, in-office procedure, which she underwent in June 2008. In several follow-up appointments, the plaintiff complained of abdominal pain and vaginal irritation. The plaintiff was referred to another doctor, who diagnosed her with an umbilical hernia, and she filed a lawsuit against the surgeon who performed the less invasive procedure.

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Medical malpractice claims generally require the testimony of an expert witness in order to determine negligence and causation. The testifying expert is crucially important to the presentation of a case, in addition to having the requisite medical credentials and experience to opine on the evidence reviewed. A recent appeals court decision from New Jersey considers whether a treating physician can testify for the defendant. The decision certainly has potential implications for New York medical malpractice law.

Surgical Mask

The defendant performed surgery on the plaintiff to extract an organ by means of  a specific, though risky, surgical procedure. The parties agreed that during the surgery, the defendant sliced the incorrect area, causing an injury to the plaintiff. The issue before the court was whether this injury was a risk to which the patient consented prior to surgery, or instead a breach of the defendant’s standard of care.

Several days following the surgery, the plaintiff went back to an emergency room in New York with vomiting symptoms. Another surgeon performed emergency surgery on the plaintiff and discovered that her bile duct had been severed. This surgeon who repaired the bile duct later testified at a deposition that in his opinion, the defendant did not deviate from the standard of care. The plaintiff appealed a lower court ruling, arguing, in part, that the testimony of the operating physician was prejudicial to the plaintiff’s case.

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Dollar Bill

Defendants who lose medical malpractice cases at trial may have grounds to appeal the jury’s decision. Although the level of an appeals court’s discretion varies, the standard of review often requires a certain level of deference to the jury’s decision, and as a result, studies show that more cases are affirmed on appeal than overturned. That was not the outcome, however, in a recent New York medical malpractice case, in which the court decided that the $3.1 million awarded to the plaintiffs at trial was excessive.

The trial court ruled that the defendant, St. Peter’s Hospital, departed from the standard of care for accepted medical practice when two nurses failed to carry out a doctor’s order to conduct a CCT scan to rule out a lumbar bleed. This departure from the standard of care was determined to be a substantial factor in causing the plaintiff’s injury. The jury awarded the plaintiffs $3.1 million, $2.3 million of which was allocated to the plaintiff’s pain and suffering and $750,000 of which was allocated to loss of consortium.

The defendant appealed the decision. The appeals court first considered whether a new trial could be granted for the defendant. New York law provides that the court may only set aside a jury verdict if the verdict is not supported by legally sufficient evidence. The defendant asserted that the plaintiffs’ expert allegedly perjured herself by signing an affidavit regarding the issue of proximate cause when she lacked such qualifications. The appeals court noted that the jury decided this issue at trial and that therefore the court declined to grant the defendant’s motion for a new trial.

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