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.
Determining the Locations of Depositions in Malpractice Cases
In New York, a court may issue a protective order regulating discovery, including depositions, as needed to prevent expense, unreasonable annoyance, prejudice, or disadvantage to any person. A trial court has broad discretion in regulating discovery, and its determinations will generally not be disturbed, absent a showing of an abuse of discretion.
The appellate court explained that the deposition of a party would typically occur in the county in which an action was filed. There are exceptions, however, in cases in which a party demonstrates that sitting for a deposition in that county will pose an undue hardship. In the subject case, the appellate court found that the record showed that the plaintiff sought to depose the defendant and four other individuals who were present during her surgery. The depositions were slated to last three days, in a location 350 miles from where the deponents were located.
The appellate court stated that allowing the depositions to be conducted in the county in which the case was filed would require several patient appointments and surgeries to be canceled, which would likely affect the patients adversely. Additionally, the plaintiff would suffer minimal prejudice, if any, if the depositions were relocated. Thus, the trial court ruling was affirmed.
Speak with an Experienced Syracuse Attorney
Surgical errors can cause significant emotional and physical harm, and doctors that negligently perform surgery should be held accountable. If you were hurt by the incompetence of your doctor, the experienced Syracuse surgical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers can assess the facts of your case and advise you of what damages you may be able to pursue. You can reach us via our form online or by calling 315-479-9000 to set up a conference.