Medical Malpractice

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.

New York Legislature Passes Lavern’s Law, Affecting Cancer Misdiagnosis Statute of Limitations

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

A statute of limitations is a law that limits the time period within which you may sue a person or company. The New York medical malpractice statute imposes a 30-month time limit from the date of the malpractice or from the end of continuous treatment. However, the New York legislature recently passed Lavern’s Law to, among other things, give people who receive a cancer misdiagnosis a more reasonable time period to assert a malpractice claim.

The New York legislature first considered revising the medical malpractice statute after the death of a New York woman, whose cancer was misdiagnosed on two separate occasions. The woman visited Kings County Hospital with chest pain and received an X-ray. She was sent home after a first-year resident told her it looked fine. Later, she began having difficulty breathing. Again, this was misdiagnosed with asthma symptoms. Finally, two years after the initial visit, doctors reexamined her old X-ray and noticed a small mass. By this time, the mass had developed into lung cancer and spread throughout her body. She died approximately a year later.

The woman’s lawsuit for medical malpractice was unsuccessful because the statute of limitations had expired by the time she filed suit. New York is currently one of only six states that starts the statute of limitations when the medical mistake is made, not the moment the mistake is discovered. Lavern’s Law would change this feature of the current law so that the timing for cancer misdiagnoses would begin at the moment of discovery.