Oncology Malpractice

New York Court Dismisses Lack of Informed Consent Claim

Published on: April 9, 2021 | By DeFrancisco & Falgiatano

While most treatments and procedures are ultimately beneficial to patients, they also carry some degree of risk. As such, doctors must advise patients of the benefits and potential harm that could arise from a proposed plan of treatment, as well as any available alternatives, before providing the suggested care. If a doctor fails to do so and the patient suffers harm as a result, it may constitute grounds for a lack of informed consent claim. Recently, a New York court issued an opinion discussing what a plaintiff must prove to demonstrate liability for the failure to obtain informed consent in an oncology malpractice case. If you suffered losses due to a negligent doctor, it is prudent to speak to a skilled Rochester medical malpractice lawyer as soon as possible.

The Plaintiff’s Claims

It is reported that the plaintiff underwent a total hysterectomy and bilateral salpingo-oophorectomy, which was conducted by the defendant gynecologic oncologist. Following the surgery, the plaintiff filed a medical malpractice lawsuit against the defendant, arguing in part that the surgery was unnecessary, was improperly performed, and that the defendant failed to obtain her informed consent. The defendant moved for summary judgment. The trial court granted the motion, after which the plaintiff appealed.

Establishing Liability for the Failure to Obtain Informed Consent

Under New York law, to establish medical malpractice based on a lack of informed consent, a plaintiff must show that the defendant failed to disclose the reasonable alternatives to a treatment in question and failed to explain the foreseeable risks associated with a treatment, that a reasonable doctor working in the same specialty would have disclosed in a similar situation. The plaintiff must also demonstrate that a reasonable patient in the same situation would not have undergone the treatment in question if he or she had been fully apprised of the risks and alternatives. Finally, the plaintiff must prove that the lack of informed consent proximately caused the harm suffered. Continue Reading ›

New York Court Discusses Standard of Care in Medical Malpractice Claims Alleging Lack of Informed Consent

Published on: February 22, 2020 | By DeFrancisco & Falgiatano

Medical malpractice claims do not only arise out of improperly performed procedures or a delay in diagnosis or treating an illness. Rather, a patient can seek damages from a physician if the patient is harmed by the physician’s failure to obtain the patient’s informed consent prior to providing treatment. In a recent case decided by a court in the Appellate Division of the Supreme Court of New York, the standards for determining whether a practitioner deviated from the standard of care in an informed consent claim were discussed. If you sustained damages due to your doctor’s failure to advise you of the risks of a procedure or treatment, you should confer with a trusted Rochester medical malpractice attorney regarding what redress may be available for your harm.

Facts and Procedural Background of the Case

It is reported that the plaintiff, who was suffering from prostate cancer, sought treatment from the defendant oncologist. The defendant treated and counseled the plaintiff. The plaintiff subsequently suffered debilitating side effects from the treatment that left him permanently disabled. He filed a medical malpractice claim against the defendant oncologist and defendant hospital, alleging that the defendant oncologist deviated from the standard of care in administering the treatment and that the defendant oncologist failed to obtain the plaintiff’s informed consent prior to the treatment. Following a trial, the jury found in favor of the defendants. The plaintiff then filed a motion to have the verdict set aside as against the weight of the evidence.

Proving Deviation from the Standard of Care in Lack of Informed Consent Claims

The main issues on appeal were whether the court erred in precluding portions of the plaintiff’s expert’s testimony at trial and whether the plaintiff’s expert testimony was sufficient to establish that the defendant oncologist deviated from the standard of care. Ultimately, the court found that the evidence supported the jury’s findings in favor of the defendant and denied the plaintiff’s motion. Specifically, the court ruled that the defendant oncologist did not depart from the standard of care or fail to obtain the plaintiff’s informed consent prior to treatment.

New York Court Discusses Duty of Care Owed by Hospitals in Screening for Cancer

Published on: August 13, 2019 | By DeFrancisco & Falgiatano

When people are diagnosed with cancer, they rely on hospitals and oncologists to provide appropriate care and treatment. If an oncologist advises a person that the person’s cancer is in remission, the person will generally take this to mean that they no longer have cancer. Recently, a New York appellate court addressed the issue of whether a hospital can be held liable for advising a patient that he is cancer free following treatment for prostate cancer, when the patient is suffering from colon cancer that has not yet been diagnosed. If you suffered harm due to an oncologist’s failure to appropriately diagnose or treat your cancer, you should speak with a knowledgeable Rochester oncology malpractice attorney regarding your injuries and your potential claims.

Factual Background

Allegedly, in October 2004, the plaintiff’s decedent was diagnosed with prostate cancer at the first defendant hospital. An MRI and bone scan showed that the cancer was not metastatic. He sought a second opinion, and ultimately began treating with the defendant oncologist at the second defendant hospital. In July 2005, the defendant oncologist advised the plaintiff’s decedent that he was biochemically and clinically free of any evidence of the disease. In November 2005, however, the plaintiff’s decedent visited his urologist with complaints of rectal bleeding. He tested positive for blood in his stool and was referred to a gastroenterologist. The plaintiff’s decedent was ultimately diagnosed with metastatic colon cancer. He underwent treatment, including surgery, chemotherapy, and radiation, but lost his battle with cancer in June 2007.

It is reported that before his death, the plaintiff’s decedent filed an oncology malpractice lawsuit against the defendant hospitals and defendant oncologist, which was converted to a wrongful death case following the plaintiff’s decedent’s death. The defendant hospitals filed motions for summary judgment, asking the court to dismiss the claims against them. The court granted the motions, and the plaintiff appealed.

Court Discusses Purpose of Bill of Particulars in New York Oncology Malpractice Case

Published on: May 14, 2019 | By DeFrancisco & Falgiatano

When a patient has a complex disease such as cancer, he or she will typically treat with more than one medical care provider. Thus, in lawsuits arising out of oncology malpractice, several physicians may be named as defendants responsible for the injured party’s harm. Regardless of how many defendants are named in an oncology malpractice case, however, the plaintiff is required to specify the nature of the malpractice committed by each defendant, and the failure to do so can adversely affect the plaintiff’s case. This was illustrated in a recent New York oncology malpractice case, where the court held that the plaintiff’s bills of particulars lacked the specificity required to attribute negligence to each defendant. If you suffered harm or the loss of a loved one due to oncology malpractice it is critical to engage a capable Rochester oncology malpractice attorney with the skills and experience required to help you set forth the evidence needed to prove your claim.

Facts Regarding the Care Provided by the Defendants

It is reported that plaintiff’s decedent was diagnosed with colon cancer and became a patient of the defendant care facility and the defendant oncologist. The decedent was prescribed an intravenous chemotherapy treatment that included several different drugs. Prior to beginning the treatment, the decedent was advised that she could not have the treatment if she had a particular gene mutation, because it would cause a toxic buildup of one of the drugs in the treatment. The decedent did not know whether she had the gene mutation and was not advised there was a test available to test for the mutation.

Allegedly, the decedent began the treatment, after which she began to experience adverse side effects. She was admitted to the defendant hospital where she was treated for thirteen days. The decedent ultimately died due to drug toxicity from her treatment. The plaintiff, the administrator of the decedent’s estate, filed a medical malpractice lawsuit against the defendant hospital, two care facilities, and twelve doctors. The plaintiff subsequently served each defendant with a bill of particulars, after which the defendants moved the court to strike certain portions of the bills of particulars and to preclude the plaintiff from introducing evidence related to the bills, due to the bills’ the lack of specificity. The court granted the orders, after which the plaintiff appealed.
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