Medical Malpractice

Published on: November 30, 2019

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

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 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: 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: September 23, 2019

New York Appellate Division Says Trial Court Was Wrong to Grant Summary Judgment on Liability as a Discovery Sanction in Medical Malpractice Case

by Jeff DeFrancisco

A Syracuse medical malpractice lawsuit can take a long time to resolve. For starters, an investigation must be conducted, an expert must be retained, and suit must be filed – and that’s just to get the case started.

As matters progress, the parties usually exchange discovery requests in order to learn more about the evidence that will likely be presented at trial. This process takes at least a few months, and often much longer. In some cases, there can be additional complications that create unexpected delays, such as the filing of a bankruptcy petition by a party or its insurance company.

Facts of the Case

In a recent appellate case arising in the Supreme Court, Erie County, the plaintiff was a man who filed suit in 2011, seeking compensation for injuries that he allegedly suffered due to the negligence of the defendant health care center’s agents and employees. The parties exchanged discovery requests the following year, but then the action was dormant for several years as the plaintiff pursued relief from the defendant’s insurer in out-of-state bankruptcy proceedings. In late 2016, the plaintiff revived the action by resubmitting the discovery demands that he had originally made in 2012.

Published on: September 13, 2019

New York Appellate Division Affirms Summary Judgment to Hospital Following Patient’s Death From Pre-Existing Bacterial Infection

by Jeff DeFrancisco

Losing a loved one is one of the most painful experiences in life. When the loved one’s death was preventable, the situation is even more difficult. If you have recently lost a family member and have reason to believe that a doctor, nurse, or hospital’s negligence was to blame, you should talk to a Syracuse medical malpractice lawyer about the possibility of filing a claim in court.

Medical negligence cases are usually met with great resistance from the medical professional(s) who is accused of neglect, so it is important to consult with an attorney as soon as possible so that the case can be properly investigated, and evidence can be gathered to support the plaintiff’s case.

Facts of the Case

In a recent case, the plaintiff was a woman seeking compensation for the death of a man (presumably a family member) whom she alleged died due to the medical negligence of the defendants, a hospital, a doctor, and others. According to the plaintiff, the decedent presented to the defendant hospital for emergency care, went into cardiac arrest, and died three days later. Unbeknownst to the decedent, he was apparently suffering from a bacterial staph infection known as Methicillin Sensitive Staphylococcus Aureus (MSSA) and had been for several days. (A laboratory facility had failed to inform the defendant of his infection.) In response to the plaintiff’s allegations that the decedent’s death was caused by their failure to properly treat and diagnose him during the emergency visit, the defendants filed a motion for summary judgment. The Supreme Court, Bronx County, granted the defendants’ motion, and the plaintiff appealed.

Published on: September 10, 2019

New York Appellate Court Holds that Plaintiff’s Choice of Venue in Medical Malpractice Case Was Proper

by Jeff DeFrancisco

Most people understand that the first step in pursuing monetary compensation in a Syracuse medical malpractice case is to file a claim in court. However, what is less commonly known is that there can sometimes be an argument about the proper court in which to file the claim.

When a defendant disagrees with a plaintiff’s choice of venue, he or she may opt to file a motion to change venue. However, a change of venue is not automatic, and the burden of proving that the plaintiff’s venue choice was improper rests with the moving party.

There are several factors to consider in determining whether venue is proper in a particular court, including, among other things, the defendant’s residence address and/or principal place of business.

Published on: August 30, 2019

Administrator’s Medical Malpractice Lawsuit Was Timely, Says New York Appellate Court

by Jeff DeFrancisco

When it comes to medical malpractice cases, there are some commonalities regardless of where the suit is filed – the burden of proof is on the plaintiff to prove that there was a deviation from the accepted standard of care, for example.

However, with regard to procedural matters, such as when a Syracuse medical malpractice claim must be filed and by whom, the law of the State of New York can differ from than that of sister states.

Thus, it is very important to talk to a Syracuse personal injury or wrongful death attorney about your case if you or a loved one has been hurt by a nurse, doctor, or hospital. Time is of the essence in such matters, so please do not delay in seeking advice about your case.