Medical Malpractice

Published on: March 29, 2020

New York Court Holds that Failure-to-Diagnose Breast Cancer Medical Malpractice Claim Was Timely Filed

Like other types of personal injury and wrongful death cases, claims for medical malpractice must be filed within a certain period of time (called the “statute of limitations”), or else the claimant forfeits his or her right to pursue fair compensation. While there a few exceptions to this general rule, these exceptions apply only to very limited situations. In all other circumstances, a would-be plaintiff’s claim will be dismissed as time-barred if not filed within the limitations period. Hence, it is very important to talk to Syracuse medical malpractice attorney sooner, rather than later, if you or a loved one has been the victim of medical negligence.

Facts of the Case

The plaintiff in a malpractice lawsuit filed in the Supreme Court of Orange County was a woman who had a mammogram at the defendant medical facility in April 2015. The defendant radiologist reviewed the plaintiff’s mammogram and prepared a report recommending that the plaintiff have a biopsy, but, apparently due to some miscommunication or a lack of communication, the plaintiff did not actually undergo a biopsy until November 2015. The biopsy indicated the presence of cancer.

The plaintiff’s suit sought monetary compensation for lack of informed consent and medical malpractice; more particularly, the plaintiff asserted that the defendants had been negligent in failing to diagnose her with breast cancer and in failing to give her timely notification of the results of the radiologist’s report recommending a biopsy. The defendants’ filed a motion for summary judgment, which was granted by the trial court. The plaintiff filed an appeal, seeking review from the appellate tribunal.

Published on: March 23, 2020

Dismissal of Medical Malpractice Case Brought by Family Following Patient’s Death from Stroke and Heart Attack Affirmed by New York Court of Appeals

by Jeff DeFrancisco

Syracuse medical malpractice lawsuits often come down to a “battle of the experts.” Sometimes this happens during the pre-trial phase, in which the parties submit their respective expert witnesses’ statements in support of, or in opposition to, a motion by the defendant(s) for judgment as a matter of law. Unless the plaintiff’s expert opinion is such that it can effectively refute the defendant’s motion and the defendant’s evidence in support thereof, the plaintiff’s case may end before it reaches the trial phase.

In other situations, the case proceeds to a jury trial, and multiple experts testify. Each will likely offer a different opinion, and it will be up to the jury to resolve any conflicts in the testimony of these witnesses. If you believe that you have a claim for medical malpractice against a doctor or other health care provider, you should talk to an attorney who can assist you in the process of finding an appropriate expert witness to review your medical records and, if necessary, testify at trial.

Facts of the Case

The plaintiffs in a recent medical malpractice case arising in the Supreme Court of Kings County were the statutory wrongful death claimants of a 51-year-old man who died after being treated by the defendant medical providers several times over a multi-day period in 2009. The man had suffered with high blood pressure since his teens but had stopped taking his medication for hypertension about 6 months prior to his treatment by the defendants. When he first presented to the emergency room, he complained of a mild cough, chest pain, fever, chills, and malaise. He was admitted to the hospital and released three days later, returned the same day that he was released only to return the next day, and died about a week later after having experienced both a stroke and a heart attack.

Published on: March 18, 2020

Appellate Tribunal Affirms Summary Judgment in Favor of New York Doctor in Medical Negligence Case

by Jeff DeFrancisco

In a Syracuse medical malpractice case, there are many steps between the act of negligence and a settlement or judgment in favor of the patient (or, if the patient died as a result of the malpractice, his or her family). One of the first steps is a review of the patient’s medical records by an expert witness. Under New York law, an expert’s opinion to the effect that the defendant medical provider failed to act in accordance with the acceptable standard of care is required in order for most medical negligence cases to be successful. If such an opinion is not forthcoming once the case proceeds to a certain point in the litigation, it is likely that the matter will be dismissed as to any defendants against whom the requisite expert’s opinion has been submitted.

Facts of the Case

The plaintiff in a recent case was the administrator of the estate of a person who allegedly died as a result of the negligence of the defendants, a doctor and patient care facility. The plaintiff filed a wrongful death lawsuit, acting both individually and as the administrator of the decedent’s estate, seeking to recover monetary damages for the decedent’s death. The Supreme Court of Bronx County dismissed the plaintiff’s complaint against the doctor after ruling that the doctor was entitled to summary judgment. The plaintiff then appealed the trial court’s decision to a higher tribunal.

The Court’s Decision on the Issues

The New York Appellate Division, First Department, affirmed the lower court’s decision. In order to be granted summary judgment in a medical malpractice lawsuit, the burden was on the defendant to convince the trial court that there were no genuine issues of material fact; only in the absence of triable factual issues was one party or the other to be granted judgment as a matter of law. Applying this standard to the case at bar, the court found that the plaintiff had failed to produce sufficient evidence for the case against the doctor to proceed to trial.

Published on: February 27, 2020

Appellate Court Finds That Summary Judgment Was Improper When New York Doctor Did Exercise Independent Medical Judgment

by Jeff DeFrancisco

Sometimes a doctor or other medical provider will attempt to avoid a finding of liability in a Syracuse medical malpractice lawsuit by claiming that he or she did not exercise any independent medical judgment in the care and treatment of the patient. If a physician was truly just passing through the operating room at the time of the medical negligence, perhaps this is a justifiable defense. However, this argument is often revealed as less than truthful, once the facts begin to present themselves.

If the patient can establish that a doctor-patient relationship existed between the parties and that and the defendant doctor’s breach of the applicable standard of care was the proximate cause of the harm for which he or she seeks compensation, the patient may be entitle to payment for damages caused by the doctor’s negligent treatment or care.

The Facts of the Case

In a case appealed to the New York Appellate Division, Fourth Department the plaintiff was a mother who sought a monetary judgment for injuries that her daughter suffered when the defendant doctor allegedly failed to address certain postsurgery complications in a manner that was timely and appropriate. According to the plaintiff, the defendant’s treatment of her daughter had fallen below the applicable standard of care and this was a contributing factor for injuries for which she sought money damages.

Published on: February 20, 2020

New York Court Reverses Summary Judgment for Anesthesiologist in Shoulder Injury Case

by Jeff DeFrancisco

Most medical procedures come with some degree of risk. Patients are supposed to be informed of both the potential risks and benefits of a given procedure prior to giving their consent. When a physician fails to obtain informed consent, or if the doctor deviates from the standard of care and injures the patient by his or her mistake, a Syracuse medical malpractice claim may be possible against the negligent medical provider. Like other types of medical negligence cases, surgical malpractice cases usually require expert testimony in order to establish several elements, including the standard of care that the doctor should have followed and whether any deviation from this standard was the proximate cause of harm to the patient.

Facts of the Case

In a recent case considered on appeal by the New York Appellate Division, First Department, the plaintiff was a woman who alleged that she had suffered an injury to her brachial plexus as a result of an interscalene nerve block, which she underwent prior to having arthroscopic surgery on her shoulder. She filed a medical malpractice lawsuit in the Supreme Court of New York County, seeking monetary compensation from several defendants, including the anesthesiologist who performed the nerve block, an anesthesiology fellow, a medical center, and the physician who performed the plaintiff’s shoulder surgery. The trial court granted summary judgment to the anesthesiologist, the anesthesiology fellow, and the medical center, prompting the plaintiff to seek appellate review.

Outcome of the Appeal

The appellate court modified the lower court’s decision to vacate the dismissal of the plaintiff’s complaint against the anesthesiologist and the medical center, thereby reinstating the medical malpractice and lack of informed consent claims against the anesthesiologist and the vicarious liability claim against the medical center (based on the doctrine of ostensible agency). According to the reviewing court, the lower tribunal had been wrong in granting summary judgment to the anesthesiologist because the plaintiff’s expert affidavits raised issues of fact on the issues of the defendants’ alleged deviation from the standard of care and causation.

Published on: January 25, 2020

New York Court Rules that Medical Malpractice Claim of Patient Suffering Vision Issues Fails

by Jeff DeFrancisco

In order to successfully maintain a Syracuse medical malpractice lawsuit, the burden of proof is on the plaintiff to provide evidence that the defendant breached the standard of care that applied to the particular situation at hand and that this breach was the proximate cause of any damages for which the plaintiff seeks compensation. Many times, the defendant in a medical negligence lawsuit will seek dismissal of the claim on the grounds that the plaintiff has not provided sufficient evidence for the case to go to trial. Only if there is a genuine issue of material fact that must be resolved by the finder of fact (the jury or, sometimes, the trial court judge) will the case proceed past the summary judgment phase of litigation.

Facts of the Case

The plaintiff in a recent New York medical malpractice case alleged that he had suffered corneal edema due to surgery performed by the defendant osteopathy doctor. More particularly, the plaintiff asserted that an “ex-press” glaucoma shunt surgery had caused him to need cornea transplant surgery and suffer loss of vision in one eye. The plaintiff’s lawsuit was filed in the Supreme Court of New York County. The defendant sought dismissal of the claim against her, arguing that she was entitled to summary judgment insomuch as the defendant had present a triable issue of fact. The trial court agreed that the defendant was entitled to judgment as a matter of law and dismissed the plaintiff’s malpractice and informed consent claims.

The Resolution of the Appeal

The New York Appellate Division, First Department affirmed the lower court’s ruling, thus agreeing that it had been proper to dismiss the plaintiff’s complaint. According to the reviewing court, the plaintiff had not provided the necessary evidence to survive the defendant’s motion for summary judgment. Rather, in the reviewing court’s view, the plaintiff had merely “reiterated that the defendant was responsible” for his injuries.

Published on: January 22, 2020

New York Court Reverses Order Granting Summary Judgment to OB-GYN in Case Involving Death of Mother Attempting VBAC Home Birth

by Jeff DeFrancisco

Not all doctors are held to the same standard of care. For example, it would probably be difficult to hold a podiatrist liable for failing to diagnose an abscessed tooth in a Syracuse medical malpractice case, even if the podiatrist was the only medical professional that the patient had seen recently. Rather, care and treatment by doctors who specialize in a particular field is measured according to others in that field. Would a reasonable podiatrist have diagnosed a problem tooth under the circumstances? Probably not (although he or she might have recommended follow-up with a dentist). In contrast, a podiatrist’s failure to recognize and treat a life-threatening infection in a foot wound might result in a finding of liability for negligence, as well as substantial damages at trial.

Likewise, certain knowledge and skill is expected of doctors who specialize in the care and treatment of expectant and laboring mothers. When this duty of care is breached, a family injured by this act of malpractice should have their day in court.

Facts of the Case

In a case originally filed in the Supreme Court for Putnam County, the plaintiff was a man who filed a medical malpractice lawsuit seeking compensation for the death of a woman who died from a uterine rupture and hemorrhage during a home birth assisted by a certified nurse midwife. According to the plaintiff, the decedent had previously given birth via cesarean section but was, at the time of her death, attempting to deliver a child vaginally. The plaintiff further alleged that the decedent’s uterus had ruptured during the attempted vaginal birth after cesarean section (VBAC) and that she had suffered a fatal hemorrhage as a result. Several different medical providers were named in the plaintiff’s lawsuit, including an obstetrician/gynecologist (OB-GYN) and his medical practice.

Published on: January 16, 2020

Infant Could Not File Late Notice of Malpractice Claim Against New York Hospital

by Jeff DeFrancisco

Generally speaking, a claim for medical malpractice must be filed within two and one-half years (30 months) of an alleged act of medical negligence in the state of New York. While some circumstances can operate to lengthen the time for filing a claim, other circumstances can shorten the period substantially. For instance, if the defendant in a proposed Syracuse birth injury lawsuit is a governmental entity, the plaintiff may have as little as 90 days in which to file a notice of claim (a condition precedent to the filing of a lawsuit against certain government entities, including those who own or operate hospitals).

Facts of the Case

In a recent case, the petitioner was an infant, proceeding through his mother and natural guardian, who sought to assert a medical malpractice claim against the respondent city hospital corporation (a public entity). Although the infant was discharged from the hospital shortly after his birth in April 2013, he did not file a motion for leave to serve a late notice of claim until May 2016 – more than three years after the alleged act of medical negligence. The Supreme Court of New York County denied the petitioner’s motion for leave to serve a late notice of claim, and he appealed.

The Court’s Decision

The New York Appellate Division, First Department, affirmed the lower court’s order denying the relief sought by the petitioner. According to the court, both the infant and his mother received pre- and post-natal care at the respondent’s hospital in 2013. In the reviewing court’s opinion, any medical malpractice claim that the petitioner might have had against the respondent accrued upon the petitioner’s discharge from the hospital; thus the applicable claims period began to run more than three years prior to the filing of the petitioner’s motion for leave to serve a late notice of claim.

Published on: December 27, 2019

New York Appellate Court Reviews Chiropractic Malpractice Case Involving Multiple Defendants, One of Whom Entered Into an Arbitration Agreement

by Jeff DeFrancisco

Syracuse medical malpractice lawsuits involving multiple defendants can be complex. The plaintiff’s case against some of the defendants may be stronger or weaker than his or her case against the others, possibly leading to quicker and more effective settlement negotiations against one or more of the health care providers against whom money damages are sought. Just as naming multiple defendants complicates a medical negligence lawsuit, so may the death of the primary plaintiff in such a lawsuit, especially if his or her death allegedly resulted from the acts of malpractice giving rise to the claim.

A recent case explored some of the issues that can arise when the original plaintiff passes away in the middle of a lawsuit involving several medical provider defendants, one of whom had allegedly entered into an arbitration agreement with the original plaintiff prior to his death.

Factual Allegations

In a recent case filed in the Supreme Court of St. Lawrence County in 2015, the original plaintiff was a man who sought monetary compensation for alleged acts of medical malpractice and chiropractic malpractice from multiple medical provider defendants. While the lawsuit was pending, the original plaintiff entered into an arbitration agreement with one particular defendant, and a stipulation of discontinuance was entered as to that defendant. Accordingly, the trial court deleted that defendant from the caption of the complaint.

Published on: December 26, 2019

New York Appellate Court Reverses Summary Judgment Granted to Medical Providers on Claim Regarding Vegetative Patient’s Conscious Pain and Suffering

by Jeff DeFrancisco

In a lawsuit arising from an alleged act of medical malpractice, a Syracuse medical malpractice plaintiff may seek reasonable compensation for several different types of damages. Two of the most common types of damages are medical expenses and lost earning capacity caused by the act(s) of medical negligence.

Money damages may also be awarded for pain and suffering in some cases. Of course, in order for this to happen, there must be proof that the victim was aware of his or her suffering, at least on some level. While it is not necessary to show that he or she was fully “awake” and completely aware of everything that was happening at the time in question, there must be some evidence of awareness of his or her pain during the relevant time. Whether or not this was so in a certain case can be a point of much contention.

Facts of the Case

In a recent case arising in the Supreme Court of New York County, the plaintiff was a woman who sought monetary compensation for the death of a medical patient who died after having been treated by the defendants, two hospitals and several other medical providers. Two of the defendants sought summary judgment on the issue of the plaintiff’s conscious pain and suffering claim, arguing that there were no genuine issues of material fact as to whether the decedent was cognitively aware during the time that she was admitted to those defendants’ medical facilities.