Articles Posted in Lack of Informed Consent

Most surgical procedures involve some degree of risk, and the potential for harm can be elevated if the patient suffers from underlying health conditions. As such, it is a doctor’s duty to advise a patient of the possible adverse outcomes of a procedure before proceeding. If a physician fails to do so, it can lead to fatal complications. As discussed in a recent New York ruling, however, not all injuries that arise following a procedure are the result of negligence. If you were harmed by a physician’s failure to obtain your informed consent, it is advisable to speak to a Rochester medical malpractice attorney as soon as possible.

History of the Case

It is alleged that in October 2013, the decedent, who had a significant history of alcohol abuse, sought treatment from the defendant ophthalmologist due to vision issues. The ophthalmologist diagnosed cataracts in both eyes and recommended two separate surgeries for their removal. However, the ophthalmologist required the decedent to obtain medical clearance before proceeding. The decedent visited his primary care physician, who discovered that he suffered from atrial fibrillation and referred him to the defendant cardiologist for further evaluation. The cardiologist prescribed medications, including Metoprolol and aspirin, but did not prescribe anticoagulation medication due to the decedent’s alcohol abuse and medically cleared the decedent for surgery.

In the medical setting, treatment providers are required to advise patients of the risks and benefits of a treatment before offering it; if they fail to do so, they may be subject to a lack of informed consent claim. There are exceptions to the general rule, however, as discussed in a recent New York ruling. If you suffered losses due to a doctor’s failure to obtain your informed consent, you may be owed damages, and you should talk to a Rochester medical malpractice attorney as soon as possible.

Case Background

It is reported that the decedent’s estate filed a medical malpractice lawsuit arising from the defendants’ treatment of the decedent in December 2017. Specifically, the decedent was treated by the defendant primary care physician at the defendant medical facility after experiencing severe health complications. He followed up with the defendant primary care physician after he was discharged from the facility and was later transferred to a second hospital, where he ultimately succumbed to his illness.

Allegedly, the plaintiff filed a lawsuit, alleging that the defendants, including doctors, medical personnel, and related entities, failed to abide by the applicable standard of care, leading to the decedent’s death. The complaint set forth claims of negligence, wrongful death, and lack of informed consent. The defendants filed motions for summary judgment, seeking to dismiss the claims against them. Continue Reading ›

Medical records are a critical component of establishing liability in medical malpractice cases. As such, if a hospital named as a defendant in a medical malpractice case fails to retain records regarding a plaintiff’s treatment, it may be sanctioned by the court. Generally, though, the court will not impose the drastic remedy of striking the defendant’s pleading, as demonstrated in an opinion recently delivered by a New York court. If you sustained losses because of a doctor’s negligence, you should speak to a Rochester medical malpractice lawyer about what evidence you may need to prove liability.

The Facts of the Case

It is reported that the plaintiff, who was born at the defendant’s medical center, suffered injuries during her birth. She subsequently filed a lawsuit against the defendant, setting forth claims of medical malpractice, lack of informed consent, and negligent hiring and supervision. The defendant moved for summary judgment dismissal of the plaintiff’s lack of informed consent and negligent hiring and supervision claims.

Allegedly, the plaintiff cross-moved for summary for spoliation sanctions on the grounds that the defendant failed to preserve the plaintiff’s fetal monitoring strips. The trial court granted the defendant’s motion and denied the plaintiff’s motion while granting her leave to renew the motion to the extent it sought an adverse inference instruction at trial. The plaintiff then appealed. Continue Reading ›

Prior to offering their patients treatment, such as surgical procedures, doctors are required to explain the potential side effects of the course of care and explain alternative treatments. If they do not, and the patient subsequently suffers from complications or issues, the plaintiff may be able to assert medical malpractice claims against the physician, alleging that they failed to obtain their informed consent. Recently, a New York court explained liability for the failure to obtain a patient’s informed consent, in a matter in which it ultimately determined there was sufficient evidence to proceed to trial. If you suffered harm due to your treatment provider’s failure to obtain your informed consent, you might be owed compensation, and you should speak to a Rochester medical malpractice lawyer as soon as possible.

The Plaintiff’s Claims

It is reported that the plaintiff treated with the defendant doctor at the defendant hospital for back issues that arose following a car accident. The defendant doctor initially offered the plaintiff conservative treatment but later recommended that he undergo a laminectomy with possible fusion at the lumbar level of his spine. The plaintiff accepted the defendant doctor’s recommendation and scheduled the surgery.

Allegedly, on the day of the surgery, the defendant doctor advised the plaintiff he had changed his mind regarding the laminectomy and recommended that the plaintiff undergo the implantation of certain devices in his back. The plaintiff agreed after a brief discussion and underwent the procedure. He continued to experience pain and symptoms and sought care from another doctor. The second doctor stated his condition did not warrant the intervention he received and subsequently surgically removed the devices. The plaintiff then filed a lawsuit against the defendants alleging, among other things, that the defendant doctor committed malpractice by failing to obtain his informed consent. The defendants moved for summary judgment, and the court granted the motion, after which the plaintiff appealed. Continue Reading ›

It is well-established that in medical malpractice cases in New York, a defendant may obtain a ruling in its favor prior to trial if it establishes a prima facie showing that it is entitled to judgment as a matter of law. Even if a defendant meets its burden of proof, however, a plaintiff may be able to avoid a dismissal of his or her claims against the defendant, if the plaintiff demonstrates that an issue of fact remains that must be resolved via trial. A plaintiff cannot defeat a defendant’s motion for dismissal via summary judgment by introducing a new theory of liability, however, as demonstrated in a recent New York medical malpractice case. If you were injured by incompetent medical care, it is advisable to consult a seasoned Rochester medical malpractice attorney to discuss what evidence you must produce to obtain a favorable outcome.

Facts Regarding the Case

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant, alleging claims of lack of informed consent and negligence. The defendant filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims. The court denied the motion, and the defendant appealed.

Defeating a Defendant’s Motion for Summary Judgment in a Medical Malpractice Case

On appeal, the court reiterated the standard for determining whether a plaintiff’s medical malpractice claim should be dismissed under New York law. Specifically, the court stated that a defendant seeking dismissal via summary judgment in a medical malpractice action must set forth a prima facie showing that he or she either did not depart from the accepted practice of medicine or that any departure from the accepted practice did not cause the plaintiff’s harm. The court further explained that dismissal via summary judgment is not appropriate in cases in which the parties produce conflicting expert reports.

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It is the well-established law in New York that a plaintiff only gets one bite of the theoretical apple. In other words, a plaintiff cannot seek the same damages or litigate the same claims multiple times. Not only does this prevent a plaintiff from seeking to relitigate claims following a final judgment, but it also may prevent a plaintiff from pursuing multiple concurrent claims for the same damages against the same parties. This was discussed in a recent New York case in which the court assessed whether to stay a plaintiff’s state court medical malpractice claims pending resolution of her federal court malpractice claims. If you suffered harm due to negligent medical care, it is advisable to contact a dedicated Rochester medical malpractice attorney to discuss your options for seeking recourse.

Facts of the Case

It is alleged that the plaintiff underwent a surgical procedure that was performed by the defendant. She subsequently filed a lawsuit in the United States District Court for the Southern District of New York against the defendant asserting numerous claims, including intentional torts and medical malpractice, and alleged that the defendant caused her to suffer scars and other permanent harm, and performed the procedure without her consent. The defendant then filed a motion to stay the proceedings due to the fact that the plaintiff filed an action in the Supreme Court of the State of New York against the defendant, arising out of the same set of facts and asserting the same claims. The plaintiff opposed the motion.

Colorado River Abstention

Pursuant to the Colorado River Abstention Doctrine (the Doctrine), in cases in which there are concurrent actions in state and federal court that involved the same parties and the same underlying issues, the court can issue a stay as to one of the proceedings to avoid piecemeal litigation. The court explained that the Doctrine should only be applied in instances involving the contemporaneous exercise of concurrent jurisdictions. As such, the court must find the proceedings are parallel to issue a stay.

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