Rochester Medical Malpractice and Personal Injury Lawyer Blog

New York Court Dismisses Lack of Informed Consent Claim

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

While most treatments and procedures are ultimately beneficial to patients, they also carry some degree of risk. As such, doctors must advise patients of the benefits and potential harm that could arise from a proposed plan of treatment, as well as any available alternatives, before providing the suggested care. If a doctor fails to do so and the patient suffers harm as a result, it may constitute grounds for a lack of informed consent claim. Recently, a New York court issued an opinion discussing what a plaintiff must prove to demonstrate liability for the failure to obtain informed consent in an oncology malpractice case. If you suffered losses due to a negligent doctor, it is prudent to speak to a skilled Rochester medical malpractice lawyer as soon as possible.

The Plaintiff’s Claims

It is reported that the plaintiff underwent a total hysterectomy and bilateral salpingo-oophorectomy, which was conducted by the defendant gynecologic oncologist. Following the surgery, the plaintiff filed a medical malpractice lawsuit against the defendant, arguing in part that the surgery was unnecessary, was improperly performed, and that the defendant failed to obtain her informed consent. The defendant moved for summary judgment. The trial court granted the motion, after which the plaintiff appealed.

Establishing Liability for the Failure to Obtain Informed Consent

Under New York law, to establish medical malpractice based on a lack of informed consent, a plaintiff must show that the defendant failed to disclose the reasonable alternatives to a treatment in question and failed to explain the foreseeable risks associated with a treatment, that a reasonable doctor working in the same specialty would have disclosed in a similar situation. The plaintiff must also demonstrate that a reasonable patient in the same situation would not have undergone the treatment in question if he or she had been fully apprised of the risks and alternatives. Finally, the plaintiff must prove that the lack of informed consent proximately caused the harm suffered. Continue Reading ›

New York Court Emphasizes the Need for Expert Testimony in Medical Malpractice Cases

Published on: March 30, 2021 | By DeFrancisco & Falgiatano

In all but the clearest of cases, what constitutes medical malpractice is generally not readily understood by the average juror. As such, medical malpractice cases typically hinge on expert testimony. Plaintiffs that fail to produce expert testimony, then, will likely have their cases dismissed, as they will be unable to demonstrate a breach of the standard of care. This was demonstrated in a recent New York opinion, in which the court dismissed a pro se plaintiff’s surgical malpractice claims via summary judgment, due to her failure to produce an expert affidavit. If you were harmed by a negligent surgeon, you could be owed compensation, and it is advisable to meet with a trusted Rochester medical malpractice lawyer to evaluate your situation.

The Plaintiff’s Alleged Harm

Allegedly, the plaintiff underwent a surgical procedure that was performed by the defendant, in which fat was transferred from her back, arms, and abdomen into other parts of her body. Following the procedure, she suffered pain in her right hip and bleeding. Additionally, she believed that pictures were taken of her when she was unconscious during the procedure. She subsequently filed a lawsuit against the defendant, alleging medical malpractice claims. After discovery was completed, the defendant moved for dismissal of the plaintiff’s claims by way of summary judgment. Upon reviewing the evidence presented, the court granted the defendant’s motion.

Proving Medical Negligence Under New York Law

The court explained that, in order to prove a medical malpractice claim in New York, a plaintiff must show that the defendant breached the standard of care accepted in the community and that the breach was the proximate cause of the plaintiff’s harm. Thus, if a defendant demonstrates that it did not depart from the standard of care or that any departure from the standard of care did not cause the plaintiff’s injuries, the defendant will be prima facie entitled to summary judgment. Continue Reading ›

New York Court Discusses the Discovery Rule in Medical Malpractice Claims

Published on: March 19, 2021 | By DeFrancisco & Falgiatano

Lung cancer is a devastating disease, and a delayed diagnosis can worsen the already poor prognosis many patients with lung cancer face. People who suffer harm because of a doctor’s failure to diagnose a disease may be able to recover damages via medical malpractice lawsuits. Just as a delay in providing an accurate diagnosis can cause a patient harm, delays in pursuing claims against a negligent provider can impair a plaintiff’s right to recover damages. The dangers of failing to file a complaint in a timely manner were discussed in a recent New York ruling in a case in which the defendant argued the plaintiff’s claims were time-barred. If your physician failed to provide you with a prompt diagnosis, you could be owed damages, and it is prudent to meet with a skillful Rochester medical malpractice lawyer as soon as possible.

The Plaintiff’s Allegations

It is alleged that the defendants failed to diagnose the plaintiff’s lung cancer in May 2014. The plaintiff did not discover the failure until October 2019. She subsequently filed a medical malpractice lawsuit in March 2020, asserting negligence and lack of informed consent claims. The defendants argued that the plaintiff’s claims were barred by the applicable statute of limitations and moved to dismiss them. The plaintiff argued that a recent amendment to the statute of limitations applied, and therefore, her claims were not time-barred. The court ultimately agreed with the plaintiff and denied the defendants’ motion to dismiss.

Time Limitations in Medical Malpractice Claims

In its analysis, the court explained that the prior version of the law setting forth the time limitations for pursuing medical malpractice claims required them to be filed within two years of the alleged malpractice. In 2018, however, the statute was amended to state that a plaintiff has two and a half years from the date he or she reasonably knows or should know that there is an injury that was caused by malpractice, or within two and a half years of the end of continuous treatment, whichever provides more time. Continue Reading ›

New York Court Affirms Dismissal of Emergency Room Malpractice Claim

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

Sadly, many people seeking care in the emergency room of a hospital ultimately suffer devastating harm. The mere occurrence of a catastrophic injury does not necessarily prove medical malpractice has occurred, though. Instead, a plaintiff seeking damages for medical negligence must produce an expert report showing that the evidence of record supports the claims alleged. Plaintiffs that fail to produce expert testimony that adequately demonstrates malpractice may have their claims dismissed, as demonstrated in a recent New York opinion. If you sustained damages because of the negligence of an emergency room doctor, you might be able to recover compensation, and it is advisable to meet with a dedicated Rochester emergency room malpractice lawyer to assess your possible claims.

The Plaintiff’s Care

Allegedly, the plaintiff visited the defendant’s emergency department for the treatment of what appeared to be a transient ischemic attack. He was evaluated and discharged the following day. A week later, he suffered a stroke. He then filed a medical malpractice lawsuit against the defendant, alleging that the care he was provided in the emergency room was negligent and resulted in his subsequent harm. After discovery was completed, the defendant moved for summary judgment. The plaintiff opposed the motion, but the court granted it regardless. The plaintiff then appealed.

Evidence Needed to Prove Medical Malpractice

A defendant moving for summary judgment in a medical malpractice case must establish, prima facie, that there was no deviation from the standard of care accepted in the community or that any departure that occurred did not proximately cause the plaintiff’s alleged injuries. In turn, the plaintiff must demonstrate that a triable issue of fact exists on one or more of the elements on which the defendant has made a prima facie showing. Continue Reading ›

New York Court Affirms Dismissal of Pediatric Malpractice Case

Published on: March 4, 2021 | By DeFrancisco & Falgiatano

Many children suffer from asthma, and while it is generally a manageable condition, it can lead to acute medical events that require immediate treatment. If a paramedic fails to properly provide emergency care to a child having an asthma attack, it can have tragic consequences. Incompetent care does not always equal malpractice, though, as demonstrated in a recent New York opinion, in which the court ruled that while the defendant breached the standard of care, the breach did not cause the harm suffered. If your child was hurt because of insufficient medical treatment, you could be owed damages, and it is prudent to speak to a trusted Rochester medical malpractice lawyer about your rights.

The Child’s Care

It is reported that the child suffered from asthma and frequently needed to use a nebulizer. In November 2012, when she was seven years old, the child advised her mother that she could not breathe. The mother administered the nebulizer treatment and called 911, which prompted paramedics to arrive. The child was transported to the defendant hospital, where she tragically died that evening.

Allegedly, the mother instituted a medical malpractice lawsuit, arguing in part that the paramedics, as agents of the defendant, negligently failed to perform CPR on the child, resulting in her death. The defendants moved for dismissal via summary judgment, and the court granted the motion. The mother appealed. Continue Reading ›

New York Court Discusses Grounds for a New Trial in Medical Malpractice Cases

Published on: March 1, 2021 | By DeFrancisco & Falgiatano

Typically, people who hit their heads in car collisions will go to a hospital, which in many instances will result in a diagnosis of a traumatic brain injury. If the doctors in a hospital failed to conduct the appropriate tests, though, it can result in a missed diagnosis, which tragically can lead to permanent harm. People who suffer lifelong injuries due to hospital malpractice are often owed substantial damages, but liability may be disputed by the hospital, regardless of what the jury finds. Recently, a New York court discussed the grounds for setting aside a verdict in a case in which the plaintiff suffered irreparable brain damage due to the hospital’s negligence. If you were hurt by incompetent care in a hospital, you could be owed significant damages, and it is advisable to meet with a dedicated Rochester medical malpractice lawyer to assess your claims.

The Plaintiff’s Harm

Reportedly, the plaintiff visited the defendant’s hospital following a car accident. He underwent a CT scan of the brain that showed a hematoma but no acute bleeding. A few weeks later, an MRI was conducted to rule out a diffuse axonal injury, but the scan was incomplete because the plaintiff moved. No further testing was conducted at that time. Three weeks later, the defendant was unable to move to the edge of the bed at a physical therapy session, and the following morning he had slurred speech, lethargy, and could not follow commands.

Allegedly, a CT scan revealed an acute hematoma that required emergency surgery. Following the surgery, he had permanent cognitive injuries and was unable to care for himself. A medical negligence lawsuit was instituted on his behalf against the hospital. A jury trial was held, resulting in a verdict of approximately $22 million. The defendant moved to set aside the verdict due to the alleged misconduct of the plaintiff’s attorney during closing statements. The trial court granted the motion, and the plaintiff appealed. Continue Reading ›

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 ›