Rochester Medical Malpractice and Personal Injury Lawyer Blog

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.

New York Court Discusses a Hospital’s Vicarious Liability for a Doctor’s Medical Malpractice

Published on: November 17, 2020 | By DeFrancisco & Falgiatano

Typically, when a patient seeks treatment in a hospital, the doctors and nurses that provide the patient with care will be employed by the hospital. Thus, if they perform their duties improperly, the hospital may be deemed vicariously liable for their acts. In some instances, however, medical staff members working in a hospital are independent contractors, not employees, and the question of whether a hospital can be held accountable for their incompetence becomes more complicated. The imposition of vicarious liability on a hospital for the acts of an independent contractor was the subject of a recent opinion issued by a New York court. If you were injured by an incompetent medical provider while you were in a hospital, it is advisable to consult a Rochester hospital malpractice attorney to assess your possible claims.

The Patient’s Care and Subsequent Claims

Allegedly, the plaintiff’s decedent sought admission to the defendant hospital for a psychiatric evaluation and treatment, as he was experiencing suicidal ideation. The defendant physician treated the plaintiff’s decedent throughout the course of his admission. Tragically, however, he died by suicide while he was still receiving inpatient care.

It is reported that the plaintiff, who was the wife of the decedent, filed medical malpractice claims against the defendants, alleging their failure to provide proper care led to the decedent’s untimely death. The defendant hospital filed a motion for summary judgment, arguing in part that it could not be deemed vicariously liable for the acts of the defendant doctor because he was an independent contractor. The court denied the defendant hospital’s motion, and it appealed.

New York Court Discusses Continuous Treatment Doctrine in Failure to Diagnose Case

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

A prompt and accurate diagnosis is an essential element of competent medical care. Thus, a doctor that fails to diagnose a plaintiff in a timely manner may be liable for medical malpractice. If a patient does not promptly pursue claims against a doctor, though, the right to recover damages may be waived unless an exception, such as the continuous treatment doctrine, applies. Recently, a New York court issued a ruling in which it discussed whether the continuous treatment doctrine protected the plaintiff’s claims from being dismissed as untimely. If you sustained injuries due to a delayed or absent diagnosis, you might be entitled to damages and should speak to a diligent Rochester medical malpractice attorney as soon as possible.

The Plaintiff’s Injuries and Claims

It is reported that the plaintiff was admitted to the defendant medical center, where he was treated by the defendant attending physician. He was diagnosed with blood clots and deep venous thrombosis in his extremities and ultimately required above-the-knee amputations of both legs. After his amputations, the plaintiff continued to treat with the defendants for three years, undergoing physical therapy and other postoperative care.

Allegedly, the plaintiff then filed a medical malpractice lawsuit against the defendants, alleging their failure to properly diagnose and treat his conditions resulted in the need for amputations. The defendants moved for dismissal of the plaintiff’s claims, arguing they were barred by the statute of limitations. The plaintiff opposed the defendants’ motion, stating that the continuous treatment doctrine applied and, therefore, his claims were timely.

Court Discusses Avoiding Dismissal in Medical Malpractice Cases in New York

Published on: November 7, 2020 | By DeFrancisco & Falgiatano

In many medical malpractice cases, the defendant will seek to have the claims against it dismissed prior to trial. Even if a defendant demonstrates that it did not depart from the accepted practice of medicine, though, a plaintiff can avoid dismissal by producing evidence sufficient to refute the defendant’s assertions. The standard of review for determining whether to dismiss medical negligence claims in New York was recently discussed in a surgical malpractice case in which the court found sufficient factual disputes existed to proceed to trial. If you were hurt by the acts of a negligent surgeon, it is wise to talk to a dedicated Rochester surgical malpractice attorney to assess what evidence you must produce to demonstrate liability.

Procedural History

Allegedly, the defendant performed a surgical procedure on the plaintiff’s right shoulder. The plaintiff suffered complications after the surgery and ultimately needed to undergo a second procedure. He then filed a medical malpractice lawsuit against the defendant, asserting that the defendant’s negligence caused him to suffer physical and financial harm. The defendant moved to have the plaintiff’s case dismissed by summary judgment. The court denied the defendant’s motion, and the defendant appealed.

Avoiding Dismissal in Medical Malpractice Cases

In New York, a defendant doctor seeking summary judgment in a medical malpractice case has to make a prima facie showing that it did not depart from the accepted and good practice of medicine or that the plaintiff was not harmed by any alleged departure. If the defendant meets this burden, the plaintiff must then set forth evidentiary materials or facts in opposition to the defendant’s position to demonstrate the existence of an issue of fact that must be resolved via trial.

New York Court Affirms Dismissal of Ophthalmology Malpractice Case for Failure to Prosecute

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

Under New York law, people injured by incompetent medical care must pursue claims for damages within a certain timeframe, or they may waive the right to recover compensation. In other words, a patient must not only file a medical malpractice lawsuit within the statute of limitations but must also actively prosecute the claim once it is filed; otherwise, the claim may be dismissed. This was illustrated in a recent ophthalmology malpractice case in which the plaintiff’s repeated delays in litigating her claims resulted in the dismissal of her lawsuit. If you suffered injuries due to negligent eye care, it is advisable to speak to a knowledgeable Rochester ophthalmology malpractice attorney regarding your rights.

The Plaintiff’s Claims

Reportedly, the plaintiff underwent surgical placement of an intraocular lens, which was performed by the defendant ophthalmologist. She suffered complications during the procedure that led to hemorrhaging and the permanent loss of vision in her right eye. She then filed a malpractice lawsuit against the defendant, alleging his failure to direct her to stop taking prescription blood thinners prior to the procedure caused her to suffer harm.

Allegedly, in January 2014, the defendant filed an answer to the plaintiff’s complaint and served the plaintiff with a demand for a bill of particulars and discovery. Plaintiff initially did not respond, but ultimately sat for a deposition. No other action was taken to further the case, however. In April 2018, the defendant served the plaintiff with a notice to resume prosecution, advising the plaintiff he would move to dismiss her case if she did not file a note of issue within 90 days. The plaintiff did not comply with the demand, and her case was dismissed, after which she appealed.

Anesthesia Malpractice Case in New York Dismissed Due to Lack of Evidence of Negligence

Published on: October 28, 2020 | By DeFrancisco & Falgiatano

Anesthesiology is a complicated practice area, and an anesthesiologist that does not properly perform his or her duties can cause a patient grave harm. Simply because an individual suffers harm while undergoing anesthesia prior to a procedure, however, it does not necessarily mean that the person will be able to recover damages in a medical malpractice case. This was demonstrated in a recent New York case in which the plaintiff’s claims were dismissed due to a lack of evidence that the defendant breached the standard of care. If you were hurt by a careless anesthetist, it prudent to meet with a skillful Rochester anesthesia error attorney to assess whether you may have a viable claim for damages.

Factual History of the Case

It is reported the plaintiff presented to a hospital to give birth to her child. During labor, the defendant placed an epidural catheter in the plaintiff’s lumbar spine, through which he administered anesthesia. Following the plaintiff’s child’s birth, the plaintiff experienced foot drop and numbness and weakness in her left leg and foot.

Allegedly, the plaintiff subsequently filed a medical malpractice lawsuit against the defendant, alleging he improperly positioned the catheter, thereby causing her to suffer harm. The defendant moved for dismissal of the plaintiff’s claims via summary judgment. The trial court found in favor of the plaintiff, and the defendant appealed. On appeal, the appellate court reversed the trial court ruling and dismissed the plaintiff’s claims.

New York Court Discusses Continuous Treatment Doctrine in Malpractice Cases

Published on: October 20, 2020 | By DeFrancisco & Falgiatano

Medical malpractice claims in New York must be filed within the statute of limitations; otherwise, the plaintiff’s claim may be dismissed. In cases in which the plaintiff has an ongoing treatment relationship with the defendant, though, the statute of limitations may be tolled pursuant to the continuous treatment doctrine. The parameters of the doctrine were discussed in a recent hospital malpractice case in New York in which the defendant argued the plaintiff’s claims were barred as untimely. If you suffered harm due to a healthcare provider’s failure to provide you with adequate care in a hospital setting, it is in your best interest to speak with a practiced Rochester hospital malpractice attorney as soon as possible to avoid waiving your right to pursue damages.

The Plaintiff’s Treatment

It is alleged that the plaintiff’s decedent presented to the defendant hospital in October 2007 for a bilateral screening mammogram. She was advised that the test did not reveal any abnormalities. She then returned to the defendant hospital in January 2008 with reports of a painful lump in her left breast. One month later, the plaintiff’s decedent underwent a biopsy of the mass at the defendant hospital, and it was revealed that she had breast cancer. She continued to undergo treatment at the defendant hospital until her death due to cancer in November 2008.

Reportedly, the plaintiff filed a medical malpractice and wrongful death case against the defendant, alleging the failure to properly read the decedent’s initial mammogram caused a delay in her cancer diagnosis. The defendant filed a motion to dismiss, arguing that the plaintiff failed to serve the defendant, which was a municipal corporation, with timely notice pursuant to New York law. The court agreed, dismissing the plaintiff’s claims, after which the plaintiff appealed.

Court Discusses Grounds for Granting a Directed Verdict in a Medical Malpractice Case in New York

Published on: October 14, 2020 | By DeFrancisco & Falgiatano

Typically, whether a medical provider is guilty of malpractice is an issue that is presented to the jury at trial. In cases in which liability, or the lack thereof, is clear, though, either party may ask the court for a directed verdict, to avoid the risk of the jury ruling improperly. A trial court judge, like a juror, is human, however, and can make errors in judgment, such as granting a directed verdict when the evidence does not clearly resolve disputed issues. This was illustrated in a recent emergency room malpractice case in New York in which the trial court’s directed verdict was overturned on appeal. If you were harmed by incompetent care rendered in an emergency room, it is advisable to meet with a trusted Rochester emergency room malpractice attorney to discuss your rights.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff presented to the emergency room of the defendant hospital complaining of difficulty hearing and dizziness. He was examined and discharged without a diagnosis. He later suffered profound hearing loss in his right ear. He then commenced a medical malpractice case against the defendant, arguing the failure of the emergency room doctors to recognize and diagnose his inner ear infection led to significant harm.

Allegedly, during the trial, the plaintiff set forth expert testimony stating that the emergency room doctors breached the standard of care by failing to realize that the plaintiff was suffering from a serious infection, and the breach led to the plaintiff’s harm. Following the conclusion of the plaintiff’s case, the defendant moved for a directed verdict. The court granted the defendant’s motion and dismissed the plaintiff’s complaint, after which the plaintiff appealed.

Court Explains Standard for Granting an Adjournment in a Medical Malpractice Case in New York

Published on: October 9, 2020 | By DeFrancisco & Falgiatano

Procedural errors and the failure to comply with court-ordered and statutory deadlines can have a detrimental impact on a plaintiff’s case, and in some instances, may result in the dismissal of a case altogether. This was illustrated in a recent medical malpractice case filed in New York, in which the court dismissed the plaintiffs’ case after they failed to file a response in opposition to the defendants’ motion for summary judgment in a timely manner. If you were injured by a reckless health care provider, you may be owed compensation, and you should speak to a zealous Rochester medical malpractice attorney as soon as possible to avoid waiving your right to pursue damages.

Factual and Procedural History

It is alleged that while the plaintiff husband was at the defendant medical center for cardiac-related physical therapy, he fell off of a stationary bike and suffered severe injuries. Thus, the plaintiff husband and his wife filed a lawsuit against the medical center alleging claims of medical malpractice. The plaintiffs also filed a product liability case against the manufacturer of the bike, and the two cases were ultimately consolidated. The defendant medical center moved for summary judgment after the completion of discovery.

It is reported that the plaintiff filed four requests for adjournments of the deadline to submit an opposition to the defendant’s motion, which the court granted. The plaintiffs eventually filed their brief in opposition after the final deadline had passed. The defendant medical center asked the court to grant its motion as unopposed due to the late submission, while the plaintiffs sought another adjournment. The court granted the defendant’s motion, and the plaintiffs appealed.