Rochester Medical Malpractice and Personal Injury Lawyer Blog

Court Discusses Sufficiency of Expert Reports in Medical Malpractice Cases in New York

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

In New York, a party alleging that a doctor committed medical malpractice typically must produce an expert report to establish the manner in which the doctor failed to comply with the standard of care and to link the doctor’s acts to the purported harm. Simply producing a report is not sufficient, however, if the report fails to demonstrate that there are disputed issues of fact as to whether the defendant doctor should be held liable for the plaintiff’s losses. The danger of failing to produce an adequate expert report was highlighted in a recent New York case in which the appellate court affirmed the dismissal of the plaintiff’s claims against a primary care physician. If you or a loved one suffered harm due to the negligence of your treating doctor, it is advisable to speak to a knowledgeable Rochester primary care malpractice attorney to assess what evidence you must produce to prove liability.

Facts of the Case

Allegedly, the plaintiff’s wife visited the defendant primary care physician in May 2013, complaining of a recent sudden weight loss, dry cough, and shortness of breath. The defendant ordered numerous diagnostic tests and prescribed the plaintiff antibiotics. The plaintiff’s wife visited the defendant two days later. During the second treatment session, the defendant ordered a pulmonary consultation and directed the plaintiff’s wife to follow up with him in two weeks. The plaintiff’s wife suffered a cardiac arrest the following day, however, and died three weeks later.

It is reported that the CT scan that was conducted prior to the plaintiff’s wife’s death but not reviewed until after she died indicated that she had numerous tumors on her spine, liver, and lungs that were believed to be cancerous. Thus, the plaintiff filed a medical malpractice lawsuit against the defendant for failing to recommend the plaintiff’s wife seek emergency care. The defendant ultimately filed a motion for summary judgment, which the court granted. The plaintiff then appealed.

Court Discusses Evidence of a Doctor-Patient Relationship Under New York Law

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

Medical doctors are held to a specific standard of care, and if they depart from the standard, they can be held accountable for injuries or illnesses caused by their incompetence. It is axiomatic, however, that they may only be deemed liable for medical malpractice if their negligent acts harm a person in the context of a doctor-patient relationship. In a recent case in which the plaintiff sued several neurosurgeons after he became paralyzed, a New York court explained what level of interaction is sufficient to establish a treating relationship. If you suffered nerve damage or other injuries because of a doctor’s careless acts, you should consult a dedicated Rochester neurosurgery malpractice attorney regarding your possible claims.

The Plaintiff’s Treatment

It is alleged that the plaintiff, who worked as a deckhand on a boat, was moving heavy equipment when he felt a pop in his neck. He was helped off the boat and taken to a medical facility, after which he was transported to the defendant hospital for an evaluation. He was assessed by a doctor in the emergency room, who then called the on-call neurologist and the on-call neurosurgeon, who advised that the plaintiff should be transferred to another hospital to undergo surgery.

Reportedly, the plaintiff was transferred and eventually underwent surgery to decompress his spinal cord, but he was nonetheless paralyzed. He then filed a medical malpractice lawsuit against numerous providers that treated him in connection with his injury, including the neurosurgeon. The neurosurgeon filed a motion for summary judgment, arguing that he did not have a doctor-patient relationship with the plaintiff and therefore, could not be held liable. The court disagreed and denied his motion.

New York Court Discusses Involuntary Commitment as Grounds for a Medical Malpractice Claim

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

Typically, when a patient presents to a hospital with symptoms or complaints, he or she will consent to receive treatment from the attending physicians while retaining the right to leave if he or she chooses. In some instances, however, the hospital will take steps to admit a person without his or her consent, in an attempt to protect the person or others. In a recent hospital malpractice case, a New York court assessed when the involuntary commitment of an individual might constitute grounds for asserting a malpractice claim. If you suffered damages due to a hospital unjustly refusing to allow you to leave, you should meet with a skilled Rochester hospital malpractice attorney to analyze what claims you may be able to pursue.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff visited the defendant hospital with complaints of high blood pressure. According to the facts set forth in the plaintiff’s complaint, after she arrived, she was restrained by security guards and administered medication. She was ultimately admitted against her will and detained for five days, during which she received medication for Parkinson’s disease and other ailments she did not have.

Allegedly, the plaintiff suffered substantial side effects due to the medications she received, which required her to obtain follow-up care. She subsequently filed a lawsuit against the defendant, arguing that it violated her rights and committed medical malpractice by falsely imprisoning her. The defendant filed a motion for summary judgment, which the trial court granted, resulting in the dismissal of the plaintiff’s claims. The plaintiff then appealed, but on appeal, the dismissal of her claims was affirmed.

Court Discusses Grounds for Vacating a Jury’s Verdict in a Medical Malpractice Case in New York

Published on: August 11, 2020 | By DeFrancisco & Falgiatano

Usually, when a plaintiff files a medical malpractice case in New York, he or she will ask that a jury assess liability and damages. In most cases, the jury will rule accurately. In cases in which the jury grossly misevaluates the evidence presented, however, the party that received an adverse ruling can ask the court to vacate the jury’s ruling. In a recent gynecologic malpractice case in which the jury found in favor of the plaintiff, a New York court discussed the grounds for setting aside a jury’s ruling. If you were injured during childbirth or a gynecologic procedure, it is advisable to speak to a skillful Rochester gynecologic malpractice attorney regarding your rights.

Factual History

It is reported that the plaintiff suffered a laceration while giving birth to her child. The defendant initially failed to diagnose the laceration, and once the laceration was assessed, she failed to repair it properly, which resulted in significant pain and complications. The plaintiff then sought damages from the defendant via a medical malpractice case. The case proceeded to trial and ultimately resulted in a jury verdict in favor of the plaintiff for over one million dollars. The defendant then filed a motion to set aside the jury’s verdict as against the weight of the evidence. The court denied the motion, and the defendant filed an appeal.

Grounds for Vacating a Jury’s Verdict in a Medical Malpractice Case in New York

Under New York law, the question of what damages are appropriate in a medical malpractice case is within the jury’s domain, and whatever the jury decides will not be disturbed in most cases. Rather, a court will only vacate a jury’s ruling in cases in which a damages award demonstrates a substantial departure from what is considered reasonable compensation. The court may assess damages awarded in other cases involving similar injuries as a tool to provide guidance and enlightenment regarding whether a verdict constitutes reasonable compensation. The court may look at other factors as well, such as the nature and permanency of the injuries the plaintiff suffered.

Court Discusses Sufficiency of an Expert Affidavit in a Medical Malpractice Case in New York

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

In many instances in which a patient is harmed by negligent medical care, more than one care provider will have provided the patient with inadequate treatment. Thus, it is not uncommon for multiple defendants that practice in different specialties to be named in a medical malpractice lawsuit. While the parties in a medical malpractice case generally need to retain medical experts to testify regarding the standard of care, one expert usually cannot offer an opinion as to multiple specialties. This was demonstrated in a recent New York case in which a mother and child both suffered injuries during the child’s birth. If you or your child sustained an injury during childbirth, it is advisable to consult an experienced Rochester birth injury attorney to discuss what evidence you must introduce to prove liability.

Facts of the Case

It is reported that the plaintiff mother was treated by the defendant gynecologist, who induced labor when the plaintiff was thirty-nine weeks pregnant. During the birth, the plaintiff mother and the plaintiff infant suffered unspecified injuries. Thus, the plaintiffs filed a medical malpractice lawsuit against the defendant gynecologist, as well as the hospital, anesthesiologist, and pediatrician, and orthopedic surgeon that participated in delivering the plaintiff infant and caring for both plaintiffs after the birth. The defendants moved to have the case dismissed via summary judgment, arguing they did not breach their respective standards of care. The trial court granted the motion, and the plaintiff appealed.

Sufficiency of an Expert Affidavit in a Medical Malpractice Case in New York

On appeal, the plaintiff argued in part that the defendant’s expert affidavit regarding the care provided by the anesthesiologist, pediatrician, and orthopedic surgeon lacked probative value. The appellate court agreed and reversed the trial court’s order to the extent it dismissed those defendants. Specifically, the court noted that it was true that under New York law, an expert does not have to be a specialist in a certain field in order to be able to testify competently regarding the accepted practices in that field.

New York Court Dismisses a Medical Malpractice Claim Due to Plaintiff’s Failure to Show a Breach of the Standard of Care

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

In many instances, a doctor’s failure to conduct the tests needed to provide a patient with an accurate diagnosis constitutes medical malpractice. In some cases, however, even if a doctor’s diagnosis is delayed, the doctor may not be held liable for any harm suffered by the patient if the applicable standard of care does not require a doctor to consider all possible diagnoses. This was demonstrated in a recent New York pediatric malpractice case in which the court dismissed the plaintiff’s claims due to the plaintiff’s inability to show that the failure to diagnosis a rare condition constituted a breach of the standard of care. If your child suffered harm because of a delayed diagnosis, it is in your best interest to speak to a trusted Rochester pediatric malpractice attorney to assess what damages you may be owed.

The Child’s Alleged Harm

It is alleged that the defendant pediatrician examined the plaintiff-child in early November 2008 for an infection. The defendant prescribed the plaintiff-child antibiotics. The defendant saw the plaintiff-child again one day later, and five days later, when his condition seemed to be improving. Six days after the initial visit, however, the plaintiff-mother called the defendant and reported that the plaintiff-child had a fever, and had recently undergone dental work, after which the defendant advised the plaintiff-mother to take the plaintiff-child to the emergency room.

Reportedly, the plaintiff-child was diagnosed with bacterial endocarditis, which required surgery to preserve his mitral valve function. The plaintiffs then filed a medical malpractice lawsuit against the defendant, alleging the plaintiff’s condition should have been diagnosed via an echocardiogram, but that one was not performed until ten days after the plaintiff’s initial visit. Following discovery, the defendant filed a motion to dismiss, which the court ultimately granted. The plaintiff then appealed.

New York Court Discusses Burden of Proof in Birth Injury Cases

Published on: July 23, 2020 | By DeFrancisco & Falgiatano

While medical malpractice lawsuits arising out of birth injuries are typically more heart wrenching than other malpractice lawsuits, the burden of proof imposed on all parties involved in a birth injury lawsuit is nonetheless the same. Specifically, the plaintiff must show harm caused by a departure from the standard of care to recover damages, and conversely, a defendant may be able to obtain a dismissal by demonstrating that he or she complied with the standard of care. In a recent birth injury case in New York, the court discussed what constitutes sufficient evidence to prove a triable issue of fact, and ultimately denied the defendant’s motion for summary judgment. If your child suffered an injury at birth, it is critical to retain an assertive Rochester birth injury attorney to help you and your child protect your interests.

Facts Regarding the Case

Reportedly, the plaintiff mother suffered from gestational diabetes during her pregnancy. She was induced at a hospital during the 39^th week of her pregnancy and gave birth to the plaintiff infant, who was delivered via the use of forceps. The plaintiff infant’s umbilical cord was wrapped around his neck when he was born, and he was limp, floppy, and not breathing. Positive pressure ventilation was initiated, and when it did not work, the plaintiff infant was intubated. He subsequently suffered brain damage, which caused cognitive and developmental issues. The plaintiffs filed a medical malpractice lawsuit against the doctor that delivered the plaintiff infant and the hospital where he was delivered. The defendants filed a motion for summary judgment, which the trial court granted. Thus, the plaintiffs appealed.

Burdens of Proof in Birth Injury Cases

Under New York law, the elements a plaintiff must prove in a birth injury case are a deviation from the accepted standard of care in the medical community in which the defendant practices, and proof that the plaintiff’s harm was proximately caused by the deviation. In turn, a doctor that seeks to be dismissed from a birth injury case must make a prima facie showing that he or she did not deviate from the applicable standard of care or that any deviation that occurred was not the cause of the plaintiff’s injuries. To sustain this burden of proof, the defendant must address and refute any specific allegations that are set forth in the plaintiff’s bill of particulars.

New York Court Discusses Elements of a Lack of Informed Consent Claim

Published on: July 19, 2020 | By DeFrancisco & Falgiatano

A doctor may not only injure a patient by performing a procedure improperly but may also cause a patient to suffer harm by failing to warn the patient of the potential risks and side effects of a procedure. Thus, a doctor may commit malpractice by failing to obtain a patient’s informed consent prior to performing a procedure. Recently, a New York appellate court discussed what a plaintiff must prove to recover damages under a lack of informed consent claim, in a case in which the plaintiff was harmed by negligent ophthalmologic care. If you suffered harm because of an ophthalmologist’s reckless acts or omissions, it is wise to speak to a skillful Rochester ophthalmology malpractice attorney to discuss what evidence you must produce to recover damages.

Facts of the Case

It is reported that the plaintiff underwent a corneal transplant of the left eye, which was performed by the defendant ophthalmologist. The plaintiff suffered complications following the procedure, which ultimately caused the transplant to fail and required an emergency corneal transplant. It was ultimately determined that the plaintiff’s retina detached, and he would not be able to see out of his left eye anymore. The plaintiff then filed a medical malpractice lawsuit against the defendant, alleging claims of negligence and lack of informed consent. The defendant filed a motion for summary judgment as to both claims, which the trial court denied. The defendant filed an appeal, arguing, in part, that the trial court erred in refusing to dismiss the informed consent claim.

Elements of an Informed Consent Claim

Under New York law, a plaintiff seeking to recover damages for a medical malpractice claim arising out of lack of informed consent must show that the defendant healthcare provider did not disclose alternatives to a treatment or advise the plaintiff of the associated risks of the treatment that were reasonably foreseeable, and that a competent healthcare provider would have disclosed in the same situation.

New York Court Affirms Dismissal of Emotional Distress Claims in a Medical Malpractice Case

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

Losing a child due to medical malpractice can cause great emotional trauma. In some cases, though, despite the grave emotional harm suffered by a parent that loses a child due to incompetent medical care, a parent cannot recover damages for emotional distress, as demonstrated in a recent obstetrician-gynecologist malpractice case in New York. If you suffered the loss of a child or your child suffered an injury at birth due to negligent medical care, you should speak to a dedicated Rochester medical malpractice attorney regarding what claims you may be able to pursue.

Factual History

It is alleged that the plaintiff presented to a hospital with high blood pressure when she was twenty-six weeks pregnant. She was treated by two obstetrician-gynecologists while at the hospital. Two days after she was admitted to the hospital, she was diagnosed with severe preeclampsia and transferred to the second hospital. The plaintiff ultimately filed a medical malpractice claim against both hospitals and the two obstetrician-gynecologists that treated her, alleging their incompetent treatment caused her to deliver a stillborn child. As part of her claim, the plaintiff sought damages for emotional distress. The defendants filed motions for summary judgment as to the emotional distress claims, arguing that the plaintiff could not recover such damages because her child had been born alive. The trial court granted the defendants’ motions, and the plaintiff appealed.

Damages for Emotional Distress in Medical Malpractice Claims in New York

On appeal, the appellate court affirmed the trial court ruling. The appellate court noted that, under New York law, a mother could not recover compensation for emotional distress for alleged malpractice that causes an injury to a fetus in utero, if the fetus is ultimately born alive. The appellate court further explained that a live birth is defined as a complete extraction or expulsion of a child from its mother, where after the separation from the mother, the child breathes, has a heartbeat, or shows any other evidence of life, regardless of the duration of the pregnancy.

New York Court Explains Evidence Sufficient to Avoid Dismissal of Medical Malpractice Claims

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

It is well-established that in medical malpractice cases in New York, a defendant may obtain a ruling in its favor prior to trial if it establishes a prima facie showing that it is entitled to judgment as a matter of law. Even if a defendant meets its burden of proof, however, a plaintiff may be able to avoid a dismissal of his or her claims against the defendant, if the plaintiff demonstrates that an issue of fact remains that must be resolved via trial. A plaintiff cannot defeat a defendant’s motion for dismissal via summary judgment by introducing a new theory of liability, however, as demonstrated in a recent New York medical malpractice case. If you were injured by incompetent medical care, it is advisable to consult a seasoned Rochester medical malpractice attorney to discuss what evidence you must produce to obtain a favorable outcome.

Facts Regarding the Case

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant, alleging claims of lack of informed consent and negligence. The defendant filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims. The court denied the motion, and the defendant appealed.

Defeating a Defendant’s Motion for Summary Judgment in a Medical Malpractice Case

On appeal, the court reiterated the standard for determining whether a plaintiff’s medical malpractice claim should be dismissed under New York law. Specifically, the court stated that a defendant seeking dismissal via summary judgment in a medical malpractice action must set forth a prima facie showing that he or she either did not depart from the accepted practice of medicine or that any departure from the accepted practice did not cause the plaintiff’s harm. The court further explained that dismissal via summary judgment is not appropriate in cases in which the parties produce conflicting expert reports.