Attorneys Jeff D. DeFrancisco and Charles L. Falgiatano

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Syracuse Personal Injury Law Blog

Published on: April 28, 2020

Summary Judgment to Ambulance Company Affirmed by New York Appellate Tribunal

by Jeff DeFrancisco

Birth injuries caused by negligence during childbirth and delivery are, unfortunately, quite common. Just like surgeons and general practitioners, obstetricians and pediatricians sometimes make mistakes, and both mother and child can suffer serious, sometimes even fatal, consequences.

As with other types of Syracuse medical malpractice lawsuits, the plaintiff has the burden of proving his or her case by a preponderance of the evidence. Typically, the defendant will attempt to get the case dismissed prior to trial via summary judgment.

When this happens, the result usually depends on the strength of the parties’ respective medical expert witnesses. Unless there is a genuine issue of material fact presented by their affidavits, the court will likely rule in the defendant’s favor.

Published on: April 21, 2020

Negligent Entrustment Claim Should Have Survived Summary Judgment in Claim Brought by Family of New York Woman Killed in Scooter Accident

by Jeff DeFrancisco

In a Syracuse motorcycle accident negligence lawsuit, the premise is simple: the defendant should be held legally liable to the person or family who was hurt by his, her, or its failure to act in a reasonably prudent manner. Four elements are required in order to prove negligence: duty, breach of duty, damages, and proximate cause.

In a car, truck , or motorcycle accident case, the defendant is usually averred to have breached a duty by failing to operate his or her vehicle as required by law. Speeding, distracted driving, and failure to yield are common examples of these types of claims. Sometimes, however, liability can arise in other situations.

Regardless of who is named as the defendant in a negligence lawsuit, the basic issue is, did the defendant conduct arise to a level that was unreasonable (or illegal) under the circumstances? If so, he or she can potentially be held liable for the damages incurred by the injured party or his or her family.

Published on: April 14, 2020

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

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.

Published on: April 7, 2020

New York Appellate Court Affirms Denial to Premises Owners in Slip and Fall Case

by Jeff DeFrancisco

Under New York law, those who operate businesses that have parking lots, sidewalks, or steps attached to their premises have certain duties to those who use those areas to walk into the owner’s shop, store, or other establishment in order to conduct business. As is typical in personal injury lawsuits, the burden of proof in a Syracuse premises liability lawsuit is on the plaintiff to prove his or her case by a preponderance of the evidence. In many cases, however, the defendant will attempt to have the plaintiff’s case dismissed prior to trial via a motion for summary judgment. In cases involving snow and ice, the defendant may argue that the accident happened during a storm and that, thus, it should not be held liable for the accident. In such a situation, it is up to the defendant to provide credible evidence of the weather conditions at the time of the plaintiff’s slip and fall accident.

Facts of the Case

In a recent case, the plaintiff was a woman who allegedly slipped and fell in a snowy parking lot owned by the defendant convenience store. She filed suit in the Supreme Court of Niagara County, seeking compensation for her injuries. The defendant filed a motion for summary judgment, arguing that it had no duty to clear the snow and ice upon which the plaintiff fell because there was still a storm in progress at the time of the plaintiff’s fall. The trial court denied the defendant’s motion, and the defendant filed an appeal.

Decision of the Court

The New York Appellate Division, Fourth Department, affirmed the lower court’s denial of the defendant’s summary judgment motion. In so holding, the court noted that the defendant relied primarily upon a meteorologist’s affidavit to the effect that it was still snowing in the town in which the accident occurred at the time of the plaintiff’s fall. In reviewing this affidavit, the appellate division pointed out that the records upon which the defendant’s expert relied were taken from three other towns – not the town in which the plaintiff fell. In opposition to the defendant’s motion for summary judgment, the plaintiff offered a different meteorologist’s report, in which the meteorologist opined that there was no way to state within a reasonable degree of professional certainty whether or not it was snowing at the time in question in the town in which the plaintiff fell.

Published on: March 29, 2020

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

by Jeff DeFrancisco

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: March 13, 2020

New York No-Fault Exceptions Partially Applied in Car Accident Involving Mother and Child

by Jeff DeFrancisco

Under New York law, there are certain categories of injuries that can take a case outside the limitations of the “no fault” laws that would otherwise apply (and limit the injured person’s recovery substantially). Of course, as with everything else concerning Syracuse car accident cases, the insurance company that insured the careless driver will probably argue that the case should stay within the confines of no fault – thus saving them a payout on an injury claim caused by their negligent or reckless insured. Ultimately, these issues are resolved by a judge (and a jury if the case proceeds that far) – at least in cases in which the injured person retains counsel and fights for his or her legal rights, rather than allow the insurance adjuster to decide what is or is not due the victim.

Facts of the Case

The plaintiff in a recent case were the parents of a minor child who was allegedly injured in a car accident caused by the defendant driver. The wreck happened when the car in which the child was riding was struck from behind by the defendant driver while waiting to turn left. Neither the minor child nor his mother (who was driving the car) sought medical care immediately after the accident. However, both later complained of injuries that they believed were caused by the crash. The parents filed suit against both the driver and owner of the vehicle on the minor’s behalf, and the mother sued in her own right, as well, seeking monetary compensation for medical expenses, pain and suffering, and other losses caused by the motor vehicle accident.

The defendants filed a motion for summary judgment dismissing the plaintiffs’ complaint. The Supreme Court of Broome County partially granted the motion, thereby dismissing the mother and the child’s claims of serious injury under the permanent consequential limitation of use category and dismissing the mother’s claim of serious injury under the significant limitation of use category. The defendants appealed the trial court’s denial of the remainder of their motion; the plaintiffs cross appealed.

Published on: March 10, 2020

New York Court Affirms Dismissal of Product Liability Lawsuit Involving Remote Control Boom Crane

by Jeff DeFrancisco

In a Syracuse product liability lawsuit, the plaintiff may have multiple theories of liability – design defect, failure to warn, negligence, etc. Because several different entities in the supply chain may be held liable, these types of cases may have multiple defendants, as well.

Often, one or more defendants will seek to have the case dismissed as to them. Depending upon how the court rules on these motions, the case may proceed to trial against a single defendant or multiple defendants, or it may be dismissed entirely. The testimony of expert witnesses is often crucial in these cases, as the plaintiff must be able to show that there is enough evidence for the case to proceed to trial.

Facts of the Case

The plaintiffs in a recent case were a man who was allegedly pinned and crushed due to a malfunctioning remote control device that was used to operate a boom crane. The plaintiff, joined by his wife, filed suit against several entities that they believed were responsible for the manufacturing, distribution, and sale of the device, asserting claims for strict liability and breach of warranty. After the man died in 2016, his wife continued the action both individually and as the administratrix of his estate, adding wrongful death and conscious pain and suffering causes of actions.

Published on: February 29, 2020

New York Appellate Court Reverses Entry of Summary Judgment to Medical Providers in Fatal Hypoxic Brain Injury Medical Malpractice Case

by Jeff DeFrancisco

In most Syracuse medical malpractice cases, one or more healthcare provider defendants will file what is known as a “motion for summary judgment.” This procedural device may sound harmless enough, but it is often deadly to the plaintiff’s pursuit of fair compensation for an act of medical negligence.

Summary judgment can effectively end a plaintiff’s case as to certain defendants, certain claims, or in its entirety. When a trial court grants such a motion, the court is basically telling the plaintiff that, even if everything he or she says is true, there is no genuine issue of material fact in his or her case and the defendant is entitled to judgment as a matter of law. Fortunately, there is an appellate process for reviewing a trial court’s granting of summary judgment. Many such appeals are successful, giving the plaintiff’s a second chance to have his or her case proceed to a trial on the merits.

Facts of the Case

In a case arising in the Supreme Court of Erie County, the plaintiff was the administratrix of the estate of a man who died from acute respiratory failure following a hypoxic brain injury that occurred as a result of an emergency tracheostomy that was performed when the man returned to the defendant medical center after he had been dismissed earlier in the day when the defendant anesthesiologist and a nurse (who was employed by the medical center) failed in their attempts to intubate the man in preparation for surgery on his shoulder.