Rochester Medical Malpractice and Personal Injury Lawyer Blog

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.

New York Court Discusses Demonstrating Liability for Surgical Malpractice

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

While some people are reluctant to retain legal counsel prior to filing a medical malpractice lawsuit due to fears regarding costs, the decision to proceed pro se can have drastic consequences, as the plaintiff’s lack of understanding of the law may result in a permanent waiver of the right to recover damages. This was demonstrated in a recent surgical malpractice case in which the court dismissed the plaintiff’s claims due to her failure to make timely objections or to meet her burden of proof. If you were hurt due to the negligent acts of a surgeon, it is in your best interest to retain a capable Rochester surgical malpractice attorney to assist you in your pursuit of damages.

The Plaintiff’s Treatment and History of the Case

It is alleged that in August 2013, the plaintiff underwent two surgical repairs of aneurysms in her right leg, which were performed by the defendant. She continued to treat with the defendant after the surgeries, during which she reported pain in her leg. She then began treating with another physician and, in February 2014, underwent an angioplasty but nonetheless still experienced leg pain. She then filed a lawsuit against the defendant, alleging claims of medical malpractice and lack of informed consent. Following the close of discovery, the defendant moved for summary judgment, asking the court to dismiss the plaintiff’s claims. The court entered an order granting the judgment, and the plaintiff appealed.

Demonstrating Liability for Surgical Malpractice

The appellate court explained the well-established law of New York, which is that a plaintiff in a medical malpractice case must prove that the defendant departed from the accepted community standards of the practice of medicine and that the departure caused the plaintiff to suffer harm. As such, a defendant moving for summary judgment must show that either there was no departure from the standard of care or that any departure did not harm the plaintiff, in order to show the plaintiff’s claims should be dismissed. If a defendant makes such a showing, the burden shifts back to the plaintiff to demonstrate the presence of a factual dispute that requires the matter to proceed to trial.

New York Court Discusses Medical Malpractice Claims Against Municipalities

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

In New York, people that render medical care to other individuals are generally held to a higher standard of care than an ordinary person and may be deemed liable for medical malpractice if they deviate from the standard. In some instances, though, a plaintiff harmed by negligent medical care must prove the existence of special duty in order to recover damages, such as in cases in which the alleged harm was caused by a municipality providing emergency medical services. This was discussed in a recent medical malpractice case filed in New York, in which the defendant asked the court to dismiss the plaintiff’s claims. If you suffered an injury or illness because of incompetent medical care, it is advisable to speak to a zealous Rochester medical malpractice attorney to determine whether you may be able to recover compensation.

Factual and Procedural History

It is reported that someone called 911 after the plaintiff’s decedent suffered a grave injury. The defendants, a municipality, an emergency medical service operated by the municipality, and a fire department operated by the municipality, were delayed in responding to the call. Further, when they arrived at the scene of the accident, they rendered improper treatment to the plaintiff’s decedent, who ultimately died from his injuries. The plaintiff then filed a lawsuit against the defendants, alleging claims of medical malpractice, wrongful death, and negligence. The defendants moved to have the claims dismissed, but the trial court denied their motion, after which they appealed. On appeal, the trial court ruling was affirmed.

Pursuing Medical Malpractice Claims Against a Municipality

On review, the appellate court explained that when a defendant moves to have a complaint dismissed for the failure to state a cause of action, the complaint should be granted a liberal construction. In other words, the facts alleged are presumed to be true, the plaintiff should be afforded every inference that is favorable, and the court’s role is limited to assessing whether the alleged facts fall under any valid legal theory. In other words, the court should not weigh whether the plaintiff’s claims will ultimately be successful. Continue Reading ›

New York Court Discusses Medical Malpractice Claims Against Federally Funded Hospitals

Published on: September 21, 2020 | By DeFrancisco & Falgiatano

Medical malpractice lawsuits are complicated in general and can become especially complex when they involve claims against facilities that receive funding from the federal government, as they involve additional requirements. The consequences of skirting such obligations were shown in a recent hospital malpractice case in New York in which the court dismissed the plaintiff’s claims due to his failure to comply with procedural requirements. If you were hurt by negligent care in a hospital, it is critical to retain a dedicated Rochester hospital malpractice attorney to help you protect your right to pursue damages.

Facts of the Case

It is reported that the plaintiff visited the defendant facility, which receives federal funding, with complaints of an inability to urinate. While he was at the defendant facility, he was on a metal bed when the frame fell apart, causing him to fall and sustain a hip fracture. As a result, he had to undergo surgery and suffered from reduced mobility and an altered mental status. He filed an administrative claim relating to his injury with the appropriate federal agency. The agency did not respond to his claim, however. He then filed a lawsuit against the defendant, setting forth claims of medical malpractice and negligent hiring. The defendant filed a motion to dismiss, arguing that the plaintiff failed to exhaust his administrative remedies in compliance with the FTCA (Federal Tort Claims Act) and that due to this failure, the court could not exercise jurisdiction over the matter.

Exhaustion of Administrative Remedies

Under the FTCA, a plaintiff must present a claim to a federal agency, and the claim must be denied before the plaintiff can proceed with a medical malpractice lawsuit. The court explained that, as the goal of this requirement is to avoid unnecessary litigation, the plaintiff must also provide the agency with sufficient information with which to investigate the claim and evaluate its worth. In other words, the claim must be detailed enough to fulfill the purpose of the FTCA, which is to allow the federal government to facilitate the fair resolution of tort claims. The court further explained that the requirement that a plaintiff adequately present his or her claim is a jurisdictional requirement that cannot be waived.

New York Court Discusses Pre-Suit Requirements for Medical Malpractice Claims Against Federally Funded Hospitals

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

Frequently, a plaintiff harmed by negligent health care will be able to pursue more than one cause of action in a lawsuit against his or her treatment provider. For example, in many instances, a plaintiff will assert both a medical malpractice claim and a lack of informed consent claim. While plaintiffs generally have the right to pursue multiple claims, if they fail to do so in the proper manner, one or more of their claims may be dismissed. This was shown in a recent ob-gyn malpractice case in New York in which the plaintiff’s lack of informed consent claim against a government-owned hospital was barred due to the plaintiff’s failure to provide proper notice. If you or your child suffered injuries due to a doctor’s careless treatment during your pregnancy, it is wise to consult a seasoned Rochester ob-gyn malpractice attorney to discuss your right to pursue damages.

History of the Case

It is reported that the plaintiff underwent treatment at the defendant hospital, which was funded by the federal government, during her pregnancy. She ultimately gave birth to her son at the defendant hospital, via cesarean section, but he tragically passed away later that day. Following an autopsy, the cause of the infant’s death was determined to be respiratory distress syndrome, which was caused by the immaturity of his lungs and hyaline membrane disease. The plaintiff then filed a medical malpractice and wrongful death lawsuit against the defendant and its employees.

Allegedly, the federal government substituted itself as the defendant, due to the fact that the facility was federally supported. The defendant then filed a motion to dismiss, asking the court to dismiss the plaintiff’s claims due to her failure to comply with several aspects of the Federal Tort Claims Act, including the failure to properly inform the defendant she intended to pursue a lack of informed consent claim.