Rochester Medical Malpractice and Personal Injury Lawyer Blog
Cancer is a destructive disease, and when it is not properly diagnosed, it is often fatal. People who lose loved ones because of a doctor’s failure to diagnose or treat cancer have the right to seek damages via a wrongful death claim. In some instances, however, even if there is evidence of negligence, a plaintiff will be denied damages for medical malpractice if the complaint does not contain sufficient factual allegations. This was demonstrated in a recent New York ruling, in which the court dismissed the plaintiff’s medical negligence and wrongful death lawsuit due to a failure to state a claim. If you lost a loved one due to a physician’s incompetent care, it is wise to consult a Rochester medical malpractice attorney regarding your rights.
The Decedent’s Care
It is reported that the decedent, a veteran, visited a veteran’s medical center funded by the defendant in June 2015 for a colonoscopy. It was noted that he was suffering from an anal lesion, but no biopsy was conducted. He had a follow-up appointment a month later due to anal bleeding, and the lesion was once again noted but not biopsied. A month after that, he returned, and the lesion was noted but not biopsied.
It is alleged that a year later, he was diagnosed with anal cancer, and the following year he died due to metastatic colon cancer. The plaintiff, the decedent’s wife, filed a lawsuit against the defendant alleging claims of medical malpractice and wrongful death. In response, the defendant filed a motion to dismiss.
Wrongful Death Pleading Requirements Under New York Law
The court explained that to state a cause of action for wrongful death pursuant to New York law, a plaintiff must plead facts showing a person’s death, neglect or a wrongful act that caused the death, and the survival of beneficiaries who suffered financial losses because of the death and the appointment of a personal representative of the decedent.
In evaluating a motion to dismiss a wrongful death claim, the court may only consider whether the factual allegations set forth in the complaint are adequate to raise the right to relief above a speculative level. In the subject case, the court stated that even if it accepted all of the factual assertions in the complaint as true and drew all reasonable inferences in favor of the plaintiff, the plaintiff’s claims failed. Specifically, there were no allegations in the complaint that, if proven to be true, would allow for the imposition of liability on any of the defendant’s employees. Thus, the defendant’s motion to dismiss was granted.
Meet with an Experienced Malpractice Attorney in Rochester
When doctors fail to conduct the tests necessary to obtain an accurate diagnosis, it can lead to grave harm and, in some cases, death. If you lost a family member because of a physician’s careless failure to diagnose, you may be able to recover compensation and should speak to an attorney. The skilled Rochester medical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers are adept at helping people protect their interests, and we will work tirelessly on your behalf. You can contact us at 833-200-2000 or through the form online to set up a meeting.
