Rochester Medical Malpractice and Personal Injury Lawyer Blog

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.

New York Court Discusses Liability for Medical Malpractice Committed by Independent Contractors

Published on: December 22, 2020 | By DeFrancisco & Falgiatano

Many hospitals and medical facilities hire practitioners who work as independent contractors. While hospitals can be held vicariously liable for harm caused by their employees, a patient seeking to imposed liability on a care provider for injuries sustained during treatment by a non-employee must prove the person was acting as an agent of the provider. In a recent opinion, a New York court discussed the evidence needed to demonstrate ostensible or apparent agency in a case arising out of injuries sustained during treatment with an orthopedic therapist. If you were hurt by a careless therapist, you might be owed compensation, and you should speak to a skillful Rochester orthopedic malpractice attorney to assess your rights.

The Alleged Injury

It is reported that the plaintiff’s daughter was undergoing a therapy session at the defendant medical facility. During the session, she received treatment from the defendant therapist, an independent contractor. At some point, she fell off of a scooter and sustained injuries. The plaintiff then filed a lawsuit alleging medical malpractice claims against the defendants. Among other things, she alleged that the defendant facility should be held vicariously liable for the harm caused by the defendant independent contractor. The defendant facility filed a motion for summary judgment, which was denied. It then appealed.

Demonstrating Ostensible or Apparent Agency

Under New York law, a medical facility may be deemed liable for malpractice committed by its employees but will generally not be deemed liable for harm caused by an independent contractor, even if the facility is affiliated with the independent contractor. A facility may be held accountable for the harm caused by the independent contractor under a theory of apparent or ostensible agency, however.

New York Court Explains Res Ipsa Loquitur in Medical Malpractice Cases

Published on: December 15, 2020 | By DeFrancisco & Falgiatano

Generally, a plaintiff injured by a reckless health care provider must produce expert testimony regarding the breach of the standard of care. In cases in which the harm suffered is clearly the result of negligence, though, the plaintiff may be able to argue that the doctrine of res ipsa loquitur, which means that evidence speaks for itself, applies and an expert opinion is not necessary. In a recent New York opinion in a matter involving the negligence of a proctologist, a court explained what a plaintiff must prove to show that res ipsa loquitur applies. If you were hurt because of a negligent proctologist, you could be owed damages, and you should consult a dedicated Rochester proctology malpractice attorney as soon as possible.

The Plaintiff’s Harm

It is reported that the defendant performed a colonoscopy on the plaintiff. During the procedure, the defendant repositioned the plaintiff, causing him to fall. The plaintiff injured his right shoulder as a result. He then filed a medical malpractice lawsuit against the defendant, alleging negligence claims. Following discovery, the defendant moved to have the plaintiff’s claims dismissed through summary judgment. The plaintiff objected to the motion, arguing that the doctrine of res ipsa loquitur applied, and therefore, he did not need to produce an expert opinion to prove liability. The court granted the defendant’s motion, and the plaintiff appealed.

Res Ipsa Loquitur in Medical Malpractice Cases

A plaintiff seeking to rely on the doctrine of res ipsa loquitur must show that the event that occurred was one that does not happen absent negligence and that the instrumentality that caused the harm suffered was within the exclusive control of the defendant. The plaintiff must also prove that the injury was not the result of his or her voluntary actions.

New York Court Discusses Evidence Demonstrating Negligence in a Medical Malpractice Case

Published on: December 10, 2020 | By DeFrancisco & Falgiatano

In medical malpractice cases, the injured party must show that the health care provider deviated from what is considered the accepted practice of medicine. Thus, the person seeking damages must produce evidence demonstrating the standard of care. In a recent opinion, a New York court discussed what evidence is admissible in a medical malpractice case and how compelling the plaintiff’s evidence must be to show that the defendant caused the harm alleged in a matter arising out of surgical malpractice. If you suffered harm due to an error during a procedure, it is advisable to consult a skillful Rochester surgical malpractice attorney to discuss your claims.

The Injury and Subsequent Pleadings

Allegedly, the plaintiff underwent a surgical hernia repair in December 2013. The defendant performed the surgery. In March 2014, after experiencing difficulty eating and abdominal pain, the plaintiff was diagnosed with a disorder that caused stomach paralysis and made it difficult to digest food. The plaintiff then filed a medical malpractice lawsuit against the defendant, arguing his negligent performance of the December 2013 procedure caused the plaintiff’s harm. A trial was conducted, and the jury ruled in favor of the plaintiff, awarding him $500,000. The defendant appealed, arguing that certain evidence was inappropriately admitted at trial and that the court improperly instructed the jury.

Evidence Demonstrating Negligence in a Medical Malpractice Case

On appeal, the court noted that while the defendant raised a general objection to the admission of a manual into evidence at trial, he failed to raise the specific objection necessary for the court to consider the matter on appeal. Regardless, the court declined to adopt the defendant’s reasoning that the manual was used to demonstrate the standard of care.

New York Court Denies Motion to Amend a Medical Malpractice Complaint as Untimely

Published on: December 6, 2020 | By DeFrancisco & Falgiatano

Under New York law, even if a person harmed by negligent medical care has a legitimate claim for damages, procedural errors may prevent the person from recovering compensation. For example, it is imperative that any medical malpractice claim is filed within two and a half years of the alleged date of harm; otherwise, it may be deemed untimely and dismissed. There are some exceptions to the general rule, though, such as when claims are permitted under the relation-back doctrine. Recently, a New York opinion discussed what a plaintiff must prove to show that the relation-back doctrine applies in a case arising out of primary care malpractice. If you were hurt due to negligent treatment in a primary care setting, you should confer with a diligent Rochester primary care malpractice attorney as soon as possible to protect your rights.

Procedural History of the Case

It is reported that the plaintiff’s decedent treated with the defendant primary care physicians over a span of four days leading up to her death. After the plaintiff’s decedent’s untimely demise, the plaintiff filed a lawsuit, alleging the defendants’ medical malpractice led to the decedent’s death. The facility that employed the defendants at the time of the alleged harm accepted service on behalf of one of the defendants but not the other, as he was no longer employed there.

It is alleged that during the course of discovery, the plaintiff’s attorney realized he named the incorrect individual defendants. He then moved to discontinue the claims against the defendants and name the facility where they worked as defendants. As the statute of limitations had passed, he argued that the relation-back doctrine applied. The court denied his motion, and he appealed.

New York Court Affirms Dismissal of Malpractice Case Due to Inadequate Expert Affidavit

Published on: December 3, 2020 | By DeFrancisco & Falgiatano

In New York, it is well established that a patient harmed by incompetent medical care must meet a specific burden of proof to recover damages. In other words, a plaintiff in a medical malpractice case must produce evidence that is sufficient to show that a doctor failed to comply with the accepted practice of medicine. The plaintiff also has to prove that the failure directly caused the plaintiff’s harm. Usually, this is accomplished via expert reports. Even if a plaintiff produces an affidavit from an expert, though, it still may not be sufficient to demonstrate liability. This was illustrated in a recent ruling in an emergency room malpractice case in which the plaintiff’s claims were dismissed due to an inadequate expert report. If you suffered harm because of the neglectful care you received in an emergency room, it is smart to speak to a skillful Rochester emergency room malpractice attorney to assess your options.

History of the Case

It is reported that the plaintiff’s decedent visited the emergency department of the defendant hospital, where he was treated by the defendant doctors. The reason the decedent sought medical treatment was not disclosed, but he ultimately lost his life while at the hospital. The plaintiff then commenced a medical malpractice lawsuit against the defendants, alleging that their failure to provide the decedent with competent care led to his demise. The defendants moved to have the plaintiff’s claims dismissed via summary judgment, and in support of their motion, produced an expert affidavit. The plaintiff filed a response in opposition to the defendants’ motion and set forth her own expert affidavit. The court found the plaintiff’s affidavit lacking and granted the defendants’ motion. The plaintiff then filed an appeal.

Conflicting Expert Reports in Medical Malpractice Cases

On appeal, the court explained that a plaintiff in a medical malpractice action must produce proof that the defendant doctor deviated from the standards of practice that are accepted in the community and that the departure proximately caused the plaintiff’s harm. Therefore, a defendant moving for summary judgment must establish that the evidence, when taken at face value, does not show a departure from the standard of care or that any departure that occurred did not lead to the plaintiff’s losses.

New York Court Discusses the Sufficiency of Expert Reports in an Orthopedic Malpractice Case

Published on: November 24, 2020 | By DeFrancisco & Falgiatano

In many medical malpractice cases, the plaintiff will assert multiple claims against the defendant. Thus, a defendant that refutes liability must address each claim via an expert affidavit, and the plaintiff must thoroughly demonstrate the flaws in the defendant’s expert’s opinion via a counter expert affidavit. In other words, it is the sufficiency of each party’s expert report that determines what claims, if any, will proceed to trial. The satisfactoriness of expert reports was the topic of a recent New York ruling in a matter in which the plaintiff brought orthopedic malpractice claims against the defendants. If you were hurt by a neglectful orthopedic surgeon, it is wise to consult a Rochester orthopedic malpractice attorney to discuss your rights.

The Plaintiff’s Care and Subsequent Claims

It is alleged that the plaintiff treated with the defendants for issues with his knee. He ultimately underwent reconstructive knee surgery, which was performed by the defendants. Following the surgery, he experienced complications, and he ultimately needed to undergo a below the knee amputation.

Reportedly, the plaintiff filed a malpractice lawsuit against the defendants, alleging medical negligence and failure to obtain informed consent claims. Following discovery, the defendants moved to have both claims dismissed via summary judgment. The court denied the defendants’ motion, after which they appealed.