Medical Malpractice

Court Discusses Grounds for Dismissing New York Medical Malpractice Cases

Published on: March 25, 2019 | By DeFrancisco & Falgiatano

In many medical malpractice cases, there is more than one medical care provider that may be liable for causing the plaintiff harm. Unfortunately, in some cases, the court will dismiss a person’s medical malpractice case in its entirety if the defendant physicians offer sufficient proof that they did not deviate from the applicable standard of care.

As shown in a recent New York case in which the plaintiff alleged gynecologic medical malpractice against multiple doctors, the court will not dismiss the injured party’s claim against all of the defendants unless each defendant rebuts any specific allegations of malpractice that were set forth by the injured party. If you or a loved one were harmed due to gynecologic medical malpractice, it is in your best interest to speak with a trusted Rochester medical malpractice attorney to discuss the facts of your case and your options for seeking damages.

The Plaintiff’s Treatment

Reportedly, the plaintiff treated with the defendants, an obstetrician/gynecologist, and a perinatologist, throughout her high-risk pregnancy. It was noted throughout the plaintiff’s pregnancy by the defendant obstetrician/gynecologist that she had a low lying placenta. At the end of her pregnancy, the plaintiff underwent a procedure that was performed by the defendant obstetrician/gynecologist that was meant to induce labor but caused the plaintiff to hemorrhage.

Court Rejects Agreement Limiting the Right to Pursue a Medical Malpractice Claim in a New York Case

Published on: March 24, 2019 | By DeFrancisco & Falgiatano

People enter into contracts every day, including contracts promising not to sue in the event of harm. While a contract that is entered into voluntarily will typically be upheld by the court if a contract violates public policy it may be deemed unenforceable. This was illustrated in a recent case decided by a New York court, in which the court found that a contract that purported to govern a patient’s right to pursue a medical malpractice claim was void. If you were harmed by negligent medical care and wish to seek compensation from your care provider, you should meet with a capable Rochester medical malpractice attorney to discuss the facts of your case.

The Agreement Between the Parties

Allegedly, the defendant performed a laparoscopic hysterectomy on the plaintiff. During the surgery, the defendant pierced the plaintiff’s small intestine, resulting in severe and life-threatening complications. The plaintiff subsequently filed a medical malpractice lawsuit against the defendant. Prior to the surgery, the parties signed a contract referred to as Agreement as to Resolution of Concerns that was intended to limit the plaintiff’s right to pursue a medical malpractice claim against the defendant. To the extent the agreement permitted the plaintiff to file a malpractice lawsuit it affected how the lawsuit was to be handled. Specifically, the agreement prohibited the plaintiff from bringing a claim that was deemed meritless or frivolous based on the determination of a certain group, and if a claim was brought, limited the plaintiff’s use of experts. Following the filing of the lawsuit, the plaintiff filed a motion to have the agreement deemed unenforceable, arguing that it was unconscionable and contravened public policy.

Violation of Public Policy

The court noted that the public policy implications of an agreement between a doctor and a patient that limited the patient’s right to pursue a malpractice claim was an issue of first impression. The court notes that while parties are free to stipulate to a waiver of rights, an agreement that is clear an unambiguous will nonetheless be found invalid if it violates public policy by conflicting with an overriding public interest. To determine whether an agreement conflicts with a public interest the court will look at multiple factors, including legislative intent.

New York Court Discusses Factors Permitting Late Notice of a Medical Malpractice Claim Against a Public Corporation

Published on: March 11, 2019 | By DeFrancisco & Falgiatano

The statute of limitations for pursuing a medical malpractice claim in New York is two years and six months from the date of harm. In cases where the medical care provider is a public corporation, however, different notice requirements apply.

The appellate division of the Supreme Court of New York recently discussed the circumstances in which a plaintiff will be permitted to file late notice of a claim against a public corporation. If you suffered injuries or an illness because of inadequate medical care, you should speak with a proficient Rochester medical malpractice attorney to discuss the circumstances surrounding your harm and your options for pursuing compensation.

Procedural Background

It is reported that the plaintiff filed a petition for leave to file a late notice of a claim averring medical malpractice against the defendant, a public corporation. The trial court denied the petition and the plaintiff appealed. On appeal, the trial court ruling was affirmed.

New York Court Finds No Error In Verdict Sheet in Medical Malpractice Case

Published on: March 4, 2019 | By DeFrancisco & Falgiatano

In a medical malpractice case, it is essential to set forth every manner in which malpractice was allegedly committed, and present evidence of the malpractice in a clear manner at trial. A plaintiff’s failure to provide sufficiently present evidence of malpractice can result in verdict sheets that do not adequately address the alleged malpractice and a verdict in favor of the defendant.

A New York appellate court recently affirmed a jury’s verdict in favor of the defendant, finding that the court did not err in adding questions to the verdict sheet regarding the alleged malpractice, due to the fact that the evidence presented only indicated malpractice in one aspect of care. If you sustained harm due to insufficient care or testing, it is important to retain a skillfulRochester medical malpractice attorney who will work diligently to help you pursue damages for your harm.

The Plaintiff’s Surgery

Reportedly, the plaintiff underwent surgical resection of his colon, which was performed by the defendant. During the surgery, the defendant performed anastomosis, which is a procedure in which a damaged portion of the colon is removed and the healthy portions are reconnected. The plaintiff subsequently developed a leak at the site of the anastomosis and suffered sepsis, peritonitis and renal failure due to the leak. He filed a medical malpractice action against the defendant. Following a trial, a jury issued a verdict in favor of the defendant, after which the plaintiff appealed.

New York Court Discusses Proof Needed to Show Deviation from Standard of Care

Published on: February 28, 2019 | By DeFrancisco & Falgiatano

The quality of testimony provided by an expert can make or break a plaintiff’s medical malpractice case. An expert must show not only that he or she is qualified to offer an opinion regarding the alleged malpractice in the particular specialty in which the defendant practices, he or she must also offer an opinion sufficient to show the manner in which the defendant deviated from the standard of care. If an expert fails to meet these requirements, it can be fatal to a plaintiff’s case.

This was illustrated in a recent case decided by the appellate division of the Supreme Court of New York, where the court held that the plaintiff’s expert’s report was insufficient to show there was an issue of fact as to whether the defendant failed to meet the standard of care. If you suffered harm due to medical malpractice, it is in your best interest to consult a skilled Rochester medical malpractice attorney to discuss your case.

Facts Regarding the Treatment of the Decedent

Reportedly, the plaintiff decedent underwent a knee replacement surgery on July 30, 2010. The surgery was performed by the defendant surgeon at the defendant hospital. The decedent had multiple health issues, including anemia and hypertension, at the time of the surgery, but she tolerated the surgery well. Following the surgery, she was prescribed an anticoagulant to prevent the formation of deep venous thrombosis (DVT). She remained hospitalized in stable condition. On August 4, 2010, however, she died due to a pulmonary embolism caused by a DVT in her leg.

New York Court Explains Continuous Treatment Doctrine in Medical Malpractice Cases

Published on: February 25, 2019 | By DeFrancisco & Falgiatano

New York medical malpractice lawsuits, like all civil claims, are governed by statutes of limitations. As such, if a plaintiff does not pursue his or her claim within the time limitations set forth under the law, he or she waives the right to recover. In some cases, however, the statute of limitations may be tolled by the continuous treatment doctrine, which allows the injured party additional time to pursue his or her claim.

The Supreme Court of New York, Appellate Division, recently explained the continuous treatment doctrine, in a case in which it ruled that the plaintiff’s claim was not barred by the statute of limitations due to the application of the doctrine. If you were injured by substandard medical care, you should contact an experienced Rochester medical malpractice attorney as soon as possible to discuss your options for seeking damages.

Factual and Procedural Background

Reportedly, the plaintiff underwent hip replacement surgery at the defendant hospital on July 9, 2008. She filed a Complaint alleging medical malpractice against the defendant hospital and defendant surgeon on December 16, 2013. The defendants filed a motion for summary judgment arguing that the Complaint was filed more than two years and six months after the plaintiff ceased treatment with the defendants and that therefore, the action was barred by the statute of limitations. The plaintiff opposed the motion, arguing that she continued treating until November 26, 2011, which was less than two and a half years before she filed her lawsuit. The trial court granted the defendants’ motion, after which the plaintiff appealed.

New York Court Discusses Spoliation of Evidence in Medical Malpractice Case

Published on: February 11, 2019 | By DeFrancisco & Falgiatano

In any case where it is alleged that inadequate treatment rendered by a medical care provider caused a person harm it is important to retain any evidence that supports the inference of medical malpractice. If a person loses or destroys evidence of the quality of the care rendered, it may not only affect the person’s case, it may result in sanctions or the case being dismissed altogether.

The appellate division of the Supreme Court of New York recently discussed the standard for taking adverse action against the plaintiff due to the loss of evidence. In doing so, the court affirmed that the plaintiff was not responsible for the loss of evidence and should not face sanctions. If you were harmed by inadequate medical care, it is crucial to keep any evidence of the treatment you received and to retain a skilled Rochester medical malpractice attorney to assist you in your pursuit of damages from the providers who caused your harm.

Facts Regarding the Evidence in Question

Reportedly, the plaintiff filed a medical malpractice suit against the defendant doctor. At some point prior to commencing the subject lawsuit, the plaintiff obtained mammography films from the hospital where they were taken and gave them to another facility for continuing treatment. The plaintiff was not in possession of the films at any time after she gave them to the second facility. After the lawsuit was filed, it became evident that no one could locate the plaintiff’s mammography films. As such, the defendant filed a motion to strike the Complaint, alleging spoliation of the evidence. The trial court denied the motion, after which the defendant appealed.

New York Court Find Triable Issue of Fact in A Medical Malpractice Case

Published on: February 4, 2019 | By DeFrancisco & Falgiatano

In a medical malpractice lawsuit, both the plaintiff and defendant have burdens of proof that they must meet to win the case. If a defendant meets the burden of proof of producing evidence, that on its face shows no substandard treatment, the case may be dismissed unless the plaintiff rebuts the defendant’s evidence by showing there is a triable issue of fact.

This was illustrated in a recent New York appellate court case in which the court overturned a trial court ruling granting the defendants’ motion for summary judgment, where the appellate court found there was a triable issue. If you suffered harm due to insufficient care or monitoring in a hospital you, should meet with an experienced Rochester medical malpractice attorney to determine whether you may be able to seek damages from the hospital and any doctor that treated you.

Factual Allegations

Reportedly, the plaintiff was admitted to the defendant hospital with stroke symptoms. At some point after he was admitted, he fell out of his hospital bed. The plaintiff and his wife subsequently filed a medical malpractice lawsuit against the defendant hospital and the defendant physician that treated him at the hospital. Following discovery, the defendants filed a motion for summary judgment, which the trial court granted. The plaintiffs then appealed.

New York Court Explains the Emergency Doctrine in Medical Malpractice Cases

Published on: January 25, 2019 | By DeFrancisco & Falgiatano

Doctors are obligated to provide care that comports with the standard practices of an average doctor in the same field in his or her community. In cases where medical malpractice is alleged, the plaintiff is required to show a deviation from the standard of care and harm resulting from the deviation. In turn, doctors may be able to assert a defense to explain their deviation, such as the emergency doctrine, which allows them to avoid liability.

The emergency doctrine only applies in certain circumstances, however, as was recently explained in an opinion issued by the Supreme Court of New York. If you suffered harm due to inappropriate care, you should meet with a skilled Rochester medical malpractice attorney to develop a plan to seek damages from the responsible parties.

Facts Regarding the Patient’s Treatment

Reportedly, the patient underwent surgery on her cervical spine. Because of swelling in her neck, the patient underwent a tracheotomy and tracheostomy five days after the surgery, in which a hole was cut into her windpipe and a tube was placed into her windpipe so that she could breathe. Following the surgery, she was walking around and talking. A few days after the tracheostomy was placed, a nurse met resistance placing an inner tube into the tracheostomy tube and the patient became short of breath. The nurse attempted to suction the tube but the patient’s oxygen levels dropped and she lost consciousness. The nurse then paged the defendant, an anesthesiologist.

Court Finds Expert Report Sufficient to Show Medical Malpractice in New York Case

Published on: January 21, 2019 | By DeFrancisco & Falgiatano

In cases where the issues presented are a beyond the scope of understanding of the average person, one or both parties will introduce experts to offer opinions on disputed facts and theories of liability. For example, the vast majority of medical malpractice cases require one or more experts to opine that the medical provider in question breached the standard of care and the breach resulted in the subsequent harm.

Recently, in a case applying New York law, the District Court for the Northern District of New York held that the expert report provided by the plaintiff in a medical malpractice case was sufficient to allow the case to proceed, despite the defendants’ arguments to the contrary. If you or a loved one suffered harm due to inadequate care or a missed diagnosis, it is in your best interest to meet with an experienced Rochester medical malpractice attorney to assist you in your pursuit of damages from the negligent providers.

Facts Surrounding the Patient’s Care and Subsequent Death

Reportedly, the patient complained of chest pains and lost consciousness, after which he was transported to the defendant hospital’s emergency department. The defendant doctor, who worked in the emergency department, examined the patient physically, monitored his vital signs and ordered various tests. The defendant doctor ultimately diagnosed the patient with vasovagal syncope, dehydration, reactive airway disease and wheezing. He prescribed the patient medication and saline and discharged the patient. Additionally, the defendant doctor referred the patient to a clinic for a follow-up appointment where he would be re-evaluated and directed him to go to the follow-up appointment two to four days.