Rochester Medical Malpractice and Personal Injury Lawyer Blog
When a patient who suffers harm due to incompetent medical care wishes to pursue damages in a civil lawsuit, it is essential that the patient file the lawsuit within the time constraints set forth under the law. Additionally, as demonstrated in a recent New York appellate orthopedic malpractice case, a plaintiff seeking damages for medical malpractice must move his or her case forward at a reasonable pace, otherwise, the case may be dismissed. If you were injured by careless orthopedic care, it is in your best interest to consult a skillful Rochester orthopedic malpractice attorney regarding what measures you can take to protect your interests.
Factual and Procedural Background of the Case
It is alleged that the plaintiff filed a medical malpractice lawsuit against the defendant hospital and defendant orthopedic surgeon, alleging that she suffered harm due to a negligently performed orthopedic surgery. The plaintiff repeatedly refused to submit to a deposition, and in response, the defendants filed motions to compel the plaintiff to appear for her deposition, which the court granted. Ultimately, the defendants filed a motion to dismiss the plaintiff’s complaint if she did not appear for a deposition by set date. The court issued a conditional order of dismissal, stating that if the plaintiff did not appear for her deposition, her case would be dismissed. The plaintiff did not appear, after which she filed a motion to renew the defendants’ motions. The court denied the plaintiff’s motion, and the plaintiff appealed.
Dismissal for Failing to Comply with Discovery Orders in a Medical Malpractice Case
Upon review, the appellate court found that the trial court properly exercised its discretion by issuing a conditional order of dismissal, given the plaintiff’s record of failing to comply with court orders that required her to appear for her deposition. The court was not persuaded by the plaintiff’s argument that the defendants’ motions should be renewed because her behavior was not contumacious or willful, explaining that by issuing a conditional order, the trial court relieved itself of the need to analyze whether the plaintiff willfully resisted submitting to her deposition.
Further, the court noted that granting the plaintiff’s motion to renew the defendant’s motion was not warranted because the plaintiff failed to submit any new facts in support of her motion. Instead, the plaintiff solely relied upon facts that arose after the conditional order was issued. Lastly, the court explained that the plaintiff’s motion was procedurally improper, as she should have filed a motion to vacate the order dismissing her claims on the grounds of excusable fault. The court found, however, that even if it treated the plaintiff’s motion as a motion to vacate, the motion should be denied, as although the plaintiff set forth a reasonable excuse for her failure to abide by the conditional order, she failed to set forth a meritorious claim for medical malpractice.
Meet with an Experienced Malpractice Attorney
If you sustained damages due to inadequate treatment rendered by an orthopedic surgeon, it is wise to meet with an experienced Rochester orthopedic malpractice attorney to discuss what evidence you must produce to demonstrate you should be awarded damages. The seasoned attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers can assess the circumstances surrounding your harm and work with you to craft compelling arguments in favor of your recovery of compensation. We can be reached at 833-200-2000 or via our online form to set up a free and confidential meeting.
