Rochester Medical Malpractice and Personal Injury Lawyer Blog
Frequently, a plaintiff harmed by negligent health care will be able to pursue more than one cause of action in a lawsuit against his or her treatment provider. For example, in many instances, a plaintiff will assert both a medical malpractice claim and a lack of informed consent claim. While plaintiffs generally have the right to pursue multiple claims, if they fail to do so in the proper manner, one or more of their claims may be dismissed. This was shown in a recent ob-gyn malpractice case in New York in which the plaintiff’s lack of informed consent claim against a government-owned hospital was barred due to the plaintiff’s failure to provide proper notice. If you or your child suffered injuries due to a doctor’s careless treatment during your pregnancy, it is wise to consult a seasoned Rochester ob-gyn malpractice attorney to discuss your right to pursue damages.
History of the Case
It is reported that the plaintiff underwent treatment at the defendant hospital, which was funded by the federal government, during her pregnancy. She ultimately gave birth to her son at the defendant hospital, via cesarean section, but he tragically passed away later that day. Following an autopsy, the cause of the infant’s death was determined to be respiratory distress syndrome, which was caused by the immaturity of his lungs and hyaline membrane disease. The plaintiff then filed a medical malpractice and wrongful death lawsuit against the defendant and its employees.
Allegedly, the federal government substituted itself as the defendant, due to the fact that the facility was federally supported. The defendant then filed a motion to dismiss, asking the court to dismiss the plaintiff’s claims due to her failure to comply with several aspects of the Federal Tort Claims Act, including the failure to properly inform the defendant she intended to pursue a lack of informed consent claim.
The Federal Tort Claims Act’s Exhaustion and Presentment Requirement
The court granted the defendant’s motion with respect to the lack of informed consent claim. A plaintiff that intends to pursue a claim under the Federal Tort Claims Act (the FTCA) must initially present the claim to the appropriate federal agency and either obtain a denial from that agency in writing or file a lawsuit within sixty days of presenting the claim if the agency fails to respond.
In the subject case, the plaintiff admitted that while she filed the appropriate form stating she intended to pursue a medical malpractice claim, she failed to file a separate form stating that she wished to seek damages pursuant to a lack of informed consent claim. The plaintiff argued, however, that informed consent was an element of a medical malpractice claim. The court declined to adopt the plaintiff’s reasoning, though, finding that the substance of the plaintiff’s claim did not provide the defendant with proper notice of the basis of her claim so as to allow it to assess the claim’s value. As such, her lack of informed consent claim was dismissed.
Meet with a Skillful Rochester Attorney
When a doctor fails to provide an expectant mother with adequate care, it can lead to grave injuries, and in some instances, death. If you or your infant were harmed by an incompetent physician, you might be owed substantial compensation. The assertive Rochester ob-gyn malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers can assess the circumstances surrounding your harm and help you seek the best legal outcome possible. You can contact us through our online form or at 833-200-2000 to schedule a meeting.
