Surgery Errors

New York Court Explains Leave to Amend Answers in Medical Malpractice Cases

Published on: March 14, 2022 | By Jeff DeFrancisco

Generally, defendants in medical malpractice actions must set forth all of their affirmative defenses in their answer to the plaintiff’s complaint, and if they do not, they waive the right to assert them. Typically, though, a defendant that failed to include all their affirmative defenses in a response can seek leave from the court to file an amendment. In a recent ruling, a New York court discussed the factors evaluated when a defendant seeks leave to amend their answer to a complaint in a medical malpractice case. If you were hurt by the negligence of a physician, it is in your best interest to speak to a Syracuse medical malpractice attorney regarding your rights.

The Procedural History of the Case

It is alleged that the plaintiff underwent a hysterectomy to remove a uterine tumor. The defendant performed the surgery. The plaintiff suffered damage to her ureter in the procedure, which she alleged was the result of the defendant’s negligence. Thus, she filed a medical malpractice case against him. The defendant filed its answer to the plaintiff’s complaint but sought leave from the court to amend its answer to include additional affirmative defenses after the plaintiff’s deposition. The court denied the motion, and the defendant appealed.

Leave to Amend Answers in Medical Malpractice Cases

On appeal, the appellate court found that the trial court improperly exercised its discretion in denying the defendant’s motion and, therefore, reversed the trial court ruling. Under New York law, even if a defendant was or should have been aware of the theories and facts they wish to assert in an amended answer for some time before seeking the amendment, delays, in and of themselves, are not sufficient grounds for denying a leave to amend. Continue Reading ›

New York Woman’s Surgical Malpractice Case Should Not Have Been Dismissed on Summary Judgment

Published on: January 23, 2021 | By Jeff DeFrancisco

Motions for summary judgment are common in Syracuse medical malpractice cases. Summary judgment is a pre-trial procedure in which one party or the other (but usually the defendant) asks the court to award judgment to that party on the basis that there are no genuine issues of material fact on one or more claims.

If a court grants summary judgment, it is in effect saying that, even if any questionable evidence is construed in the light favoring the party opposing the motion, there really isn’t anything to fight about. In other words, a jury trial is not necessary because there are not any material facts that must be resolved.

When summary judgment is granted, the losing party has the right to seek appellate review of the lower’s court’s decision. When summary judgment is denied, sometimes there is an immediate appeal but, in some situations, the issue is addressed during the post-trial phase of the case.

Denial of Summary Judgment in Medical Negligence Case Upheld on Appeal by New York Court

Published on: May 31, 2020 | By Jeff DeFrancisco

In a Syracuse medical malpractice lawsuit, the burden of proof is on the plaintiff. This means that he or she must be able to prove the elements of professional negligence, including a deviation from the acceptable standard of care and proximate causation between this breach of care and the injuries for which the plaintiff seeks monetary compensation, by a preponderance of the evidence.

Because issues of professional negligence typically involve matters that are beyond a layman’s knowledge, most malpractice cases involve the testimony of multiple expert witnesses, who are called upon to explain complex matters in a way that will help jurors resolve the issues. Often, the plaintiff and the defendant will each have experts, and those experts’ opinions may vary widely. Assuming that a case survives the summary judgment phase of litigation, it will be the jury’s job to decide which side has “made their case,” so to speak.

Facts of the Case

In a recent case appealed from the Supreme Court for Bronx County, the plaintiff was a woman who suffered from a large aneurysm in the artery behind her left eye. She received various treatment for this condition, including the placing of a stent and a balloon occlusion test performed by the defendant doctor. In response to the plaintiff’s medical malpractice claim, the doctor sought summary judgment insofar as it concerned the plaintiff’s post-surgical treatment after the aforementioned medical procedures. The trial court denied the doctor’s motion, and he appealed.

New York Court Affirms Summary Judgment to Doctors in Medical Malpractice Case Arising from Patient’s Death Due to Pulmonary Embolism

Published on: April 14, 2020 | By Jeff DeFrancisco

A doctor or healthcare provider’s failure to diagnose and/or properly treat a pulmonary embolism can result in a Syracuse surgical malpractice claim. Potentially life-threatening, a pulmonary embolism occurs when a blood clot (usually from another part of the body) blocks one of the pulmonary arteries in the lungs.

A pulmonary embolism can result in shortness of breath, chest pain, and cough; less common symptoms include irregular heartbeat, dizziness, sweating, swelling, and fever. If not promptly diagnosed or properly treated, a pulmonary embolism can cause serious injury or even death in some patients. Because surgery is one of the main causes of blood clots that result in pulmonary embolism, it is especially important that surgeons take measures to prevent, recognize, and/or treat such conditions in their patients.

Facts of the Case

The plaintiff in a recently decided case arising in the Supreme Court of New York County was the administratrix of a 49-year-old woman who died from a pulmonary embolism that was allegedly caused by bilateral deep vein thromboses in her legs. According to the plaintiff’s complaint against the defendants (a family medicine physician, a cardiologist, and others), the decedent’s condition developed after she underwent a two-day back surgery. Both the family medicine physician and the cardiologist consulted on the decedent’s care. They also allegedly reviewed certain electrocardiograms that showed T wave inversions. In the plaintiff’s view, the defendants deviated from good and accepted standards of medicine by failing to order additional testing in order to determine the cause of the decedent’s T wave inversion.

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

Published on: February 20, 2020 | 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.

Late-Filing of New York Medical Malpractice Claim Permitted Under Relation-Back Doctrine

Published on: August 15, 2019 | By Jeff DeFrancisco

Those who have been hurt by a doctor, nurse, or hospital have a limited time in which to file a medical malpractice claim. Usually, claims not filed within this time period are dismissed by the court as untimely.

However, there are a limited number of circumstances in which a late-filed claim may be allowed. One such exception is referred to as the “relation-back” doctrine. A recent appellate case explored the applicability of the doctrine to a case in which additional defendants were added to an ongoing lawsuit after the expiration of the usual limitations period. If you or a loved one has been injured and you wonder if it is too late to file a claim, it is important that you speak with a Syracuse medical malpractice attorney as soon as possible.

Facts of the Case

In a recent appellate case originating in the Supreme Court of Kings County, the plaintiff filed a wrongful death claim against a medical center and others following the death of the decedent in May 2009. Prior to her death, the decedent had been treated for abdominal pain in the defendant medical center on multiple occasions over a period of about one month. The plaintiff’s suit, which was filed in 2011, named the medical center and several individual healthcare providers as defendants. In 2014, the defendant medical center filed a third-party action against another provider who had become affiliated with a different facility, along with three other third-party defendants.

New York Appellate Division Affirms Denial of Summary Judgment in Medical Malpractice Wrongful Death Suit

Published on: June 29, 2019 | By Jeff DeFrancisco

In a Syracuse medical malpractice case, the plaintiff is usually the person who was the victim of a doctor or hospital’s negligence. However, sometimes an act of medical negligence is so severe that it results in a patient’s death.

In such a situation, there is still the possibility of a lawsuit against the responsible medical provider. However, the procedure is more complex than if the patient himself or herself was available to pursue monetary compensation.

Typically, it is the personal representative of the estate of the deceased medical negligence victim who brings suit in such a situation. This may or may not be a family member of the deceased individual (although any proceeds will likely go to the victim’s family members).

New York Appellate Court Reverses Summary Judgment to Medical Provider in Patient’s Malpractice Lawsuit

Published on: May 31, 2019 | By Jeff DeFrancisco

In a Syracuse medical malpractice case, the plaintiff has the burden of proving that he or she suffered personal injury as a proximate result of the defendant’s negligence.

Medical negligence cases are often filed against doctors, but they may also be filed against other healthcare providers, including hospitals and other facilities.

It is not unusual for the defendant in a medical negligence case to file what is called a “motion for summary judgment” in an attempt to have the trial court dismiss the claim against it on the basis that it is entitled to judgment as a matter of law. If a trial court grants summary judgment to the defendant, the plaintiff has the option of asking the appellate court to review that decision.

Woman Sues Physician for Near-Death Experience During Butt-Lift Surgery

Published on: December 26, 2018 | By Jeff DeFrancisco

While butt-lifts have quickly become one of the most popular cosmetic procedures in the United States, the surgery can be extremely dangerous. If you have experienced harm due to a plastic surgeon’s negligence in performing a butt-lift, you need to reach out to a trusted Syracuse surgery malpractice attorney. At DeFrancisco & Falgiatano Personal Injury Lawyers, we will be able to examine the circumstances surrounding your injury and determine whether the adverse outcome was the result of malpractice.

Recently, a 31-year-old woman sued a Miami hospital for a near-death experience after a butt-lift operation. The woman, who travelled from California to Miami for the operation, claims that she remembers nurses and doctors shouting, “she’s bleeding! More blood, more blood!” in the operating room. The mother of two says she faded in and out of consciousness until the doctor’s staff called 911. At the hospital, the emergency room physician’s treated the patient’s punctured lumbar artery. To make matters worse, it turned out that the plastic surgeon who performed the initial procedure was not certified by the American Board of Plastic Surgery although he claimed he was. The woman filed a medical malpractice against the plastic surgeon and the hospital.

Syracuse Plastic Surgery Malpractice

While this incident happened in Florida, the reality is that plastic surgery errors are also common in New York. Individuals who opt for plastic surgery either do so to improve their appearance, correct disfigurement or for health reasons. If you have been injured as a result of a botched plastic surgery, you may be able to hold the surgeon accountable through a medical malpractice claim.

Deceased Woman’s Estate Wins Millions for Botched Surgery in New York

Published on: November 2, 2018 | By Jeff DeFrancisco

Surgeons have an obligation to use the utmost care when performing a procedure. Sadly, this does not always happen. If you or a loved one has suffered injury due to a surgeon’s carelessness, error or misconduct, our trusted Syracuse surgical malpractice attorneys can help you seek the justice and compensation you deserve. At DeFrancisco & Falgiatano Personal Injury Lawyers, we are dedicated to helping victims of medical malpractice throughout New York.

A New Jersey woman checked into NYU Langone Hospital in November of 2011 for the removal of a benign polyp on her colon. During the surgery, the surgeon allegedly failed to notice that he had burned part of the patient’s small bowel, according to the plaintiff’s lawyer. The patient was in excruciating pain after the surgery. Despite this level of pain, it took the surgeon four days to order a CAT scan, which showed a severe infection. By the time the doctors went back in to operate, the patient was in septic shock and subsequently died. The woman’s family sued the doctor, and a Manhattan jury awarded the family $13 million.

Establishing Surgical Malpractice

Just like any other type of malpractice case, establishing surgical malpractice can be complicated. However, that does not mean you shouldn’t try, it just means you should have an experienced lawyer on your side who understand how to navigate this task. In New York, to prove surgical malpractice, you must show that there was a departure, on the part of the surgeon, from the recognized standard of care and that the patient’s injury or death was directly caused by the surgeon’s conduct. In short, the plaintiff must show that the doctor did something or did not do something that he or she was supposed to do, thereby injuring the patient. In the aforementioned case, the doctor was said to have burned a part of the patient’s small bowel and did not notice. This was considered a deviation from the recognized standard of care and a direct cause of the patient’s death, which is why he was found liable for malpractice.