Rochester Medical Malpractice and Personal Injury Lawyer Blog

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 ›

New York Court Explains Spoliation Sanctions in Medical Malpractice Matters

Published on: June 23, 2021 | By DeFrancisco & Falgiatano

In medical malpractice matters, the plaintiff will typically rely, in part, on treatment records to show that the defendant failed to provide competent care. Thus, if a defendant fails to retain medical records, imaging, or other documents relating to the plaintiff’s care, it could adversely impact the plaintiff’s ability to establish fault. Further, as discussed in a recent New York opinion issued in a surgical malpractice case, in certain circumstances, the spoliation of evidence may be a basis for imposing sanctions. If you were injured by a negligently performed procedure, you could be owed compensation, and it is in your best interest to meet with a Rochester surgical malpractice lawyer about your potential claims.

The Plaintiff’s Harm

It is alleged that the plaintiff visited the defendant facility, where he was treated for swelling and pain in his left leg by the defendant doctors. The defendant doctors performed a venogram and diagnosed the plaintiff with deep vein thrombosis. He was admitted to the defendant hospital, where he was treated with numerous medications, including blood thinners and anticoagulants. During his admission, he suffered a brain hemorrhage which rendered him permanently paralyzed on the left side of his body.

It is reported that the plaintiff instituted a lawsuit against the defendants, asserting claims of medical malpractice and lack of informed consent. During discovery, he sought records from the defendants, including imaging from the venogram. The defendants responded they did not have the images and subsequently moved for summary judgment. The plaintiff filed a response in opposition to the motion in which he sought sanctions against the defendants for spoliation of evidence. The trial court granted the defendants’ motion and denied the plaintiff’s request for sanctions, and the plaintiff appealed. Continue Reading ›

Court Explains Causation in New York Medical Malpractice Cases

Published on: June 21, 2021 | By DeFrancisco & Falgiatano

Generally, a plaintiff in a medical malpractice case must prove not only that the defendant was negligent but also that the defendant’s actions caused the plaintiff’s harm. In other words, simply demonstrating that the defendant deviated from the applicable standard of care is not sufficient to present a successful malpractice case. This was illustrated by a recent New York ruling issued in a hospital malpractice case in which the plaintiff’s claims were dismissed due to her inability to prove causation. If you suffered losses due to inadequate care in a hospital setting, it is prudent to confer with a Rochester hospital malpractice lawyer to evaluate your options.

The Plaintiff’s Claims

Allegedly, the decedent visited a hospital with complaints of chest pain. He was admitted and discharged after three days, with the direction to visit an emergency department if his chest pain returned or worsened. Thirteen days later, he visited a second hospital with complaints of chest pain. He was evaluated by the defendant physician but the defendant did not order a cardiology consultation. The defendant decided to send the decedent home rather than admit him to the hospital. Approximately three weeks later, he suffered a cardiac arrest and died shortly thereafter.

It is reported that the plaintiff, the decedent’s wife, filed a malpractice lawsuit against the defendant, alleging that she was negligent in failing to order a cardiology consultation, and her negligence caused the decedent’s death. A jury ultimately found that while the defendant departed from the standard of care, her negligence was not the cause of the decedent’s death. The plaintiff appealed. Continue Reading ›

New York Court Discusses Summary Judgment in Medical Malpractice Claims

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

Few medical malpractice cases are actually tried to a verdict. Some settle before they reach the trial stage, while others are decided via summary judgment. In other words, parties will often try to get the court to rule in their favor as a matter of law once discovery is complete. Obtaining a summary judgment ruling can be difficult, however, as often the evidence demonstrates that there are factual disputes. Recently, a New York court set forth a ruling describing the grounds for granting summary judgment in a malpractice case, in a matter in which the plaintiff filed claims against his cardiologist. If you were hurt by a negligent heart doctor, it is prudent to meet with a Rochester cardiology malpractice lawyer to evaluate your possible claims.

The Plaintiff’s Claims

Allegedly, the plaintiff filed a lawsuit against the defendant, alleging he committed medical malpractice by failing to diagnose his infectious endocarditis, which in turn allowed vegetation to develop on his aortic valve, leading to an embolism and stroke. After discovery was completed, the defendant moved for summary judgment, arguing that the plaintiff failed to demonstrate that he departed from the standard of care or that any departure caused the plaintiff’s harm. The court granted the motion, and the plaintiff appealed.

Summary Judgment in Medical Malpractice Claims

In order to demonstrate that a physician should be held liable for medical malpractice, a plaintiff must show that the physician departed from the standard of care imposed on providers in the community and that such a departure proximately caused the plaintiff’s harm. As such, a defendant moving for dismissal via summary judgment must show that there are no material factual disputes. Continue Reading ›

New York Court Discusses Expert Reports in Medical Malpractice Cases

Published on: May 26, 2021 | By DeFrancisco & Falgiatano

Medical malpractice lawsuits often are reduced to a battle between the experts. In other words, whether a defendant is deemed liable for medical negligence typically depends on which expert’s testimony the judge or jury finds more compelling. In some instances, however, the parties are denied the chance to present their expert opinions to the jury, as their cases are dismissed via summary judgment.

As a persuasive expert report is necessary to obtain a favorable outcome, it is also required to survive a defendant’s motion for dismissal of the plaintiff’s claims, and where a plaintiff’s expert report demonstrates there are factual issues that must be resolved via a trial a court will deny a motion for summary judgment. This was explained in a recent New York opinion in a case arising out of hospital malpractice. If you sustained injuries due to negligent care rendered in a hospital, it is smart to speak to a Rochester medical malpractice lawyer to determine what damages you may be able to recover.

History of the Case

Reportedly, the plaintiff’s decedent underwent surgery at the defendant hospital. During the procedure, a doctor that worked for the defendant catheterized the decedent. At some point during his admission, a nurse employed an improper method to change the catheter, causing the decedent to suffer harm to his prostate and urethra, which led to hemorrhaging and other damages. Continue Reading ›