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In all medical malpractice cases filed in New York, the burden of proof is transferred from the plaintiff to the defendant and then back to the plaintiff. In other words, the plaintiff must delineate the alleged malpractice committed by the defendant via a bill of particulars. In turn, if the defendant wishes to have the case dismissed, he or she must refute each allegation in the bill of particulars with an expert report. In a recent case before a New York appellate court, the court explained what constitutes an expert report sufficient to obtain a dismissal in a hospital malpractice case. If you suffered damages during or after your admission to a hospital due to incompetent medical care, it is prudent to speak with a reliable Syracuse hospital malpractice attorney to discuss what compensation you may be able to pursue.

Factual Background

It is reported that the decedent underwent a procedure at the defendant hospital during which a stent was placed in his esophagus. The following day, he was discharged and directed to follow-up with his primary care physician if he suffered certain symptoms. The decedent died five days later. The plaintiff then filed a medical malpractice lawsuit against the hospital and physician who performed the procedure, in which she alleged negligence during the procedure and in the post-discharge care of the decedent. The defendants filed a motion for summary judgment, which was granted with exception to the claims regarding post-discharge care. The defendants appealed.

Sufficiency of Defense Expert Reports in Medical Malpractice Cases

In a medical malpractice case, a defendant seeking dismissal of the plaintiff’s claims via summary judgment must establish either that he or she did not deviate from the standard of care or that any deviation did not cause the plaintiff’s alleged harm. In order to sustain this burden, the defendant must rebut and address each specific allegation of malpractice that is set forth in the plaintiff’s bill of particulars.

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While in some cases, a patient’s symptoms are straightforward, and the cause of the symptoms are easily ascertainable, in other instances, the journey to an accurate diagnosis can be lengthy. Simply because a patient does not immediately receive a correct diagnosis does not indicate that malpractice is present, however. Instead, in some cases, it may simply take longer to determine what illness is afflicting a patient. Recently, a New York appellate court discussed the evaluation of malpractice claims arising out of delayed diagnoses in a case in which it took several months for a plaintiff to receive a cancer diagnosis. If you were injured by a delay in receiving an accurate diagnosis, you should consult a capable Syracuse medical malpractice attorney regarding your possible claims.

Factual Background

It is reported that the plaintiff’s decedent presented to the defendant primary care physician with complaints of puffy eyes and nasal congestion. He was treated and sent home. A month later, the decedent called the defendant primary care physician and advised he was having difficulty swallowing, after which she referred him to a gastroenterologist. She did not order any other tests. The decedent ultimately underwent diagnostic imaging, which revealed that he had a mass in his chest. The defendant oncologist ultimately diagnosed the plaintiff with a form of lymphoma. After  the decedent’s death, the plaintiff filed a medical malpractice lawsuit against the defendants, arguing that their failure to diagnose the decedent in a timely manner caused the decedent’s harm. The defendants each filed motions for summary judgment, which the court granted in part. The plaintiff appealed.

Medical Malpractice Arising Out of a Delayed Diagnosis

With regard to the claims against the defendant primary care physician, the court noted that the defendant established via her expert report that the treatment she provided the decedent with on the date of his initial visit complied with the standard of care. In return, the plaintiff’s expert failed to raise a triable issue of material fact regarding whether the defendant deviated from the standard of care. Thus, the court affirmed the order granting summary judgment with regard to that issue.

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Not all medical malpractice cases arise out of bodily harm; rather, in some instances, a medical malpractice case will arise out of the alleged breach of patient-doctor confidentiality. Regardless of the harm alleged, however, it is critical for the plaintiff to prove he or she suffered actual damages. This was explained in a recent primary care malpractice case in which the court found that a genuine issue of fact existed as to whether the defendant harmed the plaintiff, precluding dismissal via summary judgment. If you sustained damages due to a negligent primary care physician, it is wise to speak with a skillful Syracuse primary care malpractice attorney to discuss your potential damages.

Factual Background

It is reported that the plaintiff, who worked as a schoolteacher, began suffering from respiratory issues while at work. She attempted numerous treatments, but her symptoms persisted. Approximately a year later, the superintendent of the school district that employed the plaintiff asked the defendant primary care physician to examine the plaintiff pursuant to Education Law 913 to determine if the plaintiff was able to perform her job duties. The defendant examined the plaintiff and then sent a report of his findings to the superintendent.

Allegedly, the defendant annexed medical records from other providers that he received from the plaintiff to the report. The plaintiff then filed a medical malpractice lawsuit against the defendant, alleging he violated patient-doctor confidentiality by disclosing the records she provided to him. The defendant filed a motion for summary judgment, which the trial court denied. The defendant then appealed.

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In all but the clearest of cases, a plaintiff alleging he or she suffered harm due to medical malpractice must retain an expert who will testify as to the manner in which the defendant healthcare provider caused the plaintiff’s harm. Similarly, the defendant must produce an expert report, refuting the plaintiff’s allegations. If either party fails to produce an adequate expert report, it may adversely affect their position in the case. This was demonstrated in a recent nursing malpractice case decided by a court in the Appellate Division of the Supreme Court of New York, in which the court dismissed the plaintiff’s claims due to the speculative nature of the plaintiff’s expert report. If you or a loved one suffered harm due to negligent care provided in a nursing facility, it is in your best interest to meet with a trusted Syracuse nursing malpractice attorney who will zealously pursue an outcome in your favor.

Facts of the Case

It is reported that the plaintiff’s decedent was admitted to the defendant rehabilitation and nursing center. During his admission, he received intravenous antibiotic therapy. He ultimately fell ill and died. The plaintiff then filed a medical malpractice lawsuit against the defendant center and defendant nurse, alleging they were negligent in failing to manage the decedent’s care properly and in failing to transfer him to a hospital for treatment. After discovery was completed, the defendants filed individual motions for summary judgment. The trial court denied the defendants’ motions, and the defendants appealed. On appeal, the court reversed the trial court ruling and granted the defendants’ motions, dismissing the plaintiff’s claims.

Requirements of Expert Affirmations

It is axiomatic that in a New York medical malpractice, the plaintiff must establish that the defendant deviated from the standard of care accepted in the community in which the defendant practices and that the deviation proximately caused the plaintiff to suffer harm. If the defendant demonstrates via an expert affidavit that there is no issue of material fact as to either element, the plaintiff’s claims should be dismissed unless the plaintiff is able to establish a triable issue of fact in opposition to the defendant’s expert report.

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In any medical malpractice case filed in New York, the plaintiff must set forth a bill of particulars establishing the manner in which the defendant’s care caused the plaintiff’s harm. In turn, if the defendant rebuts the specific allegations in the plaintiff’s bill of particulars, thereby sufficiently showing that he or she did not cause the plaintiff’s harm, the plaintiff’s claims against the defendant may be dismissed. The plaintiff can avoid dismissal, however, by demonstrating that there are factual issues that need to be resolved via trial. Recently, the Supreme Court, Appellate Division, Second Department, New York, discussed what constitutes sufficient evidence of an issue of fact to withstand a dismissal in a case in which the plaintiff alleged he was harmed by neurology malpractice. If you sustained damages due to negligent care provided by a neurologist, it is critical to engage a Syracuse neurology malpractice attorney who will fight diligently on your behalf.

Facts Regarding the Plaintiff’s Treatment and Procedural History

It is reported that the plaintiff suffered a fistula of a spinal artery, after which he was admitted to the defendant hospital, where he underwent diagnostic testing. Following the test, he experienced weakness in his left leg. He then underwent a surgical procedure to repair the fistula. The plaintiff ultimately filed a medical malpractice lawsuit against the practitioners who performed the diagnostic test and surgery and the hospital, arguing that the procedures were performed negligently, causing him to suffer neurological harm.

It is alleged that the plaintiff set forth a bill of particulars with broad allegations regarding the negligent acts and omissions of the hospital and physicians, and alleged that as a result of their malpractice he suffered neurological damages, which affected the function of his legs, bowel, and bladder. The plaintiff discontinued the action against the individual defendants, leaving only his claims against the hospital. The hospital then filed a motion for summary judgment, which the trial court granted. The plaintiff appealed.

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Mammograms are a critical component of preventative care. Many women do not undergo mammograms on a yearly basis, though, despite the clear health benefits. Other women undergo mammograms in mobile screening vans that typically offer mammograms during breast cancer awareness month. If a mammogram conducted in a mobile van is not properly performed or evaluated, and a woman subsequently suffers harm as a result, it can be difficult for the woman to pursue medical malpractice claims. This was demonstrated in a recent radiologic malpractice case arising out of Kings County, in which the court dismissed many of the plaintiff’s claims. If you were harmed by a negligent radiologist, it is wise to speak with a skillful Syracuse radiology malpractice attorney regarding what evidence you must produce to recover damages.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff underwent a mammogram at a mobile screening unit. The defendant radiologist was retained by the company that administered the mammogram to interpret the images. Thus, he interpreted the plaintiff’s mammogram and reported to the plaintiff’s primary care physician that the mammogram was normal, but that a recall was advised. The report also stated that the plaintiff had dense breasts that made her mammogram difficult to interpret. The plaintiff underwent examinations with her primary care physician and gynecologist, neither of which revealed abnormalities. The plaintiff was ultimately diagnosed with breast cancer approximately a year later. She subsequently filed a medical malpractice lawsuit against her gynecologist, primary care physician, and the radiologist for failing to diagnose her breast cancer in a timely manner. She also alleged negligent supervision and lack of informed consent claims. Following the close of discovery, the defendants filed motions for summary judgment, which the court granted in part.

Duty Owed by Non-treating Providers

Upon review, the court found that the plaintiff raised triable issues of fact as to whether the original mammography was adequate to obtain an interpretation, whether the defendant radiologist improperly categorized the mammogram as normal rather than inconclusive, and whether the aforementioned errors resulted in a delay in diagnosing the plaintiff’s breast cancer. The court dismissed the plaintiff’s lack of informed consent and negligent supervision claims, however. Additionally, the court dismissed the plaintiff’s claims that the radiologist should have obtained prior films for comparison or that he should have recommended a sonogram. Rather, the court stated that the radiologist was not the plaintiff’s treating physician, and therefore his role and legal obligation in her treatment was limited. Specifically, the court found that neither the radiologist nor the company that retained the defendant radiologist owed the plaintiff a general duty of care. Therefore, he did not have an obligation to obtain prior films from the plaintiff or advise her to seek further testing.

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Most medical malpractice cases filed in New York are decided on their merits. In other words, if the case proceeds to trial, the judge or jury will ultimately decide the issue of liability and damages based on the evidence presented. In some instances, however, the outcome of a case will be determined by a party’s failure to comply with procedural rules. This was demonstrated in a recent surgical malpractice case arising out of Kings County, in which the court denied the defendant’s motion for summary judgment as untimely. If you suffered injuries because of an improperly performed surgical procedure, it is prudent to meet with a diligent Syracuse surgical malpractice attorney to discuss what damages you may be able to recover.

Factual and Procedural Background of the Case

It is reported that the plaintiffs, husband, and wife, filed a medical malpractice lawsuit against the defendants after the defendants allegedly lost a prosthetic part in the plaintiff husband’s body during a hip replacement surgery. After the completion of discovery, the defendants filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims. The plaintiffs did not file a response to the defendants’ motion but instead filed a motion asking the court to dismiss the defendants’ motion as untimely. The court granted the plaintiffs’ motion to reject the defendants’ motion due to its untimely nature and denied the defendants’ motion as academic. The defendants subsequently filed an appeal.

Time Limits for Filing a Motion for Summary Judgment

Under the New York laws of civil practice, courts have the discretion to impose deadlines for when either party can file a motion for summary judgment, with the caveat that the deadline cannot be more than thirty days earlier or one hundred and twenty days later than the filing of the note of issue, unless leave of court is shown or good cause is established. In Kings County, the rules provide that a party must move for summary judgment within sixty days of when a note of issue is filed unless the party seeks leave of court or shows good cause for an untimely filed motion.

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In some cases in which a person is harmed by negligent treatment, multiple providers will participate in the person’s care, but not all of the providers will contribute to the person’s harm. Thus, it is not uncommon for either party to seek to depose non-party physicians as fact witnesses. There are limitations regarding what information can be elicited from a physician who is not an expert or a party, however, as demonstrated in a recent surgical malpractice case arising out of Bronx County.  If you sustained damages due to an inappropriately performed surgery, it is wise to speak with a proficient Syracuse surgical malpractice attorney regarding what evidence is available to support your claims.

The Deposition of the Non-Party Physician

Allegedly, the plaintiff’s decedent underwent an elective knee replacement at the defendant hospital. Following the surgery, the decedent was transferred to a recovery room where he became unresponsive. The decedent was resuscitated, but he ultimately died due to an anoxic brain injury. His estate subsequently filed a medical malpractice lawsuit against the hospital and the defendant that performed the surgery. During discovery, the plaintiff’s counsel deposed the anesthesiologist that attended the decedent’s surgery. The defendants’ counsel objected to several questions presented to the anesthesiologist and directed her not to answer. Thus, the plaintiff sought a court order directing the anesthesiologist to answer.

Information Discoverable from a Non-Party Physician in a Medical Malpractice Case

Pursuant to the New York laws of civil procedure, counsel should be permitted to question witnesses at depositions freely, and any question posed should be answered unless the question is clearly improper or seeks privileged information. For example, in a malpractice action, it is improper to question a physician regarding the quality of care provided by another physician, if the question does not pertain to the potential negligence of the physician being questioned. If the question simply refers to the treatment offered by another physician, though, the physician being deposed cannot refuse to answer.

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It is not uncommon for a person seeking medical treatment to travel to another state or for a care provider to treat patients in more than one state. In a patient is harmed by treatment rendered by an out of state care provider, though, it can be difficult to determine the proper jurisdiction for pursuing a medical malpractice claim. Recently, a New York appellate court discussed a plaintiff’s burden of proof in establishing that a medical malpractice case was filed in the appropriate jurisdiction, in a case in which the plaintiff alleged she suffered harm due to treatment from a New Jersey oncologist. If you were injured by inadequate care provided by an oncologist, it is advisable to consult a capable Syracuse oncology malpractice attorney to discuss the proper procedure for pursuing a claim for damages.

The Plaintiff’s Treatment

Allegedly, the plaintiff was referred by the defendant New York hospital, to the defendant care center in New Jersey. The defendant care center provided the plaintiff with proton therapy treatment, which caused her to go blind. As such, the plaintiff filed a medical malpractice lawsuit against the defendant care center and the defendant providers, who specialized in radiation oncology. The New Jersey defendants filed a motion to dismiss based on lack of personal jurisdiction. The trial court denied the motion and ordered the parties to engage in jurisdictional discovery. Discovery was conducted, and the New Jersey defendants again filed a motion to dismiss for lack of personal jurisdiction, which the court again denied. The New Jersey defendants appealed.

Jurisdiction Over Out of State Providers

On appeal, the court reversed the trial court ruling, finding that the plaintiff failed to produce evidence sufficient to show that the court could properly exercise jurisdiction over the New Jersey defendants. Specifically, the plaintiff was required to prove that the defendants, on their own volition, reached into the state of New York for the purposes of engaging in sustained and substantial business transactions that were directly related to the plaintiff’s claims, in order for the court to exercise jurisdiction under the New York long-arm statute.

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It is not uncommon for a physician that treats a patient to refer the patient to a specialist for the diagnosis or treatment of certain conditions. When multiple providers treat a person for a single issue, and the care provided is inadequate, it can be challenging to assess which care provider is ultimately responsible for the person’s harm. In a recent gynecologic malpractice case, a New York appellate court discussed the duties imposed on a care provider with regards to treatment by a specialist to whom the provider transfers a patient’s care. If you suffered harm due to negligent care rendered by a gynecologist, it is wise to speak with a seasoned Syracuse gynecologic malpractice attorney regarding what compensation you may be able to pursue.

Facts Regarding the Plaintiff’s Treatment

Allegedly, the plaintiff visited the defendant gynecologist for a routine examination. During the examination, the defendant gynecologist felt a palpable mass that was tender to the touch in the plaintiff’s right breast. As such, the defendant gynecologist referred the plaintiff to the defendant breast surgeon for further examination. Upon examination, the defendant breast surgeon was unable to locate a palpable mass, which he reported to the defendant gynecologist. The mass in the plaintiff’s right breast was ultimately determined to be breast cancer. The plaintiff subsequently sued the defendants for malpractice for delaying her cancer diagnosis. The defendant gynecologist filed a motion for summary judgment, which the court granted. The plaintiff then appealed.

Liability for Negligence When a Patient is Referred to Another Provider

Under New York law, it is axiomatic that a defendant in a medical malpractice case must prove that he or she did not deviate from the applicable standard of care or that any deviation did not cause the plaintiff’s alleged harm, in order to obtain a dismissal of the plaintiff’s claims. While a defendant in a medical malpractice case cannot be held vicariously liable for the malpractice of a care provider to whom the defendant refers a patient, the defendant can be held liable for his or her own negligent conduct that causes a patient harm.

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