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Within the confines of the applicable rules, people harmed by medical malpractice have the right to choose where to pursue claims against the health care providers that caused their harm. In many instances, it is preferable for a plaintiff to file a medical malpractice lawsuit in federal court for a variety of reasons. In some cases, though, a defendant can remove the case to federal court, even if the plaintiff wants it to remain in state court. Defendants must prove certain criteria to show a removal to federal court is proper, however, and if they do not, their cases will be remanded back to state court. This was demonstrated in a recent surgical malpractice matter, in which the court ruled that the defendants failed to show the removal was proper. If you were hurt by an incompetent surgeon, you may be able to recover compensation, and it is prudent to speak to a knowledgeable Syracuse surgical malpractice lawyer as soon as possible.

History of the Case

It is reported that the plaintiffs filed a medical malpractice action against the defendant corporations and physicians, alleging medical malpractice and other claims arising out of harm suffered following a surgical procedure. The complaint was filed in State court and alleged that the defendants and plaintiffs were all residents of New York. The defendants then filed a notice of removal on the grounds of diversity jurisdiction.

Allegedly, the defendants argued, in part, that some of the defendants had been improperly joined in order to destroy diversity jurisdiction and that there was complete diversity between the parties that were properly joined. The plaintiff filed a motion, asserting that the case could not be removed when one of the defendants was a resident of the forum state.

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Cosmetic surgery is typically elective, but it nonetheless carries the same risks as other procedures. For example, if a surgeon does not take the proper precautions, a patient may suffer infections, adhesions, or other harm. Patients harmed by the negligence of plastic surgeons typically have the right to pursue damages via medical malpractice claims unless they expressly waive their rights via a contractual release. The grounds for enforcing a release in a medical malpractice case were recently discussed by a New York Court, in a ruling in which the plaintiff’s claims were dismissed. If you were harmed by the negligence of a plastic surgeon, you could be owed compensation, and it is in your best interest to meet with a seasoned Syracuse surgical malpractice lawyer to assess your options.

The Plaintiff’s Harm

It is reported that the plaintiff received a buttock augmentation at the defendant facility. Following the procedure, she developed an infection and bleeding at the operative site. She had to undergo additional procedures and was prescribed narcotic pain medication. She subsequently contacted the defendant and requested a refund of her payment for the procedure. The defendant agreed but required her to sign a release prior to granting her the refund. The plaintiff then filed a medical malpractice lawsuit against the defendant. The defendant ultimately moved for summary judgment, arguing that the release barred the plaintiff’s claims. The plaintiff opposed the motion, but the court granted it regardless.

Enforceability of Releases in Medical Malpractice Cases

Upon review, the court explained that, under New York law, a valid release that is unambiguous and clear on its face will be enforced as a private agreement between the parties, as long as it was entered into knowingly and voluntarily. In other words, absent evidence of duress, fraud, undue influence, or another valid defense, a release will be binding on the parties that signed it. Continue reading

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Doctors frequently work for other physicians or facilities. As such, if a physician’s carelessness causes harm, the injured party may not only be able to pursue claims against the doctor but also the party that employed him or her. In a recent New York opinion, the court explained what a plaintiff must establish to prove a vicarious liability claim against a hospital for negligent care provided by a physician, in a matter where the plaintiff alleged podiatrist malpractice. If you were hurt by the carelessness of a foot doctor, you might be able to pursue claims for damages, and it is advisable to speak to a trusted Syracuse podiatry malpractice lawyer to determine your potential claims.

The Plaintiff’s Harm

It is reported that the plaintiff was referred to the defendant podiatrist by his primary care physician. The plaintiff treated with the defendant podiatrist for a laceration in his big toe. At the time, the plaintiff was working as an independent contractor for the defendant practice and the defendant physician. Due to unspecified harm, the plaintiff filed a medical malpractice lawsuit against the defendant podiatrist. He then amended the complaint to include claims against the defendant practice and physician, alleging they were vicariously liable. They ultimately moved to dismiss the claims against them via summary judgment.

Vicarious Liability for Medical Malpractice

Pursuant to the doctrine of respondent superior, a doctor or care facility may be deemed vicariously liable for the negligence of its employee. In cases in which no employment relationship exists, they may be vicariously liable under theories of agency, apparent agency, or control in fact. In the subject case, the defendant practice and physician argued they could not be deemed liable for the defendant podiatrist because he was an independent contractor and not an employee, and they did not exercise control over his work performance. Continue reading

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Expert testimony is a key component of any medical malpractice case. Specifically, both plaintiffs and defendants must produce an affidavit from a medical expert that supports their claims or defenses relying on evidence produced from the record. While the expert does not have to practice in the same specialty as the defendant, the qualifications of a doctor that works in another field must be thoroughly explained; otherwise, it may result in a dismissal. Expert qualifications were addressed in a recent New York ruling in a case in which the court dismissed the plaintiff’s medical malpractice claims, in part, due to the deficiency of her expert. If you were harmed by the care you received in a hospital, it is prudent to confer with a Syracuse hospital malpractice lawyer to assess your options.

The Plaintiff’s Harm

It is reported that the plaintiff was admitted to the defendant hospital after she suffered a stroke. She subsequently developed left sided-paralysis and other complications. She then filed a lawsuit against the defendant, alleging its employees negligently failed to adequately monitor her status or provide her with proper care and that the delayed administration of necessary medication led to her harm. After the parties completed the discovery, the defendant moved to dismiss the plaintiff’s claims via summary judgment. The court denied the defendant’s motion, after which it appealed. On appeal, the court reversed the trial court ruling.

Expert Qualifications in Medical Malpractice Cases

The court explained that, pursuant to New York law, a defendant seeking dismissal via summary judgment must prove that the evidence, on its face, shows that there was no departure from the standard of care or that any departure did not cause the plaintiff’s harm. In turn, the plaintiff must show that a material issue of fact remains regarding one or both of the defendant’s assertions. Generally, the parties establish their positions via the use of expert testimony. If either party engages an expert that is offering an opinion outside of his or her area of specialty, a foundation must be laid that supports the reliability of the opinion offered. If no such foundation is laid, the expert’s opinion lacks probative value and will be inadequate to sustain the party’s burden with regard to a summary judgment motion. Continue reading

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It is not uncommon for a facility that treats patients with substance abuse issues to employ doctors that generally oversee patient care. In many instances, such physicians have little if any contact with the patients. Diminished patient contact does not excuse them from the obligation to provide competent care, though, and doctors that render negligent treatment can be held liable for medical malpractice. Recently, a New York court issued an opinion discussing the evidence needed to establish the liability of a doctor that oversaw a patient’s care in a drug addiction treatment facility, ultimately ruling that the doctor was not accountable for the patient’s death. If you or a loved one suffered harm in a hospital, it is advisable to speak to a Syracuse hospital malpractice lawyer about your potential claims.

The Patient’s Care

It is reported that the patient was admitted to a care facility for substance abuse treatment. The defendant doctor oversaw the medical department and was responsible for the supervision of the medical staff. When the patient was admitted, a physician assistant examined her, and she was prescribed Suboxone, which the medical records indicated were per the verbal order of the defendant. The defendant never met the patient.

Allegedly, the evening after the patient’s admission, she vomited. She was examined, but no further action was taken. The following morning she was found unresponsive, and she was transported to another hospital. She later died. The patient’s parents filed a lawsuit against the defendant, alleging he committed medical malpractice. The defendant moved for summary judgment, and the court ultimately granted his motion. Continue reading

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Many people have advanced directives that indicate that they do not want to receive life-sustaining treatment in the event they contract a terminal illness or suffer an acute medical event. Thus, if a doctor in a hospital prolongs the life of a person with a living will, it may go against the person’s ultimate wishes. It likely does not constitute medical malpractice, however, as discussed in a recent New York ruling in which the court stated that New York does not recognize a cause of action for wrongful life and dismissed the plaintiff’s claims against a hospital. If you or a loved one sustained losses because of negligent care in a hospital, it is prudent to meet with a Syracuse hospital malpractice lawyer to assess your rights.

The Decedent’s Care

It is reported that in 1993, the decedent drafted a living will that stated he did not want to receive life-sustaining treatment if he was terminally ill. In 2017, the decedent’s health had deteriorated to the point that he would likely soon die. The defendant hospital, which was tasked with caring for the defendant, was notified of the living will by the decedent’s health care agent. The defendant nonetheless provided the decedent with antibiotics and intravenous treatment, prolonging his life by twenty days.

Allegedly, after the decedent passed away, the plaintiff instituted a malpractice lawsuit against the defendant, alleging it unnecessarily prolonged the decedent’s pain and suffering. The defendant filed a motion for summary judgment, arguing that the plaintiff was asserting a wrongful life claim which was not a valid cause of action under New York law. The court agreed, granting the defendant’s motion. Continue reading

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Most treatment options are helpful but present risks of adverse side effects. To ensure that a patient is making an intelligent decision regarding whether to proceed with surgery, then a doctor must advise the patient of the hazards of the procedure and treatment alternatives. As such, doctors that operate on people absent informed consent may be deemed liable for any harm suffered, regardless of whether it is an expected result. In a recent New York opinion, a court discussed what must be proved by the plaintiff to recover under a lack of informed consent claim. If you were injured by your doctor’s failure to properly advise you of the potential consequences of a procedure, it is in your best interest to speak to a Syracuse surgical malpractice attorney to determine whether you may be able to recover damages.

The Plaintiff’s Care

It is alleged that the plaintiff underwent a cervical fusion after she sustained injuries in a collision. The defendant doctor performed the surgery. The plaintiff was then involved in a second car accident, after which she experienced increased neck pain. She underwent a second procedure, which was also performed by the defendant, after which she developed myelomalacia. She then filed a lawsuit against the defendant asserting medical negligence and lack of informed consent claims. The defendant moved for summary judgment, and the court granted his motion, after which the plaintiff appealed.

Lack of Informed Consent Claims Under New York Law

Under New York law, a plaintiff asserting a medical malpractice claim ascending out of the defendant’s failure to obtain the plaintiff’s informed consent must first establish that the defendant neglected to advise the plaintiff of the benefits, risks, and alternatives to the treatment and that a reasonable doctor would have provided such information. The plaintiff also has to prove that a reasonable person in the plaintiff’s position would have declined to undergo the treatment if provided with full disclosure of the associated risks. Continue reading

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In many instances, when a patient suffers complications following a surgery it is because the surgery was improperly performed. In such cases, the surgeon could be held liable for medical malpractice. If a person who develops an issue after a procedure wishes to pursue claims against the doctor that performed the procedure, though, the individual must obtain testimony from a competent expert to establish that the adverse health effects arose out of medical incompetence, otherwise they may be denied the right to recover damages. This was demonstrated in a ruling recently issued by a New York court, in a case in which the defendant argued the plaintiff’s harm was not caused by medical negligence and the court agreed. If you sustained losses because of an inappropriately performed surgery, it is smart to speak to a Syracuse surgical malpractice attorney to determine what evidence you must produce to recover damages.

The Plaintiff’s Harm

It is reported that the plaintiff underwent a right knee replacement in February 2012, that was performed by the defendant orthopedic surgeon. His wound healed slowly, and he later underwent a second surgery which was performed by the defendant orthopedic surgeon to maintain the hardware that had been placed during the first procedure. The defendant plastic surgeon also performed a procedure at that time.

It was reported that the plaintiff then developed pain and range of motion issues and underwent a total knee replacement two years later. He then filed a medical malpractice lawsuit against the defendants, arguing their negligence led to complications that required the knee replacement. The defendants filed motions asking the court to dismiss the plaintiff’s claims via summary judgment. The court denied the motions and the defendants appealed. Continue reading

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If a doctor incorrectly performs professional duties and a person suffers harm as a result, the doctor may be held liable for medical malpractice. A person must establish numerous elements to successfully recover under a medical malpractice claim, including the existence of a patient-doctor relationship, as liability will not be imposed in the absence of such a correlation. In a recent New York ruling issued in an emergency room malpractice matter, a court discussed what constitutes sufficient proof of an implied patient-doctor relationship to withstand summary judgment. If you suffered harm because of inadequate treatment by emergency room physicians, it is wise to meet with a Syracuse emergency room malpractice attorney to evaluate your possible claims.

The Decedent’s Treatment

Allegedly, the plaintiff’s decedent visited the emergency room of the defendant hospital, where he was seen by the first and second defendant doctors, one of whom had a conversation with the third defendant doctor about the decedent’s health. The decedent underwent imaging tests but was ultimately discharged. He died a day after his visit to the hospital due to cardiorespiratory failure caused by bilateral pulmonary embolisms.

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendants, alleging their negligent care led to the decedent’s death. The defendants separately filed motions for summary judgment, and the third defendant doctor argued in part that he could not be held liable because no patient-doctor relationship existed between him and the decedent. The trial court denied the third defendant doctor’s motion, and he appealed. Continue reading

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New York has many municipally owned and operated hospitals and medical facilities. While such facilities are not immune to medical malpractice claims, they are subject to different rules. In a recent New York opinion, a court explained the requirements for pursuing medical malpractice claims against a municipality in a case arising out of a negligently performed surgery. If you were hurt due to surgical errors, you should consult a trusted Syracuse surgical malpractice attorney to evaluate your rights.

The Plaintiff’s Claims

It is reported that in April 2016, the plaintiff underwent a surgical procedure to remove her thymus gland at the defendant hospital, which was a public corporation. In August 2016, the plaintiff reported to the defendant’s emergency room with complaints of shortness of breath and other symptoms. She was evaluated as having an elevated right hemidiaphragm and discharged. She visited another emergency room in November 2016 with similar symptoms and received the same diagnosis. Then, in January 2017, she was diagnosed with paralysis of the right hemidiaphragm due to the removal of her right phrenic nerve during her surgery.

It is alleged that in March 2017, the plaintiff served the defendant a petition asking to serve late notice of a claim. The petition alleged the defendant’s failure to obtain the plaintiff’s informed consent and medical malpractice caused the plaintiff’s harm. The court denied the plaintiff’s petition, and she appealed. Continue reading

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