Articles Posted in Orthopedic Malpractice

A patient that suffers unexpected harm during surgery may be able to pursue claims against the doctor that performed the procedure. To prove the physician’s liability, the patient typically must show a deviation from the standard of care, but in cases in which it is obvious that harm was caused by negligence, the patient may not need to show the precise act that caused the injuries suffered. The grounds for determining whether a medical malpractice plaintiff’s evidence that a defendant acted negligently is sufficient to warrant a trial were discussed in a recent New York opinion in which the court denied the defendant orthopedic surgeon’s motion for summary judgment. If you were injured during orthopedic surgery, it is advisable to consult a capable Rochester orthopedic malpractice attorney to determine whether you may be owed damages.

The Plaintiff’s Harm

It is alleged that the defendant orthopedic surgeon performed a surgical revision of the plaintiff’s right knee. At some point during the procedure, the plaintiff suffered an injury to her distal sciatic nerve. As such, she filed a medical malpractice lawsuit against the defendant, alleging he negligently undertook his duties, causing her harm. The defendant filed a motion for summary judgment, which the court denied in part. The defendant then appealed.

Proving Liability in a Medical Malpractice Case

A plaintiff in a medical malpractice case must ultimately prove that the defendant departed from the accepted practice of medicine and that the departure caused the plaintiff to suffer an injury. A plaintiff that cannot pinpoint the precise act that constitutes a deviation from the standard can nonetheless recover damages in certain circumstances. Specifically, a plaintiff that can prove that the injury suffered usually does not occur absent negligence but must have been caused by an instrument within the control of the defendant, and not any negligence of the part of the plaintiff, may be awarded damages.

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Many hospitals and medical facilities hire practitioners who work as independent contractors. While hospitals can be held vicariously liable for harm caused by their employees, a patient seeking to imposed liability on a care provider for injuries sustained during treatment by a non-employee must prove the person was acting as an agent of the provider. In a recent opinion, a New York court discussed the evidence needed to demonstrate ostensible or apparent agency in a case arising out of injuries sustained during treatment with an orthopedic therapist. If you were hurt by a careless therapist, you might be owed compensation, and you should speak to a skillful Rochester orthopedic malpractice attorney to assess your rights.

The Alleged Injury

It is reported that the plaintiff’s daughter was undergoing a therapy session at the defendant medical facility. During the session, she received treatment from the defendant therapist, an independent contractor. At some point, she fell off of a scooter and sustained injuries. The plaintiff then filed a lawsuit alleging medical malpractice claims against the defendants. Among other things, she alleged that the defendant facility should be held vicariously liable for the harm caused by the defendant independent contractor. The defendant facility filed a motion for summary judgment, which was denied. It then appealed.

Demonstrating Ostensible or Apparent Agency

Under New York law, a medical facility may be deemed liable for malpractice committed by its employees but will generally not be deemed liable for harm caused by an independent contractor, even if the facility is affiliated with the independent contractor. A facility may be held accountable for the harm caused by the independent contractor under a theory of apparent or ostensible agency, however.

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In many medical malpractice cases, the plaintiff will assert multiple claims against the defendant. Thus, a defendant that refutes liability must address each claim via an expert affidavit, and the plaintiff must thoroughly demonstrate the flaws in the defendant’s expert’s opinion via a counter expert affidavit. In other words, it is the sufficiency of each party’s expert report that determines what claims, if any, will proceed to trial. The satisfactoriness of expert reports was the topic of a recent New York ruling in a matter in which the plaintiff brought orthopedic malpractice claims against the defendants. If you were hurt by a neglectful orthopedic surgeon, it is wise to consult a Rochester orthopedic malpractice attorney to discuss your rights.

The Plaintiff’s Care and Subsequent Claims

It is alleged that the plaintiff treated with the defendants for issues with his knee. He ultimately underwent reconstructive knee surgery, which was performed by the defendants. Following the surgery, he experienced complications, and he ultimately needed to undergo a below the knee amputation.

Reportedly, the plaintiff filed a malpractice lawsuit against the defendants, alleging medical negligence and failure to obtain informed consent claims. Following discovery, the defendants moved to have both claims dismissed via summary judgment. The court denied the defendants’ motion, after which they appealed.

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When a patient who suffers harm due to incompetent medical care wishes to pursue damages in a civil lawsuit, it is essential that the patient file the lawsuit within the time constraints set forth under the law. Additionally, as demonstrated in a recent New York appellate orthopedic malpractice case, a plaintiff seeking damages for medical malpractice must move his or her case forward at a reasonable pace, otherwise, the case may be dismissed. If you were injured by careless orthopedic care, it is in your best interest to consult a skillful Rochester orthopedic malpractice attorney regarding what measures you can take to protect your interests.

Factual and Procedural Background of the Case

It is alleged that the plaintiff filed a medical malpractice lawsuit against the defendant hospital and defendant orthopedic surgeon, alleging that she suffered harm due to a negligently performed orthopedic surgery. The plaintiff repeatedly refused to submit to a deposition, and in response, the defendants filed motions to compel the plaintiff to appear for her deposition, which the court granted. Ultimately, the defendants filed a motion to dismiss the plaintiff’s complaint if she did not appear for a deposition by set date. The court issued a conditional order of dismissal, stating that if the plaintiff did not appear for her deposition, her case would be dismissed. The plaintiff did not appear, after which she filed a motion to renew the defendants’ motions. The court denied the plaintiff’s motion, and the plaintiff appealed.

Dismissal for Failing to Comply with Discovery Orders in a Medical Malpractice Case

Upon review, the appellate court found that the trial court properly exercised its discretion by issuing a conditional order of dismissal, given the plaintiff’s record of failing to comply with court orders that required her to appear for her deposition. The court was not persuaded by the plaintiff’s argument that the defendants’ motions should be renewed because her behavior was not contumacious or willful, explaining that by issuing a conditional order, the trial court relieved itself of the need to analyze whether the plaintiff willfully resisted submitting to her deposition.

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A plaintiff pursuing medical malpractice claims in New York must prove that the defendant medical provider deviated from the standard of care, causing the plaintiff harm. In most cases, this is established via the opinion of a medical expert. Although it is beneficial to retain an expert that practices in the same specialty as the defendant, it is not required. If an expert practices in a different area of medicine, however, the plaintiff must prove that the expert is nonetheless qualified to opine on the disputed issues. In a recent orthopedic malpractice case, a New York appellate court discussed what constitutes sufficient evidence to demonstrate an expert is qualified.   If you were harmed by negligently rendered orthopedic care, it is prudent to meet with a trusted Rochester orthopedic malpractice attorney to discuss what evidence you must produce to recover compensation.

Facts and Procedural History of the Case

It is reported that the plaintiff underwent a right hip replacement in 2008. Two years later, he underwent a catheterization due to heart blockage and a heart attack. Later that year, due to an infection, he had to undergo a total hip replacement revision surgery. He subsequently filed a medical malpractice lawsuit against the providers that performed his catheterization as well as his orthopedist and family care physician, alleging they were negligent and that their negligence caused him to develop an infection, which required additional surgery. The defendants filed a motion for summary judgment, which the court denied. The defendants appealed.

Qualifications of Medical Experts

A defendant seeking dismissal of a medical malpractice case via summary judgment must show either that there was no departure from the standard of care, or that any departure did not cause the plaintiff’s alleged harm. In the subject case, the trial court found that the defendants set forth prima facie evidence that they were entitled to summary judgment, but that the plaintiff raised a triable issue of fact by way of an expert report in response, which warranted a dismissal of the defendants’ motion. The appellate court disagreed. Specifically, on review, the appellate court found that the plaintiff failed to establish that his expert witness was qualified to offer an opinion on the applicable standard of care that applied to the family physician or orthopedist.

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Medical malpractice cases are fact-intensive and require both parties to offer proof as to whether the facts are sufficient to establish a breach of the applicable standard of care. If the court finds that under the facts of the case the defendant cannot be held liable as a matter of law, it may dismiss the plaintiff’s claims. In a recent orthopedic malpractice case ruled on by the Appellate Division of the Supreme Court of New York, the court explained what constitutes sufficient evidence to obtain a dismissal. If you were harmed due to orthopedic malpractice it is critical to engage an assertive Rochester orthopedic malpractice attorney to assist you in your pursuit of damages.

Factual Background of the Case

It is reported that the plaintiff first treated with the defendant orthopedic surgeon on January 18, 2012, for an ankle injury. The plaintiff returned to the defendant’s office on January 20^th, at which time it was noted he had blisters on his ankle. At the second appointment, the defendant advised the plaintiff he was going on vacation but left the plaintiff his cell phone number so that the plaintiff could contact him if the symptoms worsened.

Allegedly, the plaintiff called the defendant within the next four days, advising he was in pain, had a fever, and had discolored blisters on his ankle. The plaintiff also sent the defendant a text message with a picture of his ankle, that showed the skin was blackening and had pus. On January 24^ththe plaintiff presented to the emergency department of a nearby hospital, where he was admitted to the intensive care unit. He was diagnosed with compartment syndrome and cellulitis and underwent emergency surgery. The plaintiff subsequently filed an orthopedic malpractice case against the defendant. The defendant filed a motion for summary judgment, which the trial court denied. The defendant appealed.

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Plaintiffs seeking damages in New York medical malpractice lawsuits are subject to a high burden of proof, and in many cases, the defendant health care providers are able to successfully argue that the plaintiff has not met his or her burden of proof and obtain a dismissal via summary judgment prior to trial. Regardless of the sufficiency of either party’s case, however, they must comply with the New York rules of civil procedure and the failure to abide by those rules can affect the outcome of the case. This was demonstrated in a recent orthopedic malpractice case in which the court denied the defendants’ motions for summary judgment as untimely. If you suffered an injury or illness because of orthopedic malpractice it is imperative to meet with a skilled Rochester orthopedic malpractice attorney as soon as possible to discuss your case.

Facts of the Case and Procedural Background

It is alleged that the plaintiff underwent arthroscopic surgery on her left knee, which was performed by the defendant orthopedic surgeon. She developed an infection and eight days after her surgery and presented to the emergency room of the defendant hospital. She underwent irrigation and debridement and was referred to an infectious disease specialist, who managed the infection with antibiotics and observation. The plaintiff subsequently developed acute renal failure due to the antibiotic she was prescribed.

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant orthopedist and defendant hospital, arguing that their negligent care ultimately caused her to sustain renal failure. Per the rules of the judge assigned to the case, the deadline for either party to file a motion for summary judgment was February 14, 2017. The defendants did not file a motion for summary judgment until March 29, 2017, however, at which time they also filed a motion to extend the deadline for filing the motion. The court dismissed both motions as untimely and the defendants appealed.

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There are several elements a person harmed by medical malpractice must prove to recover damages from the care provider that caused his or her harm. First, and perhaps most importantly, the injured party must show that he or she was a patient of the doctor that rendered the inadequate care. While in most cases it is easy to establish a doctor-patient relationship, in some cases, it is not immediately clear whether a doctor-patient relationship exists. The Supreme Court of New York recently analyzed whether a plaintiff sufficiently established a doctor-patient relationship in a case where the defendant doctor owned the orthopedic practice where the plaintiff was treated but did not provide direct care to the plaintiff. If you or a loved one suffered harm due to inadequate orthopedic care you should meet with a trusted Rochester orthopedic malpractice attorney regarding what damages, you may be able to recover from the parties that caused your harm.

Facts Regarding the Plaintiff’s Treatment

It is alleged that the minor plaintiff fell off of his bicycle and broke his left arm in June 2015. The plaintiff’s mother took him to the emergency room of a nearby hospital following his fall. The hospital staff did not place a cast on the plaintiff’s arm but provided him with a sling and directed his mother to take him to an orthopedic specialist as soon as possible. On July 1, 2015, the plaintiff’s mother took the plaintiff to the defendant orthopedic practice which was owned by the defendant doctor.