Syracuse Personal Injury Law Blog
Pursuing fair compensation for an act of medical negligence involves many steps. In addition to the filing of a Syracuse medical malpractice lawsuit, there is the discovery phase of litigation, which is typically followed by the filing of motions for dismissal by the allegedly negligent doctors or hospital.
If the case survives this step, the next phase is trial, followed (in many cases) by an appeal.
Because medical malpractice lawsuits can be very lengthy and time-consuming, it is important to that a person who has been hurt by a careless doctor or other medical provider contact an experienced attorney as soon as possible.
Facts of the Case
In a recent appellate case originating in the Supreme Court of Bronx County, the plaintiff was the administratrix of a man who was allegedly injured by the medical negligence of the defendant doctors. In May 2018, the trial court granted summary judgment to one of the doctors. Thereafter, the plaintiff filed a motion for renewal and reargument. After hearing the plaintiff’s arguments as to the motion for renewal and reargument, the trial court adhered to the prior determination granting one of the doctor’s motion for summary judgment and dismissing the complaint as against her. The plaintiff appealed.
The Court of Appeals’ Decision
The New York Appellate Division, First Department, affirmed the order of the Supreme Court of Bronx County. According to the court on appeal, it was undisputed that the doctor had met her prima facie burden of establishing that there was an absence of proof as to a departure from good and accepted medical practice or, alternatively, that, if such a departure did exist, that such departure did not proximately cause the injuries at issue. Although the plaintiff did file an affidavit from an expert witness concerning the alleged negligence of the defendants, the court held that this affidavit was not sufficient to raise a triable issue of fact. Although the plaintiff argued that the affidavit in question added additional details giving rise to a factual dispute fit for the trier-of-fact, the appellate court disagreed. According to the reviewing tribunal, the affidavit improperly raised a new theory of liability for the first time. The offering of a “distinct and conflicting theory” (that the alleged act of malpractice was the defendant’s failure to diagnose and treat congestive heart failure – instead of flutter or atrial fibrillation) in opposition to a motion for summary judgment was not permissible, according to the court.
In so holding, the court deemed it unnecessary to respond to the plaintiff’s argument that she should have been granted leave to amend her complaint or her bill of particulars. In the court’s view, the plaintiff had not moved for such relief, so the argument was not to be considered on appeal. The court was likewise not persuaded by the plaintiff’s assertions about the fact that a different judge decided the motion than initially heard the oral arguments on the issue. This was permissible because the question was purely legal, rather than factual. The court also pointed out that any arguments that the plaintiff may have made during oral argument that were not containing in the opposition brief pertained to the motion to reargue or renew, rather than to the issue of whether summary judgment was proper.
Talk to a Syracuse Lawyer About a Medical Negligence Case
Speaking with an experienced Syracuse medical malpractice lawyer is the first step towards pursing the compensation that you may be due for injuries suffered due to a doctor’s neglect. To schedule a free consultation to learn more about how the attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers can be of assistance in your case, call us at 833-200-2000.