Rochester Medical Malpractice and Personal Injury Lawyer Blog
In many cases in which a person is harmed by primary care malpractice, he or she may be unable to pursue a claim on his or her own behalf. In such instances, a guardian can be appointed to assert the injured party’s right to seek damages. In a recent primary care malpractice case decided by a New York appellate court, the court discussed the specifics of how claims on behalf of an incapacitated person may be pursued. If you or a loved one were injured due to inadequate care rendered by a primary care physician, it is essential to meet with a knowledgeable Rochester primary care malpractice attorney to discuss your injuries and what damages you may be able to recover.
Facts Regarding the Plaintiff’s Harm and Procedural Background
It is reported that the plaintiff patient underwent a colonoscopy in May 2014, after which he collapsed. He has been in a coma since the procedure. The plaintiff wife subsequently filed a medical malpractice action against numerous parties, including the plaintiff patient’s primary care physician. The plaintiff wife sued individually and as the proposed guardian of the plaintiff patient. It is alleged that the defendant primary care physician filed a motion to dismiss, arguing that the plaintiff wife lacked standing to act on behalf of the plaintiff patient. In turn, the plaintiff wife opposed the defendant’s motion and filed an unopposed motion to be appointed as the guardian of the plaintiff patient. The court denied the plaintiff’s motion and granted the defendant’s motion, after which the plaintiff appealed.
Primary Care Malpractice Claims Involving an Incapacitated Person
On appeal, the court stated that an incapacitated person who has not been declared incompetent can file a lawsuit or be sued, similar to any other person. Further, the court noted that under the New York Rules of Civil Procedure, a guardian can be appointed at any stage of litigation. In other words, a guardian need not be appointed prior to the commencement of an action.
Thus, the court rejected the defendant primary care physician’s argument that the plaintiff wife’s failure to be appointed guardian ad litem of her husband prior to filing the lawsuit was sufficient grounds for dismissal of the case. The court explained that while it would have been better for the plaintiff wife to commence the action in the plaintiff patient’s name, the defect was not fatal. As such, the court found that the trial court should have denied the defendant primary care physician’s motion.
Meet with a Skilled Malpractice Attorney to Discuss Your Case
When a person harmed by medical malpractice is unable to pursue a claim independently the injured person’s guardian may pursue a claim on his or her behalf. If you or a loved one suffered injuries because of incompetent care provided by a primary care physician it is critical to retain a skilled Rochester primary care malpractice attorney to fight diligently to protect your rights and to help you seek any compensation you may be owed. The assertive primary care malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will zealously pursue the full extent of damages you may be entitled to under the law. You can contact us through our form online or at 833-200-2000 to schedule a confidential and free conference regarding your case.
