Syracuse Medical Malpractice and Personal Injury Lawyer Blog

Sufficiency of Expert Reports in Medical Malpractice Cases in New York Discussed

Published on: September 17, 2020 | By DeFrancisco & Falgiatano

While it is uncommon, men can be diagnosed with breast cancer. Regardless of whether a person diagnosed with breast cancer is male or female, it is a serious disease that requires aggressive treatment. As such, it is critical to obtain an accurate diagnosis as promptly as possible. Thus, a doctor that fails to diagnose a male patient with breast cancer in a timely manner may be sued for medical malpractice. Recently, a New York appellate court discussed the standards imposed on expert affidavits in support of and in opposition to a motion for summary judgment in a case in which the plaintiff sued his primary care physician for failing to diagnose his breast cancer. If you sustained an injury or suffered the worsening of illness due to your doctor’s failure to provide you with the correct diagnosis, it is prudent to speak to a dedicated Syracuse primary care malpractice lawyer to assess your case.

Factual History

It is alleged that the plaintiff was a patient of the defendant primary care physician and regularly treated with her at the defendant practice. The plaintiff, who is male, regularly complained of breast pain and other breast-related symptoms. The defendant did not order diagnostic imaging or any other tests, however. Ultimately, the plaintiff was diagnosed with breast cancer. He then filed a medical malpractice case against the defendants due to their failure to diagnose him when his symptoms first presented. Following discovery, the defendants filed a motion to dismiss, which the plaintiff opposed. The trial court denied the motion, and the defendants appealed. Following a review, the appellate court affirmed the denial.

Sufficiency of Expert Reports in Medical Malpractice Cases in New York

In seeking a dismissal of a plaintiff’s case via summary judgment, a defendant bears the burden of proving, prima facie, that she or he did not depart from the standard of care or that if a departure did occur, it did not proximately cause the plaintiff’s harm. In the subject case, the court found that the defendants’ expert affidavit only addressed the issue of whether the defendants deviated from the applicable standard. In other words, it only briefly mentioned causation in a conclusory manner. Continue Reading ›

Court Discusses the Scope of Permissible Discovery in Medical Malpractice Cases in New York

Published on: September 14, 2020 | By DeFrancisco & Falgiatano

In medical malpractice cases, even if plaintiffs believe they were harmed by negligent medical care, they need evidence to support their claims. In many instances, the evidence sought is testimony from the parties that cared for or observed the care of the plaintiff. Thus, if a person with information regarding the plaintiff’s treatment and symptoms refuses to testify, it can frustrate the plaintiff’s attempts to obtain relevant information. Recently, a New York appellate court discussed the scope of permissible discovery in a hospital malpractice case in which a non-defendant physician refused to answer certain questions during his deposition. If you were injured because of inadequate care in a hospital, you might be owed compensation and should contact a capable Syracuse hospital malpractice attorney to evaluate your possible claims.

History of the Case

Allegedly, the plaintiff was a patient at the defendant hospital. Due to the negligence of the defendant and numerous staff members, who were also named as defendants, he suffered significant injuries, including pressure ulcers and an amputation of his left leg above the knee. As such, the plaintiff filed a medical malpractice lawsuit against the defendants.

It is reported that during the discovery phase of the case, the plaintiff deposed a doctor who worked in the division of wound healing at the defendant hospital. The doctor, however, refused to answer certain questions. The plaintiff’s attorney then obtained an order from the court, allowing him to continue the deposition of the witness. The witness then sought a protective order asking the court to limit the scope of the deposition, which the court granted as well. The plaintiff then appealed the second order.

New York Court Discusses Elements of a Lack of Informed Consent Claim

Published on: September 8, 2020 | By DeFrancisco & Falgiatano

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.

Dismissal of Medical Malpractice Case in New York Demonstrates the Need for Expert Reports

Published on: August 28, 2020 | By DeFrancisco & Falgiatano

It is the well-established law in New York that a plaintiff that wishes to recover damages through a medical malpractice case against a defendant must do more than merely allege that the defendant caused the plaintiff’s harm. Rather, in all cases except those involving blatant negligence, the plaintiff must produce an expert report that establishes the defendant’s liability. Thus, if a plaintiff fails to produce expert testimony, it will typically result in the dismissal of his or her claims, as shown in a recent ophthalmology malpractice case in New York. If you sustained injuries due to negligent care rendered by an eye doctor, it is advisable to confer with a seasoned Syracuse ophthalmology malpractice attorney to assess your possible claims for damages.

Facts of the Case

It is reported that the plaintiff was treated at a facility that was funded by the federal government for retinopathy and macular edema in both eyes. The doctors at the facility routinely provided the plaintiff with injections in both eyes. Following one of the injections in 2016, his left eye became swollen, and he began experiencing light sensitivity and pain. His symptoms lasted about ten days and then resolved. Following injection in 2017, however, he again experienced adverse effects. He was then diagnosed with dry eye syndrome and a disorder that caused opacities in both eyes.

Allegedly, the doctor who administered the injections then advised the plaintiff that it was possible that he had allergic reactions to the injections. The plaintiff then filed a medical malpractice lawsuit against the federal government in federal court, alleging the negligence of the doctors at the facility caused him to suffer pain, obstructions to his vision, and diminished sight. The defendant filed a motion for summary judgment, which the court granted due to the plaintiff’s failure to provide an expert report.

New York Court Discusses Statute of Limitations for Wrongful Death Claims in Malpractice Suits

Published on: August 20, 2020 | By DeFrancisco & Falgiatano

Medical malpractice cases in New York, like all other New York cases, must be filed within the timeframe proscribed by the statute of limitations, otherwise, the plaintiff may lose the right to recover compensation. While medical malpractice claims must be commenced within two and a half years from the date of harm, when a lawsuit is instituted after the injured party’s death, there may be a dispute over when the statute of limitations begins to run. This was demonstrated in a recent New York case in which the plaintiff’s decedent died due to complications from cancer. If you were diagnosed with cancer and subsequently sustained injuries due to the carelessness of the doctor responsible for your treatment, it is important to speak to a skillful Syracuse oncology malpractice attorney promptly to avoid waiving your right to recover damages.

Factual and Procedural History

Allegedly, the plaintiff’s decedent was treated by the defendants for cancer. He ultimately passed away due to complications related to his cancer in August 2015. In May of 2016, the plaintiff instituted an action against the defendants alleging claims of medical malpractice and wrongful death arising out of their treatment of the decedent. Specifically, the complaint alleged the defendants were negligent during the decedent’s hospitalization in July and August 2013. The defendants filed a motion to dismiss the plaintiff’s lawsuit, arguing that her claims were barred by the statute of limitations. The trial court granted the motion, and the plaintiff appealed.

Statute of Limitations in New York for Wrongful Death Claims in Malpractice Suits

Under New York law, when someone entitled to pursue a claim dies, the representative of his or her estate can pursue a claim on behalf of the estate within one year of the person’s death. In the subject case, the plaintiff demonstrated that she was granted letters of administration in February of 2016, and she commenced the claim by May of 2016. As such, the appellate court ruled that she pursued her claims within the time afforded by law.

New York Court Discusses Dismissal of Medical Malpractice Claims for Failure to Prosecute

Published on: August 18, 2020 | By DeFrancisco & Falgiatano

Generally, in a medical malpractice case in New York, it is the plaintiff’s duty to move the case forward. Thus, if the plaintiff fails to pursue his or her claims against the defendant, it may result in a dismissal. Recently, a New York court discussed when the dismissal of a medical malpractice claim for failure to prosecute is warranted in a case in which the plaintiff failed to comply with an order directing her to file a note of issue. If you were hurt by reckless or negligent medical care, it is in your best interest to speak to a Syracuse medical malpractice attorney to discuss what steps you must take to prove liability for your harm.

Facts and Procedural History of the Case

The facts of the case are sparse. It is reported, however, that the plaintiff filed a medical malpractice lawsuit against numerous defendants. Ultimately, the trial court issued an order directing the plaintiff to file a note of issue. The plaintiff did not comply with the court’s directive, however. As such, the defendants each individually filed motions to have the plaintiff’s claims against them dismissed, and the plaintiff filed a motion to extend the time to file a note of issue. The trial court granted the defendants’ motions, thereby terminating all of the plaintiff’s claims. The plaintiff then appealed.

Dismissal of a Case for Failure to File a Note of Issue

On appeal, the court reversed the trial court ruling and granted the defendant’s motion for additional time to file the note of issue. The court noted that while a plaintiff’s failure to abide by a court order directing her to file a note of issue may provide grounds for the dismissal of a complaint, a court is barred from dismissing an action based on the plaintiff’s failure to prosecute claims against the defendant unless certain statutory conditions are met. For example, under the applicable statute, a 90-day demand to file a note must be served on the plaintiff. Thus, either the defendant or the court must file a 90-day demand to file a note of issue before a court is permitted to dismiss a lawsuit for failure to prosecute.

New York Court Denies Petition to Serve Late Notice of Medical Malpractice Claim

Published on: August 15, 2020 | By DeFrancisco & Falgiatano

While delays may greatly impair a patient’s health, they may also impair the patient’s right to pursue damages for negligent treatment. For example, a patient harmed by a doctor’s delay in prescribing diagnostic testing may lead to a delayed diagnosis, which can cause irreparable harm to the patient’s health. Similarly, if a patient that has been harmed by a doctor’s failure to provide a timely diagnosis does not provide the defendant with the proper notice of a potential claim or pursue claims against the defendant in a timely manner, it may permanently impair the plaintiff’s ability to recover damages, as demonstrated in a recent hospital malpractice case. If you were harmed by the careless acts of hospital employees, it is advisable to confer with a talented Syracuse hospital malpractice attorney as soon as possible to avoid waiving your right to pursue compensation.

Facts of the Case

It is reported that the plaintiff visited the defendant hospital with complaints of breast symptoms. While she was there, she was examined by the defendant gynecologist and released. The plaintiff was ultimately diagnosed with breast cancer four months later. She then proceeded to file a medical malpractice claim against the defendants, arguing they caused her to suffer significant harm by failing to diagnose her in a timely manner and failing to refer her to obtain the diagnostic testing required to assess an accurate diagnosis.

Allegedly, however, the plaintiff did not file her lawsuit until approximately nine months after the alleged harm. As such, she petitioned the court for leave to serve late notice of her claim. The trial court granted the plaintiff’s petition, after which the defendants appealed. On appeal, the court reversed the trial court ruling and dismissed the plaintiff’s claims.

New York Court Discusses Evidence Demonstrating Medical Malpractice

Published on: August 7, 2020 | By DeFrancisco & Falgiatano

In some instances, the negligence of a medical professional is so egregious that it is clear it constitutes medical malpractice. In such cases, while it may not be disputed that the standard of care was breached, there may be disagreement as to which party was liable for the breach, and ultimately for the plaintiff’s harm. This was demonstrated in a recent gynecologic malpractice case in which the plaintiff suffered harm due to a one year delay in receiving the results of a breast biopsy. If you suffered harm due to a gynecological error, it is prudent to speak with a zealous Syracuse gynecologic malpractice attorney to discuss your potential claims.

Facts of the Case

It is reported that the majority of the facts of the case are undisputed. Specifically, the plaintiff was a patient of the defendant gynecologist. Following her annual visit, she was referred to the defendant radiologist for a biopsy. After the biopsy was performed, the specimen was sent to the defendant lab, where it was analyzed and determined to show cancerous cells. The defendant lab faxed the test results to the defendant physician that performed the biopsy, who then faxed a report to the defendant gynecologist, stating that the procedure had been performed and reporting the positive findings.

Allegedly, approximately one year later, the defendant gynecologist again referred the plaintiff for a biopsy, after which he was faxed the pathology report from the initial biopsy. He then finally advised the plaintiff of the results of her initial biopsy. The plaintiff subsequently filed a medical malpractice lawsuit against the defendants. The defendant lab filed a motion to dismiss, arguing that the plaintiff could not recover against it under the undisputed facts of the case. The court ultimately denied the motion.

Court Discusses Grounds for Modifying a Jury’s Damages Award in a Medical Malpractice Case in New York

Published on: July 28, 2020 | By DeFrancisco & Falgiatano

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.

New York Court Discusses Grounds for Granting Leave to Renew Opposition to Dismissal of a Medical Malpractice Case

Published on: July 23, 2020 | By DeFrancisco & Falgiatano

It is not uncommon for a defendant in a medical malpractice case in New York to seek dismissal of the plaintiff’s case via a motion for summary judgment. When a plaintiff’s claims are dismissed by a court via summary judgment, the plaintiff may be able to appeal if the evidence of record demonstrates the court ruled incorrectly. If a plaintiff fails to produce evidence in opposition to a motion for summary judgment, though, he or she must file a motion for leave to renew to ask the court to consider the new evidence. In a recent emergency room malpractice case, a New York court discussed the grounds for granting a motion for leave to renew following the dismissal of a claim. If you were harmed by negligent care in an emergency room, it is advisable to engage a knowledgeable Syracuse emergency room malpractice attorney who will gather the evidence needed to provide you with a strong chance of a winning outcome.

Factual History

It is reported that the plaintiff visited the emergency department of the defendant medical center for a laceration on his right hand. While he was at the defendant medical center, he was treated by a physician’s assistant. Due to unspecified harm, the plaintiff eventually filed a medical malpractice claim against the defendant. The defendant ultimately filed a motion for summary judgment. In opposition to the motion, the plaintiff produced an expert affidavit from an orthopedist. The court granted the motion for summary judgment. The plaintiff then filed a motion for leave to renew his opposition to the defendant’s motion for summary judgment and attached an expert affidavit from a physician’s assistant. The court denied the plaintiff’s motion, and the plaintiff appealed.

Grounds for Granting a Motion for Leave to Renew

In New York, a motion for leave to renew must be based on new facts that were not presented in the prior motion, but that are sufficient to change the court’s prior ruling. It is within the court’s discretion as to whether to grant a motion that arises out of facts that were within the moving party’s knowledge at the time of the prior motion. Regardless of whether the motion is based on facts that were known to the moving party at the time of the original motion, however, the motion for leave to renew must nonetheless set forth a reasonable justification for failing to present such facts during the pendency of the prior motion.