To avoid liability in a medical malpractice case in the New York court system, the medical care provider must prove that he or she did not deviate from the accepted standards of care and practice. The plaintiff can refute this claim by producing an expert who will testify that the provider did, in fact, deviate from the accepted standard for care, and the deviation caused the plaintiff’s harm.
If the plaintiff is unable to produce an expert to testify with a reasonable degree of certainty that the provider breached the standard of care, the plaintiff’s case will be dismissed, as shown in a recent case in the New York courts, in which the plaintiff alleged he was injured during a colonoscopy. If you were injured during a standard medical procedure, you should speak with a seasoned Syracuse medical malpractice attorney to analyze whether you may be able to seek damages from the negligent care provider.
It is alleged that the plaintiff underwent a colonoscopy in June 2016. The colonoscopy, which was performed for screening purposes, did not indicate any significant issues. Following the colonoscopy, the plaintiff was observed in the recovery room for several hours. He reported abdominal pain and discomfort, but did not vomit, and was discharged the same day. A few days later, he followed up with his primary care physician, reporting heartburn, nausea, and dyspepsia, and was prescribed an antacid. The following day he went to the emergency room, where he was diagnosed with a perforated colon and underwent a colectomy. The plaintiff subsequently filed a medical malpractice lawsuit against the doctor that performed the colonoscopy, alleging the defendant negligently performed the colonoscopy and failed to diagnose the plaintiff’s perforated colon. The defendant filed a motion for summary judgment, alleging the plaintiff could not prove he deviated from the standard of care.
Shifting Burden of Proof Regarding the Standard of Care
In a medical malpractice case, a defendant seeking summary judgment must provide evidentiary proof in the form of an expert report stating that the defendant did not deviate from the accepted standard of care and therefore, did not cause the plaintiff any harm. If a defendant provides such evidence, the burden then shifts to the plaintiff to produce evidence sufficient to show an issue of fact as to whether the defendant breached the standard of care. Mere allegations of medical malpractice are insufficient to establish a breach of the standard of care, however.
Here, the defendant produced an expert report stating that while a perforation is a known risk of a colonoscopy, there was no evidence to suggest that the perforation occurred during the colonoscopy and that even one did occur during the colonoscopy it was the result of malpractice. Additionally, the plaintiff’s expert’s report stated that the perforation must have occurred during the colonoscopy because no other explanation was reasonable, and conceded that a perforation in and of itself was not evidence of malpractice. As such, the court found that the plaintiff’s expert as to the cause of the perforation was mere speculation and was not sufficient to create an issue of fact. As such the court granted the defendant’s motion for summary judgment.
Contact an Experienced Syracuse Medical Malpractice Attorney Regarding Your Case
If a standard procedure is not performed properly, it can result in significant harm. If you sustained an injury or illness due to an improperly performed procedure, you should contact an experienced Syracuse medical malpractice attorney to develop a course of action for seeking damages from the party that caused you harm. The knowledgeable medical malpractice attorneys of DeFrancisco & Falgiatano will aggressively advocate on your behalf to help you pursue any compensation you may be owed. Contact us at 833-200-2000 or through our online form to set up a free and confidential consultation.
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Pathology Malpractice Claim in New York Illustrates Importance of Expert Witness Testimony, Syracuse Medical Malpractice and Personal Injury Lawyer Blog, September 8, 2017