Medical Malpractice

Defendant Invokes New York Education and Public Health Laws’ Privileges to Prevent Discovery of Medical Records in New York Malpractice Case

Published on: October 30, 2017 | By DeFrancisco & Falgiatano

The New York Appellate Division, Third Division, analyzed, in a recent decision, the ability of defendants in New York medical malpractice lawsuits to assert statutory privileges during the discovery process. The court upheld the trial court’s ruling that the plaintiff’s discovery request was overly broad and vague, and therefore, the defendants did not have to disclose the information requested. The court relied on the analysis in a seminal case on the subject, Stalker v. Abraham, which outlines the statutory requirements of the privilege and the burden on defendants to prove its applicability.

When available, defendants often invoke the prohibitions on disclosure contained in the New York Education Law and the Public Health Law in tandem. These provisions are part of a policy to encourage open discussions with physicians about the credentialing process. The idea is that if the discussions are discoverable in litigation, physicians would not speak as candidly during these assessments. The hospital bears the burden of establishing the availability of the privilege. The hospital must show the following elements: (i) the hospital has a review procedure, and (ii) the information for which the privilege is asserted was obtained in connection with that review procedure. Without the protection of the privilege, any information the hospital has maintained related to a physician’s alleged negligence is generally relevant and subject to disclosure.

The defendant in Stalker, to support its assertion of privilege, submitted an affidavit from a medical credentialing specialist. She stated that the information requested would only be available through the credentialing process. She further stated that the purpose for the hospital’s credentialing process was to comply with any and all legal obligations that require that hospitals have established procedures in place to reduce medical malpractice. Moreover, it was in the specialist’s opinion that all of the information requested by the plaintiff was the sort of information gathered through peer review, credentialing, and quality assurance processes.

New York Medical Malpractice Decision Shows Risks of Negligent Catheterization

Published on: October 12, 2017 | By DeFrancisco & Falgiatano

Medical malpractice can lead to serious injuries and in some cases, even death. The plaintiff’s decedent in a New York medical malpractice case was placed in a difficult position when the decedent underwent two surgeries, and neither surgeon would take responsibility for the action that led to the decedent’s allegedly fatal injuries.The plaintiff’s decedent had two medical procedures, and both surgeons were named as defendants in the ensuing lawsuit. The first procedure was a gall bladder extraction. Following the surgery, the decedent experienced pain and returned to the hospital. The patient underwent scans, and the tests showed that there was no leakage or perforation. However, upon further review, the doctors weren’t so sure and proceeded to take X-rays of the area in question, using an endoscope. The defendants argued among themselves about who caused the perforation. Either it was caused in the first procedure or later, in the second procedure, with a catheter. Both defendants agreed that by the time of the second procedure, there was a leak in the bile duct, leading into the abdominal cavity.

Surgeon number 2 established his prima facie case on summary judgment by providing deposition testimony, medical records, and the statements of two experts that supported that he did not breach the standard of care, nor were the actions of surgeon number 2 the cause of the decedent’s alleged injuries. An expert in gastroenterology opined that the bile duct leak was pre-existing by the time surgeon number 2 had the patient under his care.

New York Medical Malpractice Case Against Anesthesiologist Reversed on Appeal

Published on: October 10, 2017 | By DeFrancisco & Falgiatano

When properly administered, anesthesia allows us to undergo surgery without experiencing pain. Unfortunately, when administered in a negligent manner, it can cause devastating injuries or death. In a recent decision, the Appellate Division, First Department, reversed a New York medical malpractice summary judgment ruling by the trial court. The plaintiff alleged that she underwent foot surgery at Manhattan Medical Suite. As a result of the negligent administration of anesthesia, she experienced extreme regional pain in her foot area.During the case’s pre-trial proceedings, the defendants, which included the surgical suite, the podiatrist, and the anesthesiologists, moved for summary judgment. The defendants established a prima facie case, as required under New York civil procedure rules, by supporting their motion with expert affidavits and deposition testimony. The defendants argued that the anesthesiologists’ use of propofol was unsuccessful in sedating the plaintiff. Moreover, the propofol did not infiltrate the tissue on the plaintiff’s hand. The plaintiff’s injuries, according to the defendants, could not have been caused by propofol.

The court then analyzed the plaintiff’s rebuttal of the defendant’s summary judgment evidence. The plaintiff’s medical expert was an anesthesiologist and pain medicine specialist. His testimony included a statement that a partial infiltration of propofol occurred at some point during the surgery, through which propofol entered the blood stream and caused the injury.

Hospital Residents as Named Defendants in New York Medical Malpractice Claims

Published on: October 5, 2017 | By DeFrancisco & Falgiatano

Successful surgical procedures require an entire team of medical professionals and staff. In addition to nurses and technicians, the surgeon may also rely on the assistance of a medical resident who is training to become a surgeon. Along with inexperience comes the increased likelihood that the resident might make mistakes, even under the supervision of a trained surgeon. It’s possible to seek liability against a medical resident, but New York medical malpractice law makes it difficult. In fact, here is a recent decision that considered whether the assisting resident could be held liable for alleged malpractice.The plaintiff filed a lawsuit to recover damages for medical malpractice. The complaint alleged that the plaintiff underwent a laparoscopy with a lysis of adhesions procedure and a subsequent exploratory laparotomy performed later that day. The procedure was performed by the defendant obstetrician/gynecologist, along with the assistance of a resident at the defendant hospital. In addition, another defendant acted as the anesthesiologist for the procedure. The plaintiff alleged that during the procedure, the obstetrician/gynecologist and the resident cut the uterine wall and failed to recognize and treat the resulting intra-abdominal bleeding, and the anesthesiologist allegedly administered the wrong form of pain medication for the internal bleeding. After the defendants filed for summary judgment, the trial court ruled in their favor. The plaintiff appealed the trial court’s decision on summary judgment.

On appeal, the court considered the liability of a resident. New York law, as stated in Soto v. Andaz, 8 AD 3d 470 – NY: Appellate Div., 2nd Dept. 2004, provides that a resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice as long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene.

The appeals court reasoned that the evidence showed that the plaintiff’s physician controlled the surgery, directed and supervised all of the actions of the assisting resident, and oversaw the injured plaintiff’s pre- and post-operative care, and that the assisting resident committed no act that departed from accepted medical practice. Therefore, the appeals court concluded that she was under the attending physician’s direct supervision at all times and did not exercise any independent medical judgment with respect to the injured plaintiff’s care and treatment, and the physician’s directions did not so greatly deviate from normal practice that the assisting resident should be held liable for failing to intervene. The appeals court ultimately affirmed the trial court’s ruling and dismissed the claims against the resident.

Expert Witness Fails to Properly Review Medical Evidence, Sinking Plaintiff’s New York Medical Malpractice Case

Published on: October 2, 2017 | By DeFrancisco & Falgiatano

Even supposedly routine surgeries carry risks and require that doctors perform those surgeries with an established standard of care. It can be a shocking experience to learn that a loved one has suffered complications as a result of a procedure that is commonly performed in hospitals across the United States. In a recent case, a New York man sued his surgeon for medical malpractice after he suffered complications from a procedure intended to remove fluid from excessive fluid near one of his testicles.

The plaintiff went into surgery for a procedure to extract fluids that had accumulated near one of his testicles. The surgery was performed, but shortly afterwards, the plaintiff began experiencing pain in his scrotum. He later lost the function of his right testicle. The plaintiff filed a lawsuit against the surgeon for medical malpractice. The plaintiff’s complaint alleged that the testicular damage resulted from the defendant’s failure to perform certain standard tasks during the surgical procedure, and these omissions led to an injury to the plaintiff’s right testicle. The trial court ruled in favor of the defendant’s summary judgment motion, and the plaintiff appealed the ruling.

The appeals court considered this case within the context of New York’s well-established medical malpractice laws. In order for the plaintiff to prevail in a medical malpractice action, the plaintiff must prove the physician departed from the standards of care for his or her practice, and there was a causal link between the negligence and the plaintiff’s injuries.

Medical Group Ordered to Release Anesthesiologist Contracts by New York Appeals Court

Published on: September 28, 2017 | By DeFrancisco & Falgiatano

Medical malpractice lawsuits, like all other forms of litigation, are subject to the jurisdiction’s rules of civil procedure. These rules are geared to make the litigation more efficient and predictable between the parties. The discovery process is a crucial pre-trial stage in which the parties gather evidence to prepare their cases. Medical malpractice cases often require the review of voluminous medical records and contracts to show whether a doctor, medical group, or hospital breached its standard of care.The plaintiff filed a New York anesthesia malpractice lawsuit against his anesthesiologist, the anesthesiology group, and Peconic Bay Medical Center. The plaintiff alleged that the defendants failed to ensure the proper anesthesia prophylaxis with regard to an operation performed on him at Peconic Bay Medical Center. His complaint alleged that as a result of the malpractice, he suffered severe injuries and complications. When the alleged malpractice occurred, a nonparty to the lawsuit was the president and sole shareholder of the anesthesia practice and its director of anesthesia services. The plaintiff requested, as part of the lawsuit discovery process, all contracts related to anesthesia services among the defendants to the lawsuit. The plaintiff filed a motion to compel those discovery requests, but the trial court granted a protective order to the defendants. The plaintiff appealed the trial court’s ruling with regard to the discovery request.

New York law provides that defendants must make a full disclosure of any facts material and necessary in the prosecution of a complaint or cause of action. New York courts have interpreted this rule as one that should be interpreted broadly and requires the disclosure, when requested, of any facts that will assist preparation for trial by identifying the issues and reducing unnecessary delay.

Infant Foot Surgery Lawsuit Revived by New York Appeals Court

Published on: September 25, 2017 | By DeFrancisco & Falgiatano

Surgical procedures on infants often come with high risks. New York medical malpractice law requires doctors to disclose medical risks and perform surgeries under a legally imposed standard of care. Unfortunately, a recent lawsuit alleged that an infant child’s podiatrist failed to disclose risks to the patient’s mother related to a foot surgery, and the surgery was performed negligently.In this case, a Brooklyn-based podiatrist performed a surgical procedure on the right foot of the plaintiff, who was an infant at the time of the surgery. The surgery was performed because the podiatrist believed that the plaintiff had a rupture of the extensor hallucis longus tendon. The plaintiff alleged that as a result of the surgery, she has constant pain and limited movement of her right big toe. Moreover, the plaintiff alleged that the surgery was unnecessary, and it actually aggravated the plaintiff’s condition. The plaintiff also brought a cause of action for lack of informed consent.

Under New York law, a claim for podiatry malpractice requires proof of (i) a departure from the accepted standard of practice among podiatric specialists and (ii) sufficient proof that such a departure caused the injury to the plaintiff.

Although the trial court granted summary judgment for the defendants, the appeals court revived the plaintiff’s malpractice claim. The panel of judges agreed that there was an issue of fact as to whether the proper testing had been conducted prior to the operation. The appeals court reiterated that the defendants’ expert affidavit was merely conclusory and therefore did not meet the standard required to win on summary judgment. Specifically, the defendants’ expert affidavit did not address whether they failed to perform pre-operative testing on the plaintiff. The plaintiff’s complaint asserted that the defendants had failed to determine whether she had the circulation required to heal properly from the surgery.

Continuous Treatment Doctrine at Issue in New York Cancer Misdiagnosis Case

Published on: September 21, 2017 | By DeFrancisco & Falgiatano

The statute of limitations for New York medical malpractice lawsuits is currently 30 months. Generally, the time period for filing claims starts to run when the medical error occurred, although this might change if the Governor signs Lavern’s Law. Regardless, New York law recognizes an exception to the general rule. The continuous treatment doctrine extends, or tolls, the statute of limitations when a physician’s treatment has continued uninterrupted and is associated with the patient’s initial illness or condition.A New York appeals court ruled on this issue in Lewis v. Rutkovsky. The plaintiff brought a lawsuit against her primary care physician, alleging that he failed to detect, diagnose, and treat her meningioma. As a result of the alleged malpractice, the plaintiff underwent brain surgery that left her legally blind. The plaintiff first went to see the doctor in 1999 because she was experiencing migraines and blurred vision but did not file a lawsuit until 2010. She argued that this was still proper because her doctor ignored her complaints about her symptoms during the eight-year period of continuous treatment.

The court relied on earlier precedent to guide their decision. In Wilson v. Southampton Urgent Medical Care, P.C., the plaintiff received treatment on 11 separate occasions during a three-year period. The plaintiff’s symptoms included headaches, and she was eventually diagnosed with lung cancer. Deposition testimony revealed that a brain tumor from metastasized lung cancer would cause headaches. The court allowed the claim to proceed because there was an issue of fact as to whether the plaintiff’s continuous treatment for headaches was traceable to the lung cancer.

Hospital Denied Emergency Room Exception to Vicarious Liability Rule

Published on: September 19, 2017 | By DeFrancisco & Falgiatano

One of the crucial threshold questions in a New York hospital negligence claim is who is responsible for the patient’s injuries. The physician who allegedly committed the malpractice would almost certainly be a defendant, but the hospital where the physician works is not always a proper defendant. In a recent case, the court examined the emergency room exception to the rule of vicarious liability as it applied to the alleged negligence of a non-employee, private attending physician.

The plaintiff arrived by ambulance to Peconic Bay Medical Center, where she was seen and evaluated by a doctor in the emergency department. Later, she was examined by the Center’s surgical consultant, a defendant to the lawsuit, who determined that she needed to undergo surgery. The plaintiff decided she wanted the surgery performed by another physician who worked at another hospital. The plaintiff was transferred after several hours to the other hospital, where she underwent numerous surgeries, which resulted in a large portion of her gastrointestinal tract being removed.

Generally, the doctrine of vicarious liability holds an employer responsible for the negligence of its employees. In the medical malpractice context, the hospital that retained the doctor on its staff can be held vicariously liable for the doctor’s medical negligence under an agency theory.

New York Court Allows Anesthesia Error Case to Proceed

Published on: September 12, 2017 | By DeFrancisco & Falgiatano

Anesthesia, when administered with the proper care, allows patients to undergo surgery without feeling pain. Unfortunately, anesthesia errors are common and often lead to debilitating injures or death. A court recently decided a New York anesthesia error case involving the negligent application of morphine, a common form of surgical anesthesia.The plaintiff went in for gallbladder surgery; during surgery, however, he went into cardiopulmonary arrest. This resulted in a brain injury that left him on a ventilator and in a vegetative state. The plaintiff brought a malpractice claim against two doctors and alleged that his anesthesiologist failed to recognize that the plaintiff was not responding appropriately to opiate pain medication. The court’s decision came at the summary judgment phase of the lawsuit. The primary issue before the court was whether the amount of morphine administered to the plaintiff was done in a way that was negligent.

Under New York law, summary judgment is a procedural phase in which the defendant tries to persuade the judge that the plaintiff’s claims should be dismissed because they lack merit. The defendant must present evidence that shows the absence of any triable issue regarding a claim. If the defendant meets this burden of proof, the plaintiff must present evidence to establish the presence of an issue of material fact. New York law provides that a summary judgment ruling in favor of the defendant is not proper in a medical malpractice claim when the parties have produced conflicting opinions by medical experts.

The defendants’ expert testimony stated that the doses of morphine administered to the plaintiff were within the accepted standard of care. Specifically, the dosage administered (9 to 13 mg) was insufficient to cause an overdose to the plaintiff. On the other hand, the plaintiff contended that although 9 to 13 mg of morphine may not have been excessive for a younger patient, it was negligent to administer this amount to the plaintiff, who was at an increased risk of an abnormal reaction because of his age and obesity. Furthermore, the plaintiff’s experts stated that the plaintiff’s pupils were severely dilated during surgery and evidence of the occurrence of an opioid overdose. The court acknowledged that this evidence could show that the plaintiff’s cardiac arrest was narcotics-induced and concluded that the plaintiff presented triable issues of fact concerning his possible opioid overdose as a result of his anesthesiologist’s negligence.