Articles Posted in Surgical Error

While some people are reluctant to retain legal counsel prior to filing a medical malpractice lawsuit due to fears regarding costs, the decision to proceed pro se can have drastic consequences, as the plaintiff’s lack of understanding of the law may result in a permanent waiver of the right to recover damages. This was demonstrated in a recent surgical malpractice case in which the court dismissed the plaintiff’s claims due to her failure to make timely objections or to meet her burden of proof. If you were hurt due to the negligent acts of a surgeon, it is in your best interest to retain a capable Rochester surgical malpractice attorney to assist you in your pursuit of damages.

The Plaintiff’s Treatment and History of the Case

It is alleged that in August 2013, the plaintiff underwent two surgical repairs of aneurysms in her right leg, which were performed by the defendant. She continued to treat with the defendant after the surgeries, during which she reported pain in her leg. She then began treating with another physician and, in February 2014, underwent an angioplasty but nonetheless still experienced leg pain. She then filed a lawsuit against the defendant, alleging claims of medical malpractice and lack of informed consent. Following the close of discovery, the defendant moved for summary judgment, asking the court to dismiss the plaintiff’s claims. The court entered an order granting the judgment, and the plaintiff appealed.

Demonstrating Liability for Surgical Malpractice

The appellate court explained the well-established law of New York, which is that a plaintiff in a medical malpractice case must prove that the defendant departed from the accepted community standards of the practice of medicine and that the departure caused the plaintiff to suffer harm. As such, a defendant moving for summary judgment must show that either there was no departure from the standard of care or that any departure did not harm the plaintiff, in order to show the plaintiff’s claims should be dismissed. If a defendant makes such a showing, the burden shifts back to the plaintiff to demonstrate the presence of a factual dispute that requires the matter to proceed to trial.

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In medical malpractice cases in New York, the plaintiff is required to set forth a bill of particulars that explains in detail the manner in which the defendant care provider caused the plaintiff’s harm.  In turn, the defendant bears the burden of refuting each claim set forth in the bill of particulars. If the defendant can successfully prove that he or she is not negligent, the case may be dismissed in its entirety. If the defendant fails to address all of the plaintiff’s allegations, however, the plaintiff will be permitted to proceed with his or her claims, as demonstrated in a recent surgical malpractice case ruled on by a New York appellate court. If you suffered injuries due to an improperly performed surgery, it is advisable to speak with a dependable Rochester surgical malpractice attorney to discuss what you must prove to recover damages.

The Plaintiff’s Care and the Pleadings in the Case

It is reported that the plaintiff underwent surgery at the defendant hospital. Several months later, she was diagnosed with a ventral hernia, which was later revealed to be an incisional hernia. The plaintiff ultimately filed a surgical malpractice lawsuit against the defendant, alleging, in part, that the surgery increased her risk of sustaining an incisional hernia, and that the defendant was negligent due to its failure to diagnose and treat the hernia in a timely manner. After discovery was completed, the defendant filed a motion for summary judgment. The trial court denied the motion, and the defendant appealed.

A Defendant’s Burden of Proof in Seeking a Dismissal of a Surgical Malpractice Case

Under New York law, to succeed on a medical malpractice claim, a plaintiff must establish that the defendant deviated from the applicable standard of care, and the deviation proximately caused the plaintiff harm. In turn, to succeed on a motion for summary judgment in a medical malpractice case, a defendant must establish that either there was no deviation, or the deviation did not cause the plaintiff’s alleged harm. If the defendant does not meet this burden, however, summary judgment will not be granted.

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In surgical malpractice cases, evidence regarding what actions the defendant surgeon took before, during, and after the surgery is often offered by the plaintiff to prove liability or by the defendant in support of the argument that there was no deviation from the standard of care. Typically, the defendant’s acts are established via records or either party’s recollection of events. Recently, a New York appellate court analyzed whether a defendant surgeon can testify regarding what he or she did during a procedure based on his or her habit rather than actual knowledge. If you were harmed by a surgical procedure, it is advisable to speak with a diligent Rochester surgical malpractice attorney regarding what damages you may be owed.

Factual Background of the Case

It is alleged that the plaintiff consulted the defendant for treatment of an incisional hernia. The defendant attempted a surgical repair of the hernia, during which he sutured a mesh patch to the plaintiff’s abdominal wall. The patch had two sides, one of which was rough and intended to be placed against the abdominal wall, and the other of which was smooth and meant to protect the internal organs.

Reportedly, following the surgery, the plaintiff developed severe pain. It was later determined that the patch had been inserted backward, and the rough side had adhered to the plaintiff’s internal organs. The plaintiff sued the defendant, arguing that he deviated from the accepted standard of care by improperly suturing the patch to her abdominal wall. Prior to trial, the plaintiff filed a motion to prohibit the defendant from testifying at trial regarding his custom and practice in performing hernia repairs. The court granted the motion, but the plaintiff was permitted to testify regarding his usual practices regardless. The jury found in favor of the defendant, and the plaintiff appealed.

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In a New York surgical malpractice case, the defendant surgeon can avoid liability if he or she can prove that he or she did not depart from the standard of care, or that any departure did not cause the alleged harm. The defendant surgeon must provide clear and sufficient evidence in support of his or her defense, however, otherwise the injured party will be permitted to pursue his or her claim against the defendant surgeon. In  a recent New York appellate case, the court explained what constitutes sufficient evidence to deny a defendant surgeon’s motion to dismiss a plaintiff’s claim. If you sustained harm because of a surgeon’s negligence you should meet with a zealous Rochester surgical malpractice attorney to discuss your harm and what damages you may be able to recover.

Facts Regarding the Plaintiff’s Treatment

Allegedly, in 2015 the plaintiff visited the defendant surgeon, to undergo an elective cosmetic procedure that involved transferring fat to areas of the plaintiff’s face. One of the known risks of the procedure was blindness, caused by fat entering a blood vessel and migrating to the eyes. When the plaintiff awoke from her anesthesia following the procedure, she experienced pain in her left eye and diminished vision. She was transported to an ophthalmologist, who noted there was fat in the vessels of her retina. The following day, the plaintiff visited a neuro-ophthalmologist, who diagnosed her with a loss of vision due to a central retinal artery occlusion secondary to a fat embolism.

It is reported that the plaintiff then filed a medical malpractice lawsuit against the defendant, alleging that his negligence in performing the procedure caused her to suffer the permanent loss of vision in her left eye. Specifically, the plaintiff alleged that the defendant failed to properly aspirate during the fat administration. The defendant filed a motion for summary judgment, arguing he was prima facie entitled to judgment in his favor as a matter of law. The court denied the defendant’s motion, and he appealed.

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The basis of any Rochester surgical malpractice claim is the assertion that a physician caused harm by deviating from the standard of care. Therefore, as the ordinary layperson does not have any knowledge regarding what level of care is required to comply with the standard, both parties in a medical malpractice case must submit expert opinions in support of their position. In a recent Rochester surgical malpractice case, the court analyzed what constitutes a sufficient medical expert opinion for the purposes of defeating a motion for summary judgment. If you were harmed by surgical malpractice you should consult a trusted Rochester surgical malpractice attorney regarding your alleged harm and what evidence you must produce to obtain a successful outcome.

Factual Background

It is reported that the plaintiff underwent a transurethral resection of a tumor. She allegedly suffered injuries during the surgery and filed a lawsuit against the defendant physician that performed the surgery, and the defendant hospital where the surgery was performed. The defendants filed a motion for summary judgment, which the court granted, dismissing the case. The plaintiff appealed.

What Constitutes a Sufficient Medical Expert Opinion

On appeal, the issue presented was whether the plaintiff raised a triable issue of material fact. The court noted that the defendants submitted an affidavit of a medical expert that addressed the negligence claims asserted by the plaintiff. As such, the defendants met their initial burden of establishing that they did not deviate from the appropriate standard of care, or that any deviation did not cause the harm the plaintiff allegedly suffered.

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While many plastic surgery procedures seem routine, the reality is these are serious surgeries that carry a substantial risk of complication if the plastic surgeon fails to use the utmost care. A mistake during a plastic surgery procedure can result in a permanent deformity or even death. If you or your loved one has suffered preventable injury because of plastic surgeon’s negligence, let our seasoned Rochester medical malpractice attorneys help. At DeFrancisco & Falgiatano Personal Injury Lawyers, we know how to handle medical negligence cases.

An Omaha plastic surgeon is being sued for malpractice after patients allege the surgeon left their bodies deformed. There are currently 35 claims against the doctor, as well as the surgery center where the procedures took place. Specifically, the complaint claims that patients suffered physical and emotional harm such as disfigurement, painful scarring and nerve damage. In one specific case, a patient claimed she had a tummy tuck that went wrong, which left her with painful jagged scars across the abdomen.

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If you’ve been injured due to surgical mistakes made immediately before, during or after a gallbladder surgery, you should seek the advice and guidance of a trusted Rochester medical malpractice attorney. These cases are complicated, but with years of experience on our side we will work diligently to uncover the cause of your harm. We know that dealing with a health problem and thinking about a legal claim can be incredibly draining, which is why we will try to resolve you legal matter in the most effective and efficient way possible.

What is the Gallbladder?

The gallbladder is a little hollow organ located under your liver in the upper-right side of the abdomen. The gallbladder houses bile and a mixture of fluids, fats and cholesterol. Bile assists in the breaking down of fat from food in your intestine. In other words, the gallbladder is responsible for storing extra bile produced by the liver, which is used for the breakdown of fats in the digestive process. 

Gallbladder Surgery Malpractice

Gallbladder removal is one of the most frequent medical procedures in the United States. This is because gallbladder disease impacts 12 percent of adults and every year more than 700,000 Americans have their gallbladders removed. Many people choose to have their gallbladders removed after they develop gallstones, which cause ongoing painful symptoms. The American College of Surgeons reports that one out of every 1,000 patients die during gallbladder removal.

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Every surgery carries some level of inherent risks but there are some things that should never happen while you are being operated on. If you have suffered an unnecessary injury due to a surgeon’s negligence, you need to reach out to a seasoned Rochester medical malpractice attorney who can help. At DeFrancisco & Falgiatano Personal Injury Lawyers, we are committed to getting our clients the justice and compensation they deserve in their case.

In a recent North Carolina case, a patient sued Duke Health System over a 2012 incident in which the patient, a 75 year old woman, allegedly fell off an operating table during a heart catheterization and suffered a concussion, jaw injuries and bruises.

North Carolina law mandates that plaintiffs in medical malpractice cases “certify” that they have someone who can serve as an expert witness in their case. The expert witness is typically a medical professional in the same specialty of medicine as the defendant and, as such, can testify regarding the appropriate standard of care in the case. The plaintiff’s case was lacking the necessary “certification.”

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