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New York Court Denies Leave to Amend Complaint to Include Lack of Informed Consent Claim

Many people who serve in the military obtain medical treatment through governmental health systems. Doctors employed by the government are required to comply with the same standard of care imposed on other physicians, and if they do not, they can be held accountable for any harm they cause. A plaintiff alleging a government employee committed medical malpractice is held to a different requirements than those pursuing claims against private workers, however, and if they do not comply with them, their claims may be dismissed. In a recent ruling, a New York court explained the obligations imposed on a person pursuing claims against the government in a case in which the plaintiff alleged losses due to the negligence of her plastic surgeons. If you suffered injuries during a cosmetic procedure, you should speak to a Syracuse plastic surgeon malpractice lawyer to discuss what you must prove to recover damages.

The Plaintiff’s Harm

It is reported that the plaintiff, a former member of the United States armed forces, suffered a back injury in 2009. She was treated at a hospital owned by the defendant government agency for back pain, neck pain, and headaches caused by her injury. Doctors employed by the defendant advised her that if she underwent a breast reduction, it would lessen her symptoms. She ultimately underwent a bilateral breast reduction which was performed by the defendant’s doctors. Following the surgery, she experienced pain, deformities, and significant scarring.

Allegedly, the plaintiff submitted an administrative claim to the defendant, setting forth the basis of her claim and the injuries sustained. She did not, however, indicate that she intended to pursue damages for lack of informed consent. The defendant denied her claim, after which she filed a lawsuit seeking damages for medical malpractice. She then moved to amend her complaint to include a claim for lack of informed consent.

Pursuing Claims Under the Federal Tort Claims Act

The court denied the plaintiff’s motion, finding that she failed to exhaust her administrative remedies as required by the Federal Tort Claims Act (the Act). The court explained that the United States is generally immune from liability and can only be sued to the extent it has waived its immunity by enacting a law in which it consents to suit. The Act waives the government’s immunity in part and permits it to be sued in certain situations.

A condition of the waiver under the Act, and a prerequisite for a court’s exercise of jurisdiction, is the exhaustion of administrative remedies. In the subject case, while the plaintiff submitted a claim to the defendant, it did not include allegations pertaining to lack of informed consent. Thus, the court found that she failed to exhaust her administrative remedies with regard to that claim and denied her motion.

Meet with a Trusted Syracuse Medical Malpractice Attorney

Although plastic surgeons perform elective procedures, they nonetheless must perform them with care and skill, and if they deviate from the standard of care, it may constitute cosmetic malpractice.  If you were hurt during a procedure performed by a plastic surgeon, it is in your best interest to meet with an attorney. The trusted attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers can advise you of your rights and employ their skills and resources to help you pursue the best legal outcome possible under the facts of your case. We can be reached via our form online or by calling us at 833-200-2000 to set up a conference.


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