Rochester Medical Malpractice and Personal Injury Lawyer Blog

Court Discusses Pursuing Medical Malpractice Claims in New York

Published on: August 16, 2021 | By DeFrancisco & Falgiatano

It is not uncommon for people who are frustrated by the level of medical care they receive in federal institutions to represent themselves in medical malpractice claims against their providers. While people have the right to pursue such claims without the assistance of attorneys, they are bound by the same pleading requirements as other parties. Specifically, they must set forth allegations that, on their face, demonstrate a right to recover damages. If they fail to do so, it may result in a dismissal of their claims, as illustrated in a recent New York opinion. If you were harmed by incompetent health care, it is advisable to seek the assistance of a Rochester medical malpractice lawyer to pursue claims against your provider.

The Plaintiff’s Harm

It is reported that the plaintiff is housed in a federal facility. In October 2017, he visited the facility’s medical center with complaints of pain in his left testicle. The defendant doctor prescribed a CT scan that required the plaintiff to ingest liquids prior to the test. He was administered liquids intravenously during the test as well. Plaintiff never received the results of the test and or a diagnosis for the pain in his left testicle.

Allegedly, the plaintiff began to experience symptoms of radiation sickness as well, such as hair loss, pain, and deteriorating teeth. Additionally, his speech was slurred, his tongue was swollen and purple, and he began to experience mental distress. Thus, he filed a federal lawsuit against the defendant, alleging, in part, that the defendant committed medical malpractice. The defendant moved to dismiss the plaintiff’s amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon review, the court granted the motion. Continue Reading ›

New York Court Discusses Notice Required in Medical Malpractice Cases Against Public Corporations

Published on: August 9, 2021 | By DeFrancisco & Falgiatano

Many hospitals and medical facilities in New York are owned or operated by public corporations. While parties injured by medical negligence can pursue malpractice claims against such establishments, they must comply with certain pleading requirements. For example, they must provide notice of their potential claims to the public corporation or municipality within a relatively short time after their harm arises. In a recent ruling issued in a surgical malpractice case, a New York court discussed what constitutes adequate notice of a possible claim. If you suffered harm due to a negligently performed surgery, you might be able to recover compensation, and it is wise to speak to a Rochester surgical malpractice lawyer regarding your rights.

The Plaintiff’s Injuries

It is reported that the plaintiff was admitted to a hospital owned by the defendant public benefit corporation from May through September 2016. During her admission, she underwent numerous surgical procedures that ultimately resulted in the amputation of her right leg. She then initiated a medical malpractice lawsuit against the defendant, seeking compensation for her losses. The defendant moved to dismiss the plaintiff’s claims on the grounds that she failed to provide them with the notice required under General Municipal Law 50-e. The trial court denied the motion, and the defendant appealed.

Notice Required in New York Medical Malpractice Claims Against Public Corporations

Pursuant to General Municipal Law 50-e, it is a condition precedent that a party that wishes to pursue tort claims against a public benefit corporation or municipality must provide adequate and timely notice of the claims. Specifically, the injured party must advise the municipality or public corporation of the time, place, and manner in which the claim arose and must set forth the nature of the claim. Continue Reading ›

New York Court Discusses Sufficiency of Expert Reports in Medical Malpractice Cases

Published on: August 5, 2021 | By DeFrancisco & Falgiatano

In New York, a plaintiff in a medical malpractice case will typically rely on expert testimony to prove the defendant should be held liable for the plaintiff’s harm. Only certain people are qualified to testify as experts, though. Further, even if experts possess the required qualifications, they may nonetheless be barred from testifying if their opinions are not based on facts or reliable science. In a recent opinion, a New York court discussed when an expert should be permitted to testify in a case in which the plaintiff asserted she suffered harm due to a negligently performed C-section. If you suffered harm during the birth of your child, you might be owed damages, and you should meet with a Rochester OB-GYN malpractice lawyer as soon as possible.

The Plaintiff’s Harm

It is alleged that the plaintiff gave birth to her son via C-section. Shortly thereafter, she showed signs of perforated bowels. The defendant performed a surgical diagnosis and repair of the perforation, and the plaintiff was discharged from the hospital eight days later. She had a follow-up appointment with the defendant a few weeks later and was scheduled to meet with him again in two weeks. Twelve days after her follow-up, though, she collapsed and was taken to the hospital, where she was found to be in septic shock. She underwent additional surgeries to treat the infection.

Reportedly, the plaintiff filed a medical malpractice lawsuit against the defendant. Prior to trial, the court ruled in the defendant’s favor on certain evidentiary matters, including a ruling that prohibited the plaintiff’s expert from testifying at trial on the grounds his testimony was speculative. The jury ruled in favor of the defendant, and the plaintiff appealed. Continue Reading ›

New York Court Discusses a Plaintiff’s Burden of Proof in a Medical Malpractice Case

Published on: July 25, 2021 | By DeFrancisco & Falgiatano

In many instances, there are multiple ways to treat an acute injury or chronic condition. As such, simply because a patient does not agree with a doctor’s chosen course of care does not mean the doctor should be deemed liable for medical malpractice. Instead, a plaintiff alleging a physician committed medical malpractice must prove numerous elements, including an element of harm. The plaintiff’s burden of proof in a medical malpractice case was the topic of a recent New York opinion in a matter in which the court dismissed the plaintiff’s claims in their entirety. If you were harmed by incompetent medical care, it is smart to speak to a Rochester medical malpractice lawyer about your potential causes of action.

The Plaintiff’s Allegations

It is alleged that the plaintiff was living in a state facility, when he received treatment from the defendants. During his stay, he requested a CPAP machine for his sleep apnea and a tens machine for back pain which he stated was caused by scoliosis. He did not receive the items, however. Additionally, he requested that the defendants extract two of his teeth due to infection, but they declined to do that as well.

Reportedly, the plaintiff subsequently filed a federal lawsuit against the defendants alleging, among other things, that they were liable for medical malpractice. The defendants moved to dismiss the plaintiff’s complaint, arguing he failed to establish he was entitled to recover damages under any theory of liability. The court ultimately granted the defendants’ motion. Continue Reading ›

Court Explains Establishing Liability for Lack of Informed Consent in Medical Malpractice Cases

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

Most surgeries carry some potential for harm, but many patients determine that the benefits outweigh the risks. Patients must be fully informed of the possible side effects of procedures, though, otherwise, they cannot make educated decisions regarding whether to proceed. As such, doctors who fail to obtain their patient’s informed consent prior to rendering treatment may be held liable for medical malpractice. Recently, a New York court issued an opinion discussing the elements of a lack of informed consent claim in a case in which it ultimately determined the plaintiff set forth adequate evidence a jury trial was necessary. If you sustained injuries due to your doctor’s failure to obtain your informed consent, it is prudent to confer with a Rochester medical malpractice lawyer about your rights.

The Plaintiff’s Harm

It is reported that the defendant operated on the plaintiff. Immediately after the procedure was complete, the plaintiff began experiencing tingling, numbness, and pain in his left leg. He was later diagnosed with permanent nerve damage. He then filed a lawsuit against the defendant, setting forth a lack of informed consent claim. After the parties completed discovery, the defendant moved for dismissal of the plaintiff’s complaint via summary judgment. The trial court denied the defendant’s motion, and she appealed.

Establishing Liability for Lack of Informed Consent

After reviewing the evidence of record, the appellate court affirmed the trial court ruling. The court explained that under New York law, a plaintiff setting forth a medical malpractice claim premised on a lack of informed consent must establish that the defendant failed to disclose the benefits, risks, and alternatives of the procedure that a reasonable physician would have disclosed. Further, the plaintiff has to show that a reasonable individual in the plaintiff’s shoes would not have elected to undergo the procedure if fully informed of the risks and alternatives. Continue Reading ›

New York Court Discusses Elements of Medical Negligence and Lack of Informed Consent Claims

Published on: July 13, 2021 | By DeFrancisco & Falgiatano

A patient that suffers harm due to a medical procedure may seek to recover damages via a medical malpractice lawsuit. In some instances, an injured patient may not only be able to allege the surgeon who performed the surgery is liable for medical negligence but may also be able to pursue a lack of informed consent claim as well. Negligence and informed consent claims have different elements, and merely because plaintiffs can proceed with one claim does not mean they will be able to proceed with another, as demonstrated in a recent New York opinion. If you suffered harm due to the carelessness of a surgeon, it is smart to speak to a Rochester medical malpractice lawyer about your options for seeking damages.

The Plaintiff’s Harm

It is alleged that the defendant performed a total left hip replacement surgery on the plaintiff in August of 2014. The plaintiff subsequently sustained damage to his left femoral nerve, which he asserted was due to the defendant’s negligence during the procedure. Thus, he filed a medical malpractice complaint against the defendant in late 2015, in which he set forth medical negligence and lack of informed consent claims. The defendant moved for summary judgment on both claims, asking the trial court to dismiss the case. The trial court denied the motion, and the defendant appealed.

Establishing Triable Issues of Fact in Medical Negligence and Lack of Informed Consent Claims

The appellate court affirmed the trial court’s order as to the lack of informed consent claim but denied it with regard to the medical negligence claim. The appellate court explained that the evidence of the case, including the plaintiff’s deposition, the written consent form signed by the plaintiff, and the plaintiff’s medical records, demonstrated that the defendant advised him of the benefits, risks, and alternatives to the surgery. Thus, the appellate court found that the plaintiff failed to demonstrate there was a triable question of fact on the lack of informed consent claim and reversed the trial court ruling. Continue Reading ›

New York Court Explains Appealability of Rulings on Motions in Limine in Medical Malpractice Cases

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

In medical malpractice cases, expert opinions are not only needed to establish the standard of care but also to causally link the defendant’s breach of the standard to the plaintiff’s harm or demonstrate that the defendant complied with the standard and should not be held liable for any losses the plaintiff suffered. As such, such cases typically hinge on the persuasiveness of each party’s medical expert and it is not uncommon for one party to attempt to prevent the other party’s expert from testifying. Specifically, parties often file motions asking the court to preclude experts from opining on certain issues or arguing an expert is unqualified or used unreliable methods to draw his or her conclusions. If such a motion fails, however, the aggrieved party likely has no recourse, as demonstrated in a ruling recently issued in a New York medical malpractice case. If you were injured by an incompetent doctor, it is advisable to consult a Rochester medical malpractice lawyer to discuss your possible claims.

The Procedural History of the Case

It is reported that the plaintiff suffered harm due to complications that arose following a spinal surgery. As such, he filed a lawsuit against numerous defendants, seeking compensation for medical malpractice. At the close of discovery, the defendants filed a motion in limine asking the court to preclude the plaintiff’s experts from testifying on the issue of medical causation. Continue Reading ›

New York Court Discusses Proving a Patient-Doctor Relationship Exists in Medical Malpractice Cases

Published on: July 5, 2021 | By DeFrancisco & Falgiatano

Ophthalmologists generally provide routine care, but they are expected to be able to diagnose and treat serious eye issues as well. As such, if they fail to diagnose an illness in a timely manner, it can lead to permanent vision issues and may be grounds for a medical malpractice lawsuit. As with any malpractice matter, though, a plaintiff must prove each element of the underlying claim, including the existence of a doctor-patient relationship. Recently, a New York court discussed what evidence a plaintiff must produce to establish the existence of a patient-physician relationship in a matter arising out of alleged ophthalmology malpractice. If you were harmed by a negligent eye doctor, it is smart to speak to a Rochester ophthalmology malpractice attorney regarding your options for seeking damages.

The Plaintiff’s Harm

Reportedly, the plaintiff visited a hospital due to eye issues and was sent to the defendant practice, where she was seen by the defendant ophthalmologist, who diagnosed her with optic neuritis, among other things. She was given eye drops and advised to follow up with the hospital. At a later visit with the defendant ophthalmologist, it was recommended that she obtain an evaluation with the defendant specialist.

Allegedly, a receptionist at the defendant practice called and scheduled an appointment with the defendant specialist, which the plaintiff later rescheduled. Prior to the appointment, however, she was diagnosed with bilateral acute retinal necrosis and hospitalized for seventeen days. The defendant specialist moved for summary judgment, arguing in part that he had no patient-doctor relationship with the plaintiff. The court granted the motion, and the plaintiff appealed. Continue Reading ›

New York Court Discusses Pleading Requirements in Medical Malpractice Cases

Published on: June 29, 2021 | By DeFrancisco & Falgiatano

Federal law does not require parties pursuing medical malpractice claims to include evidence in their initial pleadings. It does, however, require them to set forth factual assertions that are sufficient to inform defendants of the claims against them so that they may properly prepare defenses. Plaintiffs that fail to meet this burden may face the dismissal of their claims. This was demonstrated in a recent New York ruling in which the court terminated the plaintiff’s medical malpractice claims due to the vagueness of her allegations. If you were injured while being treated in a hospital, it is smart to meet with a Rochester hospital malpractice lawyer about your potential claims.

The Plaintiff’s Allegations

It is reported that the plaintiff filed a lawsuit against the defendant hospital and defendant doctor due to a neck injury. The complaint sounded in medical malpractice, alleging the defendants failed to provide the plaintiff with x-rays and caused her pain and suffering. The complaint alluded to paralysis and included other indiscernible allegations. The defendant moved to dismiss the complaint, arguing that it failed to comply with the pleading standards established by the federal rules of civil procedure. The court agreed and granted the motion.

Pleading Standards in Medical Malpractice Claims

Federal Rule of Civil Procedure 8 establishes the requirements for stating claims. In other words, a pleading setting forth a claim for relief must contain a statement of the basis for the court’s jurisdiction, a plain and short statement of the claim demonstrating that the pleader should be granted relief, and a demand for the relief sought. Continue Reading ›

New York Court Explains the Difference Between Negligence and Medical Malpractice

Published on: June 24, 2021 | By DeFrancisco & Falgiatano

Although it is common for a plaintiff pursuing a medical malpractice case in New York to assert that the defendant acted negligently, there are significant differences between ordinary negligence and medical malpractice claims. Thus, if plaintiffs fail to produce the evidence needed to support malpractice claims, it could adversely impact their cases. A New York appellate court recently discussed the differences between ordinary negligence and malpractice in an opinion issued in a hospital malpractice case. If you suffered losses due to incompetent care you received in a hospital, it is prudent to speak to a Rochester hospital malpractice lawyer to evaluate your potential causes of action.

The Plaintiff’s Harm

It is alleged that the plaintiff visited the defendant hospital with symptoms of a stroke. Diagnostic testing revealed she did, in fact, suffer a stroke, and she was prescribed a medication which was to be administered via infusion, with 10% dispensed over the first minute and the remaining 90% over the next hour. The nursing administered the medication improperly programmed the machine, however, to administer 10% per minute for the first eleven minutes. The mistake was discovered and rectified after about three minutes. The plaintiff began exhibiting signs of distress shortly thereafter, however, and the following day testing revealed she still had clots in her brain.

It is reported that the plaintiff ultimately suffered aphasia and diminished comprehension. She filed a lawsuit against the defendant, alleging it was liable for both medical malpractice and ordinary negligence. The defendant moved for summary judgment, and the court denied the motion. The defendant then appealed. Continue Reading ›