Rochester Medical Malpractice and Personal Injury Lawyer Blog

Court Discusses Establishing Lack of Informed Consent Under New York Law

Published on: December 6, 2021 | By DeFrancisco & Falgiatano

Prior to offering their patients treatment, such as surgical procedures, doctors are required to explain the potential side effects of the course of care and explain alternative treatments. If they do not, and the patient subsequently suffers from complications or issues, the plaintiff may be able to assert medical malpractice claims against the physician, alleging that they failed to obtain their informed consent. Recently, a New York court explained liability for the failure to obtain a patient’s informed consent, in a matter in which it ultimately determined there was sufficient evidence to proceed to trial. If you suffered harm due to your treatment provider’s failure to obtain your informed consent, you might be owed compensation, and you should speak to a Rochester medical malpractice lawyer as soon as possible.

The Plaintiff’s Claims

It is reported that the plaintiff treated with the defendant doctor at the defendant hospital for back issues that arose following a car accident. The defendant doctor initially offered the plaintiff conservative treatment but later recommended that he undergo a laminectomy with possible fusion at the lumbar level of his spine. The plaintiff accepted the defendant doctor’s recommendation and scheduled the surgery.

Allegedly, on the day of the surgery, the defendant doctor advised the plaintiff he had changed his mind regarding the laminectomy and recommended that the plaintiff undergo the implantation of certain devices in his back. The plaintiff agreed after a brief discussion and underwent the procedure. He continued to experience pain and symptoms and sought care from another doctor. The second doctor stated his condition did not warrant the intervention he received and subsequently surgically removed the devices. The plaintiff then filed a lawsuit against the defendants alleging, among other things, that the defendant doctor committed malpractice by failing to obtain his informed consent. The defendants moved for summary judgment, and the court granted the motion, after which the plaintiff appealed. Continue Reading ›

New York Court Discusses Evidence Admissible in Medical Malpractice Matters

Published on: November 28, 2021 | By DeFrancisco & Falgiatano

Breast cancer is a devastating illness that kills thousands of women each year. The majority of people who develop breast cancer do not have a familial history of the disease. Some patients, though, carry a gene mutation that creates a significantly high risk of not only developing breast cancer but also ovarian cancer. As such, doctors will often recommend that a patient who was diagnosed with breast cancer undergo genetic testing. As evidenced in a recent New York ruling, the failure to recommend such testing may constitute medical malpractice. If you sustained damages due to a doctor’s mismanagement of your breast cancer, it is smart to contact a Rochester medical malpractice lawyer to discuss your options for seeking compensation.

The Facts of the Case

It is reported that the decedent was diagnosed with breast cancer in August 2002, after which she sought treatment from the defendant oncologist. The decedent was subsequently diagnosed with ovarian cancer in July 2007 and passed away in September 2007. It is alleged that the decedent’s only sibling underwent genetic testing in January 2008 and was found to have a gene mutation that significantly increased her risk of ovarian cancer.

Allegedly, the plaintiff then filed a medical malpractice lawsuit against the defendant, arguing that he violated good medical practice by neglecting to appropriately advise the decedent to obtain genetic counseling, which may have revealed that she inherited the gene mutation. Continue Reading ›

New York Court Discusses Appropriate Treatment in a Medical Malpractice Case Involving Amputation

Published on: November 20, 2021 | By DeFrancisco & Falgiatano

Typically, disorders involving the feet are not life-threatening and do not require emergent care. Foot conditions can cause pain and difficulty walking, however, and in some instances necessitate surgical treatment. Podiatrists, like all other healthcare providers, must comply with the applicable standard of care, and if they deviate from the standard and their patients subsequently suffer harm, it may constitute grounds for pursuing medical malpractice claims against them. Recently, a New York court discussed what constitutes appropriate treatment for bunions, in a matter in which the plaintiff asserted medical malpractice claims against the defendant after he amputated her second toes. If you suffered harm due to the negligence of your podiatrist, you may be able to recover damages, and it is in your best interest to speak to a Rochester medical malpractice lawyer as soon as possible.

The Plaintiff’s Treatment

It is alleged that the plaintiff went to the defendant podiatrist for treatment of bunions and crossover abnormalities involving the great and second toes on both feet, which caused her discomfort and prevented her from wearing most shoes. Defendant offered numerous treatment options, including forefoot reconstruction surgery, amputation of the second toes, and bunion shaving. The plaintiff chose amputation and bunion shaving in part because the defendant represented it required significantly less recuperation time than reconstructive surgery.

Reportedly, the plaintiff underwent the procedure without complication but continued to experience discomfort. She then sought care from two other podiatrists, who advise her that amputation was not an appropriate treatment for his issues, and caused her to experience difficulty walking, She then filed a malpractice lawsuit against the defendant. The defendant moved for summary judgment but the court denied his motion. He appealed. Continue Reading ›

New York Court Discusses Sanctions for Failing to Comply with Discovery Orders in a Medical Malpractice Case

Published on: November 10, 2021 | By DeFrancisco & Falgiatano

Medical malpractice cases are typically fact intensive, and plaintiffs usually must offer evidence in the form of treatment records and expert testimony to prove their allegations. Typically, medical records and other information regarding a plaintiff’s care are obtained via discovery. As such, if a defendant refuses to comply with a plaintiff’s discovery requests or otherwise engage in the discovery process, it can be detrimental to the plaintiff’s claims. In such instances, plaintiffs can petition the courts to impose sanctions on the defendants, such as barring them from offering certain defenses or evidence. The grounds for sanctioning a defendant for failing to respond to discovery requests was the topic of an opinion recently issued by a court in a New York medical malpractice case. If you suffered losses due to the carelessness of your treatment provider, you may be owed compensation, and you should confer with a Rochester medical malpractice lawyer regarding your potential claims.

The Factual and Procedural History of the Case

It is reported that the plaintiff commenced a lawsuit against the defendant health care provider in 2009. The plaintiff’s complaint sought damages for personal injuries, medical malpractice, and other claims. In June 2018, the plaintiff filed a motion asking, among other things, that the court strike the defendant’s answer to the complaint, and bar the defendant from providing any evidence at trial. The basis of the plaintiff’s request was the fact that the defendant failed to comply with prior discovery orders. The court ultimately denied the motion and the plaintiff appealed.

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

Although the Supreme Court has broad discretion in determining the nature and severity of a sanction imposed under New York law, the drastic remedy of striking a pleading or even precluding evidence should not be imposed unless the failure to comply with discovery demands or orders is clearly willful. In the subject case, the appellate court agreed with the trial court’s determination that the plaintiff failed to show that the defendant’s failure to comply with the subject orders arose out of willful intent. Continue Reading ›

Court Explains the Shifting Burdens of Proof in New York Medical Malpractice Cases

Published on: November 6, 2021 | By DeFrancisco & Falgiatano

Doctors accused of committing medical malpractice rarely admit their liability. Rather, in many malpractice cases, the defendant will argue that there is no evidence that they are at fault for the plaintiff’s alleged harm, and therefore, the case should be dismissed via summary judgment prior to trial. Recently, a New York court discussed the burden of proof imposed on each party in a medical malpractice case with regard to summary judgment, in a matter in which it ultimately denied the defendant’s motion. If you were hurt by the carelessness of a health care provider, you might be able to cover compensation for your harm, and it is in your best interest to speak to a Rochester medical malpractice lawyer about your rights.

The Facts of the Case

It is reported that the plaintiff underwent a surgical procedure on her right leg at the defendant hospital on August 7, 2014. She returned four days later with complaints of leg pain and ultimately underwent an above the knee amputation of her right leg. She proceeded to file a medical malpractice lawsuit against the defendant, alleging that it committed numerous errors that resulted in the loss of her leg. Following discovery, the defendant moved to have the plaintiff’s claims dismissed via summary judgment. The court denied the motion, and the defendants appealed.

The Shifting Burdens of Proof in Medical Malpractice Cases

To establish a physician’s culpability for medical malpractice, a plaintiff must show that the physician deviated or diverged from established community standards of practice and that this deviation was a direct cause of the plaintiff’s injuries. Thus, a defendant moving for dismissal via summary judgment in a medical malpractice case defendant must prove, prima facie, that it did not depart from the standard or that any departure did not proximately cause the plaintiff’s harm. Once a defendant establishes this prima facie showing, the plaintiff bears the burden of proving the existence of a triable issue of fact, but only as to the factors on which the defendant has met its burden. Continue Reading ›

Court Highlights the Importance of Expert Reports in New York Medical Malpractice Cases

Published on: November 3, 2021 | By DeFrancisco & Falgiatano

Expert testimony is a key component of New York medical malpractice cases. In other words, while a compelling expert report may provide a plaintiff with protection from the dismissal of their claims via summary judgment, a report that is speculative or that is not based on reliable methodology may be inadequate to demonstrate that a factual dispute demands that a case proceeds to trial. This was illustrated recently when a New York court affirmed the dismissal of a plaintiff’s medical malpractice claims, largely due to the weakness of her expert report. If you suffered harm due to negligent medical care, you might be owed damages, and you should meet with a Rochester medical malpractice lawyer to discuss your potential claims.

History of the Case

Allegedly, the plaintiff contracted Guillain-Barre syndrome. While the facts regarding her care are sparse, she ultimately filed a medical lawsuit against the defendant hospital, alleging that it failed to diagnose her with the condition or treat it in a timely manner, which ultimately decreased her chance of a favorable outcome. The defendant moved for dismissal via summary judgment. The court granted the defendant’s motion, and the plaintiff appealed.

Expert Reports in New York Medical Malpractice Cases

On appeal, the appellate court affirmed the trial court ruling. The court explained that, in New York medical malpractice cases, the defendant bears the initial burden of proving that it did not deviate from the accepted practice of medicine or that any alleged deviation did not cause the plaintiff’s harm. The burden then shifts to the plaintiff, who must refute the defendant’s assertions in order to survive summary judgment. Continue Reading ›

New York Court Discusses Compulsory Arbitration in Medical Malpractice Cases

Published on: October 28, 2021 | By DeFrancisco & Falgiatano

Often, when people go to the hospital for an acute issue, they are asked to fill out certain documents and forms prior to being admitted or treated. Many people sign such materials in haste, without thoroughly reading their terms. Such decisions can be costly, however, as hospital admission documents often contain provisions impacting patient rights in the event of a dispute or harm arising out of incompetent care. This was demonstrated recently in a ruling issued by a New York court in a hospital malpractice case, in which the court affirmed an order compelling the plaintiff to arbitrate a dispute with a hospital. If you were injured due to negligent care you received in a hospital, it is smart to speak to a Rochester hospital malpractice lawyer regarding your rights.

Facts of the Case

It is alleged that the plaintiff visited the defendant hospital for an unspecified concern and was admitted for treatment. Prior to her admission, she completed and signed numerous documents, including a document referred to as an admission agreement in capital letters and a document referred to as an arbitration agreement. She subsequently experienced complications due to her treatment and filed a lawsuit against the defendant, asserting numerous claims, including medical malpractice. The defendant moved to compel arbitration.

Compulsory Arbitration in Medical Malpractice Cases

The court granted the motion. The court was not persuaded by the plaintiff’s conflicting arguments that she did not sign the arbitration agreement or that she believed it to be the admission agreement. The court explained that the two agreements were signed at different times, and their headings were clear, removing any chance of confusion. Additionally, a forensic expert examined the arbitration agreement and determined that it did, in fact, contain her signature. Continue Reading ›

New York Court Discusses Venue in Medical Malpractice Cases

Published on: October 22, 2021 | By DeFrancisco & Falgiatano

Generally, the plaintiff in a medical malpractice case has the right to decide where to file the complaint. Defendants have the right to move for a change of venue, though, for various reasons. For example, they may be able to argue that the case should be tried in the venue in which their primary office is located. Recently, a New York court discussed venue in podiatrist malpractice cases, in a matter in which the parties disputed where the case should be heard. If you suffered harm due to incompetent treatment from a podiatrist, you might be owed damages, and you should consult a Rochester podiatry malpractice lawyer as soon as possible.

The Facts of the Case

It is reported that the plaintiff sought podiatric treatment from the defendant’s ambulatory treatment center. She underwent a procedure performed by the defendant doctor. She subsequently suffered unspecified harm, which she attributed to the fact that the treatment was not rendered properly. As such, she filed a medical malpractice lawsuit against the defendant. The plaintiff resides in Westchester County, and she is treated in Westchester County.

It is alleged, however, that the plaintiff designated Bronx County as the venue of the case on the grounds that the defendant doctor, who also resides in Westchester County, had a principal office in Bronx County. The defendant moved for a change of venue, arguing his principal office was in Westchester County. The trial court granted the motion, and the plaintiff appealed. The trial court ruling was reversed on appeal, and the defendant filed a subsequent appeal. Continue Reading ›

New York Court Explains Grounds for Setting Aside a Jury Verdict

Published on: October 12, 2021 | By DeFrancisco & Falgiatano

Most medical malpractice cases resolve before they reach the trial stage. If they do proceed to trial, however, the parties will typically ask a jury to assess liability and damages. In theory, juries should assess the evidence presented at trial and make a determination based on that evidence, but they do not always rule properly. Fortunately, parties who believe a jury issued a verdict that goes against the weight of the evidence have options for seeking justice. Recently, a New York court explained when setting aside a verdict is appropriate in a medical malpractice case in which the plaintiff argued the jury ruled improperly. If you sustained damages because of negligent medical care, it is smart to speak to a Rochester medical malpractice lawyer to determine what proof you must offer to recover damages.

The History of the Case

It is alleged that the decedent visited the defendant’s doctor with complaints of a cough and chest pain. The defendant prescribed a chest x-ray, which was normal, and advised the decedent he did not appear to be suffering from a chronic or acute condition. A different doctor subsequently diagnosed the decedent with lung cancer. The decedent ultimately succumbed to the illness. The plaintiff, the administrator of the decedent’s estate, filed a medical malpractice lawsuit against the defendant, alleging he violated the standard of care by failing to order a CT scan. The case proceeded to trial, and the jury found in favor of the defendant. The plaintiff then appealed.

Grounds for Setting Aside a Jury Verdict

On appeal, the plaintiff argued that the verdict should be set aside because it was contrary to the weight of the evidence. The court disagreed and denied her motion. The appellate court explained that a jury verdict in favor of a defendant should not be set aside as contrary to the weight of the evidence unless the evidence weighs so heavily in favor of the plaintiff that the jury could not have arrived at the verdict based on any fair interpretation of the evidence. Continue Reading ›

New York Court Compels Arbitration in Medical Malpractice Case

Published on: October 8, 2021 | By DeFrancisco & Falgiatano

Long-term care facilities often require people to sign contracts prior to admission. Such contracts generally set forth the expectations of both parties, but they may also impact a resident’s right to pursue damages for medical malpractice. This was demonstrated in a recent New York case in which a court upheld an arbitration clause in a short-term admission agreement, dismissing the plaintiff’s medical malpractice and wrongful death claims. If you or someone you love suffered injuries due to the incompetence of a medical provider, you may be owed damages, and you should speak to a Rochester medical malpractice lawyer to evaluate your options for protecting your interests.

The Facts of the Case

It is reported that the decedent was admitted to a rehabilitation and healthcare center in Pennsylvania that was owned and operated by the defendant. At the time of her admission, she signed a short-term admission agreement that, in relevant part, contained numerous provisions stating that disputes between residents and the facility and medical malpractice claims against the facility must be resolved by mediation or arbitration.

Allegedly, the decedent later passed away, after which the plaintiff filed a lawsuit against the defendants in a federal court sitting in New York, alleging medical malpractice and wrongful death claims. The defendant moved to dismiss the case, citing the mandatory arbitration provisions. The court ultimately granted the motion in part, staying the matter pending arbitration. Continue Reading ›