Rochester Medical Malpractice and Personal Injury Lawyer Blog

New York Court Discusses Penalties for Failing to File Certificate of Merit in Medical Malpractice Cases

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

People harmed by incompetent medical care often pursue damages via malpractice claims, but not all harm suffered by patients necessarily constitutes grounds for a lawsuit. To avoid frivolous cases, plaintiffs must meet certain pleading requirements to establish the validity of their claims, and if they do not, their cases may be adversely impacted. The potential consequences of failing to abide by procedural rules were demonstrated in a recent New York ruling in a hospital malpractice case in which the court ultimately permitted the plaintiff to proceed despite pleading errors. If you or a loved one suffered harm due to negligent care in a hospital, it is in your best interest to speak to a Rochester medical malpractice attorney about your options.

The Procedural History

It is reported that the plaintiff’s decedent, who had a history of mental illness, climbed to the edge of the roof of his building with the intent of ending his life via suicide. Police officers encouraged him to come down and transported him to the defendant hospital. He was discharged the following day, and one day after that, he died due to suicide. The plaintiff, the decedent’s mother, filed a lawsuit against the defendant, arguing their negligent failure to treat the decedent led to his death.

Allegedly, instead of attaching a certificate of merit to the complaint as required under the New York rules of procedure, the plaintiff’s attorney filed a certificate of counsel stating he was unable to consult a doctor prior to filing a complaint. The plaintiff then failed to file a certificate of merit within 90 days but moved to seek to leave to file a late notice of a claim two years later, at which point the defendant filed a motion to dismiss. The court denied the motion, and the defendant appealed. Continue Reading ›

New York Court Dismisses Wrongful Death Claim Against Hospital

Published on: February 17, 2021 | By DeFrancisco & Falgiatano

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. Continue Reading ›

New York Court Discusses Medical Malpractice Claims Arising Out of Surgery Performed on the Wrong Part

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

Surgery on the wrong part of the body is one of the most egregious medical errors that can occur. Thus, if a doctor operates on the incorrect body part, the person injured may be able to pursue multiple claims against the doctor, including medical malpractice, lack of informed consent, and battery. In a recent New York opinion, a court explained what a patient must prove to establish liability under each of these claims in a case in which the defendant performed surgery on the wrong site on the plaintiff. If you underwent a surgical procedure that was not properly performed, it is in your best interest to speak to a Rochester surgical malpractice attorney to assess your potential claims.

The Plaintiff’s Surgery

It is reported that the plaintiff was scheduled to undergo surgery to remove an abscess on her left leg. The defendant performed the procedure but removed a cyst from the Plaintiff’s Bartholin gland, rather than an abscess from her leg. The plaintiff, who suffered psychological and physical harm because of the improperly performed surgery, filed a lawsuit against the defendant alleging claims of medical malpractice, battery, and lack of informed consent. The defendant moved for summary judgment, and the trial court granted his motion. The plaintiff then appealed, and on appeal, the trial court ruling was reversed.

Claims Arising out of a Procedure Performed on the Wrong Part

On appeal, the court noted that the defendant’s motion included the deposition transcript of the plaintiff wherein she described that the defendant advised her he was going to remove an abscess from her leg but instead operated on her Bartholin gland. Therefore, per the defendant’s own submission, she failed to demonstrate that there were no factual disputes on material issues in the matter as to whether she operated on the wrong area and whether the error caused the plaintiff’s harm, as required to obtain a summary judgment under New York law. Continue Reading ›

Court Explains Immunity Under the Federal Tort Claims Act in a Birth Injury Case in New York

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

Many hospitals and care facilities throughout New York are federally funded. Typically, healthcare practitioners employed by such centers are immune from liability for medical malpractice, and a plaintiff seeking damages for the harm caused by a doctor must proceed solely against the federal government. In a recent New York opinion, a court discussed claims against doctors employed by federal facilities in a case in which the plaintiff suffered the loss of her infant at birth due to the negligence of the defendant doctor. If your child was hurt at birth, it is advisable to speak to a Rochester birth injury attorney to discuss your rights.

The Alleged Harm

Reportedly, the plaintiff received care from the defendant doctor at the defendant hospital during her pregnancy. The defendant was paid directly by the hospital and also received compensation from his patients for services rendered at the hospital. The plaintiff ultimately went to the hospital to deliver her son, who tragically died at birth. She then filed a lawsuit against the defendants, arguing their negligence caused her child’s death. The defendant doctor removed the case to federal court and asked that the federal government be substituted as the defendant, arguing he was immune under federal statutes, as he was employed by a federal facility. The federal government disagreed, however, and the court sided with the government, remanding the matter to state court.

Claims Against Doctors Employed in Federal Facilities

Under the applicable law, employees of a federal medical facility are entitled to immunity. Specifically, the sole remedy for personal harm resulting from medical malpractice of a doctor acting in the scope of his employment while working for a federally funded hospital is prescribed by the Federal Tort Claims Act (FTCA). Pursuant to the FTCA, the law of the place governs the analysis of whether a person was working under the scope of his employment at the time of an alleged incident and is therefore entitled to immunity. As such, New York law applied in the subject case. Continue Reading ›

New York Court Discusses Evaluating Emergency Room Malpractice Claims

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

When people visit the emergency room of a hospital, it is typically because of what they perceive to be an acute medical condition. Emergency room doctors are trained to differentiate between issues that require immediate treatment and nonemergent concerns, but if they make errors in judgment, it can result in grave harm. The standard for evaluating emergency medical care was the topic of a recent New York opinion, in which the court overturned the dismissal of the plaintiff’s claims. If you or a loved one suffered harm because of negligent care in an emergency room, you should contact a Rochester emergency room malpractice attorney regarding your options.

The Decedent’s Care

Allegedly, the plaintiff’s decedent went to the emergency department of the defendant hospital with complaints of a headache and other symptoms. He was evaluated and dismissed. Five days later, he suddenly died due to a subarachnoid hemorrhage. The plaintiff filed a medical malpractice lawsuit against the defendant hospital and emergency room doctors, arguing that their negligent care led to the decedent’s death. After discovery was completed, the defendants moved to have the plaintiff’s claims dismissed through summary judgment. The court granted the defendants’ motion, and the plaintiff appealed.

Evaluating Emergency Room Malpractice Claims

The court explained that it is clearly established under New York law that a plaintiff seeking to prove the liability of a doctor for emergency room malpractice must show that the doctor departed from the standard of care for emergency room doctors that is accepted in the community and that the deviation proximately caused the harm alleged. In turn, a defendant seeking summary judgment must show either that there was no departure from the standard or that any deviation did not cause the plaintiff’s injuries. Continue Reading ›

New York Court Explains Diversity Jurisdiction in Medical Malpractice Claims

Published on: January 27, 2021 | By DeFrancisco & Falgiatano

Typically, medical malpractice cases are filed in New York state courts. Even if a plaintiff files a matter in state court, however, the defendant may be able to remove it to federal court in certain instances. Usually, it is more beneficial for a defendant in a malpractice case to have the case disputes ruled on by federal courts, and therefore plaintiffs may seek grounds to remand their cases back to the courts where they were originally filed. As explained in a recent New York opinion, a federal court may only exercise jurisdiction over a medical malpractice case that does not involve federal law if there is complete diversity between the parties and the amount in controversy is met; otherwise, the case will be remanded to state court. If you were harmed by incompetent medical care, it is prudent to speak to a Rochester medical malpractice attorney to discuss your options.

Procedural History

Allegedly, the plaintiff’s decedent was a resident of a facility owned by the defendant. In May 2019, the decedent fell and suffered grave injuries that ultimately led to his death. The plaintiff then filed a lawsuit against the defendant asserting numerous claims, including violation of New York Public Health Law, medical negligence, and wrongful death. The defendant removed the matter from state court to federal court based on diversity jurisdiction. The defendant moved to dismiss the plaintiff’s claims arguing, in part that it was not a residential health care facility. The plaintiff then filed a motion to remand the matter back to state court.

Diversity Jurisdiction in Medical Malpractice Claims

Pursuant to 28 U.S.C. section 1367(c), the plaintiff asked the court to decline to exercise supplemental jurisdiction over the matter and to remand it back to state court. The court explained that the plaintiff’s reasoning was flawed, however. The court stated that while federal courts are permitted to remand cases if they have dismissed the claims over which they have original jurisdiction, federal courts have original jurisdiction over all state law matters if diversity jurisdiction exists. Thus, the court declined to remand the matter under section 1367(c). Continue Reading ›

Court Discusses Expert Qualifications in Medical Malpractice Cases in New York

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

In New York, medical malpractice cases are typically a battle of the experts. Thus, if a defendant establishes the right to judgment in its favor via expert testimony but the plaintiff is unable to demonstrate there is a need for a trial on disputed issues via the affidavit of an expert, the plaintiff’s claims may be dismissed. The qualifications of an expert were examined in a recent New York opinion, in which the plaintiff’s expert lacked the knowledge necessary to opine on disputed issues of fact, which ultimately resulted in the dismissal of the plaintiff’s malpractice claims against a primary care physician. If you were injured by the negligence of a doctor in a family practice, you should speak to a seasoned Rochester primary care malpractice attorney regarding your rights.

The Decedent’s Harm

It is reported that the plaintiff’s decedent was treated by the defendant primary care practice prior to his death. He suffered from numerous health concerns, including congestive heart failure, diabetes, and diabetes-related infections, myocardial infarction, renal disease, and cardiovascular disease. At some point during his treatment, he was required to undergo emergency dialysis, after which he suffered complications. He also fell numerous times and sustained leg wounds that would not heal.

Allegedly, the plaintiff filed a medical malpractice lawsuit against the defendant, arguing its negligence caused the decedent’s harm and untimely death. The defendant filed a motion to dismiss and produced an expert affidavit in support. The court granted the motion, and the plaintiff appealed.

Court Discusses Expert Qualifications in Medical Malpractice Cases in New York

Published on: January 14, 2021 | By DeFrancisco & Falgiatano

Vasectomies are routine surgeries that are generally completed without complications. Thus, if issues arise after a procedure, it could be due to medical malpractice. A plaintiff alleging a negligently performed vasectomy caused him to suffer harm must generally obtain an expert to testify that the defendant departed from the accepted standard of care. Only certain people can offer expert testimony, though, and opinions offered by ill-equipped individuals are likely to be disregarded. In a recent New York opinion in a case arising out of an improperly performed vasectomy, the court discussed expert qualifications. If you were hurt because of a careless urologist, it is in your best interest to consult a capable Rochester urology malpractice attorney to discuss your possible claims.

The Plaintiff’s Harm

Allegedly, the plaintiff underwent two vasectomy procedures, which were performed by the defendant. Following the procedures, the plaintiff suffered a variety of injuries, such as severe and chronic pain in his testicles. As such, he filed a lawsuit against the defendant, seeking damages for medical malpractice. The defendant moved for summary judgment, but the trial court denied his motion. He appealed the trial court ruling, which was affirmed on appeal.

Qualifications to Testify as an Expert

On appeal, the defendant argued, in part, that the plaintiff’s expert did not set forth an adequate basis for his or her qualifications. Although the plaintiff’s expert was anonymous, the court noted that the report stated that the expert was a doctor licensed to practice in the United States, was a former Chief of Urology, had board certification in urology, and was a fellow in the American College of Surgeons. Continue Reading ›

New York Court Discusses Evidence Sufficient to Sustain a Lack of Informed Consent Claim

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

There are side effects associated with many medical treatments for health concerns. Usually, a doctor will inform a patient of the potential risks of a course of care and advise whether the benefits outweigh the possible harm. If a physician fails to fully educate a plaintiff on the possible consequences of a procedure prior to performing it, and the patient subsequently suffers injuries, the doctor may be liable for failing to obtain the patient’s informed consent. In a recent New York ruling in a case arising out of dermatological malpractice, a court explained the evidence needed to allow a lack of informed consent claim to proceed to trial. If you sustained harm due to a negligent dermatologist, you should speak to a trusted Rochester dermatology malpractice attorney to assess your options.

The Plaintiff’s Care

It is alleged that the plaintiff visited the defendant dermatologist, complaining of a lump on the back of her neck. The defendant diagnosed the lump as a cyst and scheduled the plaintiff for a procedure to remove it. The lump resolved prior to the plaintiff’s appointment, but the defendant advised the plaintiff that she should undergo the procedure regardless. The defendant excised what he believed to be a cyst but was, in fact, a lymph node, causing the plaintiff to suffer pain and nerve damage. The plaintiff then filed a medical malpractice lawsuit against the defendant, setting forth, among other things, a claim of lack of informed consent. The defendant moved for summary judgment, but the court denied his motion, after which he appealed.

Proving Liability for Lack of Informed Consent

After reviewing the evidence, the appellate court affirmed the trial court ruling. As to the informed consent claim, the court noted that under New York law, the fact that the plaintiff signed a generic form indicating her consent was insufficient grounds to entitle the defendant to judgment as a matter of law. Additionally, the defendant’s expert affirmation failed to opine that the consent form was in compliance with the applicable standard for such disclosures for reasonable dermatologists performing similar types of procedures.

New York Court Discusses Evidence of Medical Negligence in Malpractice Cases

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

A patient that suffers unexpected harm during surgery may be able to pursue claims against the doctor that performed the procedure. To prove the physician’s liability, the patient typically must show a deviation from the standard of care, but in cases in which it is obvious that harm was caused by negligence, the patient may not need to show the precise act that caused the injuries suffered. The grounds for determining whether a medical malpractice plaintiff’s evidence that a defendant acted negligently is sufficient to warrant a trial were discussed in a recent New York opinion in which the court denied the defendant orthopedic surgeon’s motion for summary judgment. If you were injured during orthopedic surgery, it is advisable to consult a capable Rochester orthopedic malpractice attorney to determine whether you may be owed damages.

The Plaintiff’s Harm

It is alleged that the defendant orthopedic surgeon performed a surgical revision of the plaintiff’s right knee. At some point during the procedure, the plaintiff suffered an injury to her distal sciatic nerve. As such, she filed a medical malpractice lawsuit against the defendant, alleging he negligently undertook his duties, causing her harm. The defendant filed a motion for summary judgment, which the court denied in part. The defendant then appealed.

Proving Liability in a Medical Malpractice Case

A plaintiff in a medical malpractice case must ultimately prove that the defendant departed from the accepted practice of medicine and that the departure caused the plaintiff to suffer an injury. A plaintiff that cannot pinpoint the precise act that constitutes a deviation from the standard can nonetheless recover damages in certain circumstances. Specifically, a plaintiff that can prove that the injury suffered usually does not occur absent negligence but must have been caused by an instrument within the control of the defendant, and not any negligence of the part of the plaintiff, may be awarded damages.