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Syracuse Personal Injury Law Blog

Published on: November 30, 2019

New York Appellate Court Affirms Summary Judgment to Defendants in Prostate Cancer Case

by Jeff DeFrancisco

A Syracuse medical malpractice lawsuit can arise in many different ways. Sometimes, a claim of negligence involves an affirmative act taken by a doctor, such as operating on the wrong limb or leaving behind a piece of medical equipment in a patient’s abdominal cavity. Medical malpractice can also happen when a doctor fails to take a particular action, such as failing to refer a patient to a specialist for further examination and treatment.

Of course, simply failing to make a referral is not, in and of itself, negligence unless some harm befalls the patient as a proximate result. A common complaint in such situations is that the doctor’s failure to advise the patient to follow up with another physician resulted in a delayed diagnosis some type, such as cancer, and that the condition grew worse as a result.

Facts of the Case

In a recently decided case arising in the Supreme Court for Bronx County, the plaintiff was a man who filed a medical malpractice lawsuit against a doctor and others, asserting that the doctor had been negligent in not referring him to a urologist in a timely fashion. According to the plaintiff’s view of the case, this negligence created a delay, during which the plaintiff’s prostate cancer became worse, ultimately requiring him to undergo a radical prostatectomy.

Published on: November 27, 2019

New York Woman’s Failure to Put Doctor on Notice of 2011 Malpractice Claim Resulted in Partial Summary Judgment to Physician

by Jeff DeFrancisco

In a New York medical malpractice lawsuit, the plaintiff has the burden of proof. This means that he or she must be able to produce appropriately convincing evidence that the defendant(s) violated the standard of care owed to the plaintiff and that this was the proximate cause of the damages for which the plaintiff seeks monetary compensation. Most medical malpractice lawsuits involve one or more motions for summary judgment – a legal vehicle through which the defendant(s) seeks dismissal of the case prior to trial. Sometimes such motions are granted or denied in their entirety, but the court may opt for a partial granting of summary judgment in some situations.

Facts of the Case

In a court opinion recently issued by the New York Appellate Division, First Department, the plaintiff was a woman who sued the defendants, a hospital and a medical doctor, for medical malpractice, alleging that the doctor had failed to properly interpret her decedent’s echocardiogram during a period beginning in late 2012 and ending in early 2013. The doctor filed a motion for summary judgment, seeking dismissal of the plaintiff’s claims against him and arguing that he was entitled to judgment as a matter of law. The Supreme Court of New York County denied summary judgment as to the doctor, and he appealed.

The Decision of the Court

The appeals tribunal reversed the lower court’s denial of summary judgment as to any claims of negligence alleged to have occurred prior to December 26, 2012, or after January 21, 2013. The court first noted that the plaintiff’s bill of particulars alleged that the doctor had been negligent in failing to properly interpret a particular echocardiogram on January 18, 2013, which the plaintiff alleged showed a more diluted aorta than seen on a prior echocardiogram taken in August 2011. The plaintiff had further alleged that the defendants’ negligent acts took place “from on or about December 26, 2012, through January 21, 2013, and prior or subsequent thereto.” However, the plaintiff’s expert’s opinion, submitted in opposition to the doctor’s motion for summary judgment, had opined that the doctor was also negligent in his interpretation of the 2011 echocardiogram.

Published on: November 20, 2019

Property Owner Who Did Not Create Alleged Sidewalk Defect Should Have Been Granted Summary Judgment According to New York Appellate Court

by Jeff DeFrancisco

New York property owners have a duty to maintain their property in a reasonably safe condition. When this does not happen, a New York premises liability lawsuit provides a legal remedy to the injured accident victim. Of course, not every slip and fall on another’s property will result in a favorable judgment for the injured person. There are many factors that must be considered. Some of these factors include the nature of the alleged defect, how long the defect had been present, and whether the landowner was aware of the defect and had time to correct it prior to the accident.

Facts of the Case

The plaintiff in a recent case was a woman who injured her shoulder when she her foot caught the lip of a raised concrete sidewalk slab while walking toward a diner in May 2016. The woman, joined in the suit by her husband, sought compensation for her injuries, alleging that the defendants, the owner of the diner and the owner of a nearby firehouse, were negligent and that this negligence was the cause of her injuries. Both defendants filed motions for summary judgment. The Supreme Court of Greene County denied the defendants’ motions, and they appealed, arguing that the alleged defect about which the plaintiff complained was trivial and, thus, not actionable under New York law.

Decision of the Court

The New York Appellate Division, Third Department, modified the trial court’s order by reversing the denial of the firehouse’s motion for summary judgment but affirming as to the part of the order denying the diner owner’s motion. The court began by acknowledging that trivial defects do not render a landowner liable for a guest’s injuries but noting that there is no “predetermined height differential” in a sidewalk or other walking area (such as the one upon which the plaintiff was injured) that automatically rendered a defect trivial or not trivial. Rather, courts must consider various factors, including width, depth, elevation, irregularity, and appearance of the accident location. The time, place, and circumstances of the plaintiff’s injury may also be considered by a reviewing court.

Published on: November 13, 2019

Appellate Court Affirms Denial of Summary Judgment in New York Medical Malpractice Case

by Jeff DeFrancisco

When a doctor or other healthcare professional makes an error, serious consequences, including personal injury and wrongful death, can occur. In order to assert a claim against an allegedly negligent healthcare provider in a medical malpractice lawsuit, the plaintiff must be prepared to introduce evidence of the standard of care that applied to his or her medical situation, how that standard was allegedly breached, the damages that he or she experienced, and the relationship (or “proximate causation”) between the doctor’s mistake and the harm that befell the plaintiff.

A medical malpractice case can take a long time to resolve, much longer than many other types of personal injury cases, such as those arising from an automobile accident. This can be discouraging for a would-be litigant, even one with a really strong case. Unfortunately, this is often the very intent of malpractice insurance companies and the attorneys who defend careless doctors in court.

If you believe that you have been hurt or may have lost a loved one due to a physician or other medical professional’s failure to follow the acceptable standard of care, you should talk to a lawyer as soon as possible. The sooner your case is started, the quicker it can be resolved – even if there are delays along the way as the defendants fight a finding of liability.

Published on: November 7, 2019

New York Appellate Court Affirms Dismissal of Personal Injury Case Due to Failure to Provide Documentation to Take Case Out of No-Fault Provisions

by Jeff DeFrancisco

New York is a “no fault” state for purposes of automobile accident claims. While “no fault” does not mean that a negligent driver can never be held liable for a Syracuse car accident caused by his or her failure to act in a reasonably prudent manner, it does require an injured individual to first look to his or her own insurance coverage in relatively minor accidents.

When the provisions of no fault apply, each person’s own insurance company should pay his or her medical expenses, lost wages, and other costs relating to a motor vehicle accident.

In order to take a car wreck case outside the each-party-pays-their-own-expenses concept of the no fault law, an injured person must be able to prove that he or she suffered a serious injury. Examples of such an injury include fractures and broken bones, disfigurement, disability, and limitation of the use of part of the body.

Published on: October 29, 2019

Summary Judgment Granted in Part, Denied in Part in New York Family’s Medical Malpractice Lawsuit for Relative’s Post-Surgery Death

by Jeff DeFrancisco

In a Syracuse medical malpractice case, the plaintiff has the burden of proving his or case by a preponderance of the evidence. Often, a defendant (doctor, hospital, or other medical provider) will attempt to circumvent the usual trial practice by filing what is known as a summary judgment motion. Such a motion is granted when the court finds that there is no triable issue of fact.

When a court grants such a motion for summary judgment, the plaintiff’s case may be dismissed in part or even in its entirety. Thus, it is important that the plaintiff be able to offer sufficient proof of his or her claim in opposition to the motion. Consulting an experienced medical malpractice attorney early on in the process is essential to securing the necessary evidence of negligence to survive a motion for summary judgment and, ultimately, the prevail at trial.

Facts of the Case

In a recent case, the plaintiffs filed suit against the defendants, a medical center, a doctor, and others, asserting claims for medical malpractice, lack of informed consent, and the wrongful death of their decedent, a man who allegedly died from complications of gallbladder removal surgery. One of the doctors filed a motion for summary judgment. The Supreme Court for Kings County denied the motion, and the defendant doctor appealed.

Published on: October 26, 2019

New York Appellate Court Directs Entry of Order So-Ordering Stipulation of Dismissal But Allows Medical Malpractice Defendants’ Cross Claims

by Jeff DeFrancisco

A Syracuse medical malpractice case may involve allegations against multiple defendants – a hospital, one or more doctors, and possibly other healthcare providers, as well. Generally speaking, the more defendants there are in a case, the more expensive and time-consuming the litigation is likely to be. For this reason, a plaintiff may opt to dismiss his or her claims against one or more defendants and proceed against those remaining.

In some cases, the defendants themselves may oppose such a measure and may file a cross claim aimed at keeping a co-defendant actively engaged in the lawsuit so as to have the option of shifting – or at least sharing – liability and blame if the case proceeds to trial.

Facts of the Case

A recent appellate case originating in the Supreme Court of Westchester County, the plaintiffs sought to assert a medical malpractice claim against a doctor and medical center following the death of their decedent from a stroke. According to the plaintiff’s complaint, the doctor (who was an emergency room attending physician at the medical center) negligently failed to recognize the symptoms of a stroke, thereby contributing to the decedent’s death. Four years after filing their suit, the plaintiffs signed a stipulation to discontinue their cause of action against the defendant doctor. However, the medical center did not agree to the stipulation and sought to amend its answer to add a cross claim against the doctor for indemnification and contribution. The doctor, in turn, amended his answer to assert similar cross claims against the medical center.

Published on: October 23, 2019

Hospital Employee’s Takedown of Mental Health Patient Was Intentional, Not Negligent; Thus Claim Was Time-Barred

by Jeff DeFrancisco

In any Syracuse medical malpractice case, time is of the essence. When a claim is not filed within the time allowed by law, it is very difficult – and often impossible – to proceed with what might otherwise have been a good case. This is unfortunate, as the plaintiff’s suffering goes uncompensated and the defendant gets away with poor treatment of a patient.

The exact time during which a claim can be made can vary significantly from case to case, with some situations calling for action to be taken within a very short time (especially if a governmental entity may be liable or if a defective product caused harm to a user).

Facts of the Case

The plaintiff in a recent case was the guardian ad litem for a paranoid schizophrenic adult male patient who claimed that an employee of the defendant hospital had “beat [him] up” when he was an in-patient there in 2009, causing him to lose consciousness and sustain injuries to his eye that required surgery and resulted in loss of vision. Somewhat in contrast to the patient’s testimony, the plaintiff’s complaint asserted that the patient had been “physically taken down, restrained, and controlled… in a negligent manner,” thereby causing his injuries; according to the plaintiff, the defendant was liable for the actions of its employees under a theory of respondeat superior.

Published on: October 16, 2019

New York Appellate Court Holds That Summary Judgment Should Have Been Partially Granted and Partially Denied in Car Accident Victim’s Suit Against UM/UIM Carrier

by Jeff DeFrancisco

Under New York’s no-fault insurance laws, not every person who has been involved in a car accident has a right to sue the person responsible for the accident. Likewise, only those who meet certain exceptions to the no-fault rule can file the equivalent of a personal injury claim against their own uninsured/underinsured motorist carrier if the negligent party had no insurance (or too little insurance).

An experienced Syracuse car accident lawyer can review your case and help you determine whether your case meets the threshold for seeking compensation for personal injuries caused by another’s negligence.

In the event that suit is filed, it will ultimately be up to the trial court – and possibly the appeals tribunal, if review is sought – to determine whether the case falls within the purview of no-fault or whether your injuries were significant enough to take your case outside the limitations of the statute.

Published on: October 10, 2019

Appeals Court Affirms Denial of Summary Judgment in New York Woman’s Premises Liability Lawsuit Against Housing Authority

by Jeff DeFrancisco

Of the many Syracuse premises liability lawsuits that are filed, in addition to those filed elsewhere in New York, very few actually make it to trial. There are two main reasons for this.

First of all, as with other types of civil claims, many slip and fall cases are settled out of court. The defendant agrees to pay a certain sum of money to the plaintiff (sometimes without actually admitting liability), and the plaintiff agrees to accept that sum and dismiss his or her case.

Secondly, a significant number of cases are resolved via summary judgment procedure. When summary judgment is granted, a court is essentially saying that looking at the evidence in the light most favorable to the opposing party, the party seeking summary judgment is entitled to judgment as a matter of law, without the need for a jury trial.