Medical Malpractice

Medical Malpractice due to Misdiagnosis in New York

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

Unfortunately, misdiagnosis is a more common problem than you may realize. Every year, approximately 12 million adults, which is five percent of adults who seek outpatient medical care, are misdiagnosed, according to the National Academy of Medicine. If you have been injured as a result of a misdiagnosis, you may be entitled to compensation for your harm. At DeFrancisco & Falgiatano Personal Injury Lawyers, our Rochester misdiagnosis attorneys can examine the facts of your case and help you understand your legal rights and options. We are committed to holding negligent medical professionals accountable for the harm that they cause.Many malpractice lawsuits stem from a misdiagnosis or delayed diagnosis of a medical condition, disease, or injury. Misdiagnosis can take many forms, but it typically involves diagnosing a disease that a patient does not have or failing to diagnose a disease that the patient has. Delayed diagnosis occurs when the doctor does not diagnose the patient in a timely manner. An overlooked diagnosis, also sometimes known as a failure to diagnose, refers to a condition that is entirely missed. When a medical professional makes a mistake regarding a diagnosis that leads to the wrong treatment, delayed treatment, or even no treatment at all, a patient’s condition can significantly worsen.

Proving malpractice due to misdiagnosis requires the same conditions to be met as with any other New York malpractice case. First, a doctor-patient relationship must have existed at the time of the incident, which would show the existence of a duty owed to the patient by the doctor. Second, the doctor must have breached the duty owed to the patient. This means the doctor’s conduct deviated from the generally accepted standard of care. The standard of care refers to the level of care that a reasonably prudent doctor would have used in the same or similar circumstances. Lastly, the plaintiff must show that the doctor’s breach was a direct and proximate cause of the plaintiff’s injury. This means that not every case of misdiagnosis is malpractice. Instead, the patient has to suffer an injury in order to have a viable malpractice claim.

If medical malpractice is established, the plaintiff can recover a variety of economic and non-economic damages, including medical expenses, rehabilitation costs, lost wages, pain and suffering, and any other losses arising from the malpractice. Each case is different, and the amount of compensation a plaintiff will be entitled to obtain will depend on the specific facts of the case.

Statute of Limitations in New York Medical Malpractice Cases

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

Medical mistakes can lead to serious and long-term injuries for patients. If you or a loved one has been hurt due to a medical error, you should contact a skilled Rochester medical malpractice attorney as soon as possible. At DeFrancisco & Falgiatano Personal Injury Lawyers, we can thoroughly examine the facts of your case and determine whether you may be eligible for compensation. While no amount of money can undo the pain and stress of a medical injury, the money can help cover the bills that often pile up after such an incident. Time is of the essence in these cases, so it is important to act quickly.

Injured patients can hold negligent or reckless medical providers accountable through a medical malpractice claim. Each state has a specific deadline for filing medical malpractice claims, known as the statute of limitations, and New York is no exception. Failing to file your lawsuit in civil court within the appropriate time frame could mean losing your right to compensation altogether. In other words, if you do not file your medical malpractice case within the statute of limitations, you will be barred from filing a claim and pursuing damages.

Patients injured by medical malpractice in New York have two years and six months after the alleged malpractice to file a lawsuit in civil court. This is the general statute of limitations in New York, although there may be limited exceptions that apply in your case.

The Basic Elements of a Rochester Medical Malpractice Claim

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

When you go see a doctor or another medical professional, you expect competent care. When medical professionals are careless or make a mistake, the consequences can be devastating for the patient. If you or someone close to you has been harmed by medical malpractice, it is important to reach out to a Rochester medical malpractice attorney who can assess the merits of your case. At DeFrancisco & Falgiatano Personal Injury Lawyers, we are committed to helping our clients pursue the compensation they deserve for their harm.

Unfortunately, medical malpractice is common in New York and throughout the United States. The Journal of the American Medical Association (JAMA) reports that medical mistakes are the third-leading cause of deaths in the United States, behind heart disease and cancer. Moreover, JAMA found that medical mistakes cause 250,000 deaths annually across the country.

Medical malpractice is a broad term that may encompass a wide range of actions or omissions by a medical provider. In other words, medical malpractice occurs through any act or omission by a medical professional during the treatment of a patient that deviates from the accepted norms of practice in the medical community and causes an injury to the patient. In order to establish medical malpractice, the injured patient must prove the following elements:

Metadata from Emergency Medical Records Provides Attorneys with Crucial Information in New York Medical Malpractice Cases

Published on: November 8, 2017 | By DeFrancisco & Falgiatano

Metadata from emergency medical records (EMRs) can show when a chart entry was made, modifications to a chart entry, how long a chart was reviewed, and when it was accessed. This type of information can help determine the timing and substance of a plaintiff’s care. In other words, the information can help provide the evidence needed to show medical negligence. However, when plaintiffs conduct discovery requests, hospitals are not always forthcoming with EMRs and their accompanying metadata. In Gilbert v. Highland Hospital, the plaintiff moved to compel discovery of the EMR metadata to determine which physicians were involved in the plaintiff’s care, among other reasons. The court granted the plaintiff’s motion to compel discovery because the metadata was relevant to the medical malpractice claims and did not constitute a fishing expedition, a term used to describe overly broad discovery requests.

Another important New York medical malpractice decision regarding EMR metadata was Vargas v. Lee, although the court found that the plaintiff did not make the necessary showing to compel production of metadata. The case set a standard for plaintiffs seeking the production of such materials. The plaintiff in Vargas requested information related to the timing and substance of the plaintiff’s care in a specific three-week time frame. The plaintiff requested the EMR metadata for evidentiary reasons. The defendants objected to the disclosure because they alleged that the request was not relevant, overly burdensome, and administratively impossible. Interestingly, the court reasoned that metadata is discoverable when there are allegations of record alterations or manipulations or a “cover up” with regard to improper or negligent health care. Specifically, the court stated that metadata is relevant when the process of creation for a document is at issue or there are document authenticity concerns. The court ruled that the plaintiff could receive all of the information they needed from the patient treatment details from the already produced EMR.

EMR metadata may need to be requested separate and apart from the EMRs themselves. It could be extremely important in medical malpractice actions to receive this sort of information to determine the quality of care provided. In addition, this information is required to be kept by New York hospitals under Title 10 of the New York Codes, Rules and Regulations. Therefore, the metadata, assuming the hospital is following applicable law, should be available for production; it is a matter of requesting the information during pre-trial discovery. Commentators have noted that plaintiffs’ attorneys in medical malpractice actions should request metadata from EMRs, assuming it is useful in their case.

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.