Rochester Medical Malpractice and Personal Injury Lawyer Blog

New York Court Discusses Medical Malpractice Claims Arising Out of the Failure to Conduct a Sufficient Examination

Published on: June 26, 2020 | By DeFrancisco & Falgiatano

Generally, a physician must conduct a thorough and complete examination of a patient in order to provide the patient with an accurate diagnosis and recommend the appropriate treatment. Whether an examination was sufficient is generally a fact-specific question and varies from case to case. Recently, though, a New York court ruled that a plaintiff could proceed to trial on a medical malpractice claim arising out of the failure to conduct an adequate examination. If you suffered harm following an insufficient examination by your medical care provider, it is in your best interest to speak to an experienced Rochester medical malpractice attorney to assess what claims you may be able to assert in pursuit of damages.

Factual Background

It is reported that over a series of weeks, the plaintiff alleged he received threatening phone calls. He subsequently contacted the police, and during the police investigation, the officers and a mobile crisis team found the plaintiff to be uncooperative and suspicious. Ultimately, the plaintiff was transferred to a hospital for a psychiatric evaluation. Following an examination, he was deemed a danger to himself and others and involuntarily admitted. He was confined in two different hospitals for approximately a month. Following his discharge, he filed a lawsuit against multiple defendants that set forth numerous claims, including a medical malpractice claim against the physician that conducted his psychiatric evaluation. The defendants filed a motion for summary judgment.

Medical Malpractice Claims Arising Out of the Failure to Conduct a Sufficient Examination

As to the medical malpractice claim, the court explained that a plaintiff alleging medical malpractice must prove that the defendant breached the standard of care that applies to his or her medical community and that the breach was the proximate cause of the plaintiff’s harm. The court further noted that a plaintiff pursuing a medical malpractice claim in New York must present testimony from an expert to support his or her claims to demonstrate a prima facie malpractice claim.

Court Discusses Grounds for Changing Venue in Medical Malpractice Case in New York

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

In medical malpractice cases in New York, the plaintiff generally decides where the action will be heard, as the plaintiff is the party filing the lawsuit. A defendant has the right to seek a change of venue, however, if the County the plaintiff chose to file his or her lawsuit is not an appropriate place for the matter to be heard. The grounds for granting a motion for change of venue were recently discussed by a New York appellate court in a hospital malpractice case that was originally filed in Bronx County. If you were injured by negligent care in a hospital, it is prudent to speak to an assertive Rochester hospital malpractice attorney regarding what damages you may be able to recover in a civil lawsuit.

Procedural History of the Case

It is reported that the plaintiff’s decedent was admitted to a hospital in Newburgh and then transferred to a hospital in the Bronx, where she died. The plaintiff filed a medical malpractice lawsuit in Bronx County against the defendants, alleging that the venue was based on the defendant’s business address. The complaint further alleged that the defendants operated a healthcare facility that served customers in the Bronx. The defendants filed a motion for change of venue, claiming that none of the parties resided in the Bronx. The plaintiff opposed the motion, arguing that venue was proper because a large portion of the events that lead to the decedent’s death occurred in the Bronx. The court found in favor of the plaintiff, and the defendants appealed. On appeal, the appellate court reversed and moved the action to Orange County.

Grounds for Changing Venue in a New York Case

Under New York law, a party seeking a change of venue must not only demonstrate that the plaintiff’s choice of venue is improper, but also that the defendant’s choice of venue is appropriate. If a defendant meets this burden, the plaintiff must demonstrate that his or her chosen venue was proper. Further, the procedural rules provide that except when otherwise stated by law, an action must be tried in the County where one of the parties resided when the action commenced or where a substantial portion of the events that gave rise to the action occurred.

New York Court Discusses Staying Concurrent Medical Malpractice Claims Arising Out of the Same Act

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

It is the well-established law in New York that a plaintiff only gets one bite of the theoretical apple. In other words, a plaintiff cannot seek the same damages or litigate the same claims multiple times. Not only does this prevent a plaintiff from seeking to relitigate claims following a final judgment, but it also may prevent a plaintiff from pursuing multiple concurrent claims for the same damages against the same parties. This was discussed in a recent New York case in which the court assessed whether to stay a plaintiff’s state court medical malpractice claims pending resolution of her federal court malpractice claims. If you suffered harm due to negligent medical care, it is advisable to contact a dedicated Rochester medical malpractice attorney to discuss your options for seeking recourse.

Facts of the Case

It is alleged that the plaintiff underwent a surgical procedure that was performed by the defendant. She subsequently filed a lawsuit in the United States District Court for the Southern District of New York against the defendant asserting numerous claims, including intentional torts and medical malpractice, and alleged that the defendant caused her to suffer scars and other permanent harm, and performed the procedure without her consent. The defendant then filed a motion to stay the proceedings due to the fact that the plaintiff filed an action in the Supreme Court of the State of New York against the defendant, arising out of the same set of facts and asserting the same claims. The plaintiff opposed the motion.

Colorado River Abstention

Pursuant to the Colorado River Abstention Doctrine (the Doctrine), in cases in which there are concurrent actions in state and federal court that involved the same parties and the same underlying issues, the court can issue a stay as to one of the proceedings to avoid piecemeal litigation. The court explained that the Doctrine should only be applied in instances involving the contemporaneous exercise of concurrent jurisdictions. As such, the court must find the proceedings are parallel to issue a stay.

Court Discusses Dismissal of Medical Malpractice Cases for Lack of Prosecution in New York

Published on: June 12, 2020 | By DeFrancisco & Falgiatano

In a medical malpractice case, whether the plaintiff’s claims are ultimately successful depends on numerous factors, including whether the plaintiff complies with the rules of procedure. In other words, even if a plaintiff has a meritorious claim, if he or she does not move his or her case along in a reasonable fashion as required under New York law, the plaintiff’s claim may be dismissed, despite the fact that the defendant may have caused the plaintiff’s harm. This was demonstrated in a recent New York case in which a woman sought damages for harm caused by a gynecologist, but failed to take any action in the case for over a year. If you were harmed by incompetent gynecological care, it is prudent to speak to a trusted Rochester gynecologic medical malpractice attorney to analyze whether you may be able to recover damages.

Factual and Procedural History

It is alleged that the plaintiff visited the defendant fertility clinic for an egg donation procedure. Prior to the procedure, the defendant’s employees administered an excessive amount of medication to the plaintiff, which resulted in ovarian hyperstimulation syndrome and multiple ovarian cysts. As such, the plaintiff filed a medical malpractice case against the defendant. The plaintiff filed her lawsuit in April 2015, and in September 2015, the plaintiff joined the issue, and the defendant served the plaintiff with demands for a bill of particulars, discovery requests, and a deposition notice. The plaintiff failed to respond, however, and until July 2017, when she served the defendant with discovery responses and a bill of particulars.

Reportedly, the defendant then sent the plaintiff another deposition notice. Depositions were never conducted or scheduled, however, and no other developments occurred in the case. As such, in 2020, the defendant filed a motion to dismiss the plaintiff’s complaint for lack of prosecution.

Court Discusses the Necessity of Expert Testimony in Medical Malpractice Cases in New York

Published on: June 8, 2020 | By DeFrancisco & Falgiatano

Medical malpractice cases are typically complex, and the issue of whether a health care practitioner departed from the accepted standard of care typically fall outside of the understanding of the average person. Thus, in most medical malpractice lawsuits, the plaintiff will have to rely on expert testimony to establish liability. The importance of an expert affidavit was highlighted in a recent primary care malpractice case in which the court dismissed the plaintiff’s claims due to the fact the plaintiff failed to produce an expert report. If you or a loved one sustained damages because of incompetent medical treatment, it is advisable to confer with a seasoned Rochester primary care malpractice attorney to discuss what compensation you may be able to recover in a civil lawsuit.

Factual Background

Allegedly, the plaintiff, who suffers from diabetes, visited a federally funded health center where he was seen by the defendant physician and a lab technician for medication refills and a general examination. During the plaintiff’s visit, he was alert and oriented and did not note any concerns, such as dizziness, lightheadedness, or compromised vision. As such, no one obtained a reading of the plaintiff’s glucose level during the visit, but the defendant physician ordered blood work that would test the plaintiff’s glucose levels over a three-month period. The plaintiff underwent the test the following day, after which he was discharged from the health center.

It is reported that after the plaintiff was discharged, he was involved in a motor vehicle collision. It was subsequently revealed that the plaintiff’s blood sugar level was below normal, and the plaintiff asserted that he blacked out during the accident due to low blood sugar. He subsequently filed a medical malpractice case against the defendants, seeking damages for the harm caused by the defendant physician’s alleged negligence. The defendants filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims.

New York Court Discusses Grounds For Vacating an Order Dismissing a Medical Malpractice Case

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

In many medical malpractice cases, after discovery is complete, the defendant will file a motion for summary judgment asking the court to dismiss the plaintiff’s claims. In any case in which a defendant files a motion for summary judgment, it is critical for the plaintiff to respond to the motion in a prompt manner, and if the plaintiff fails to do so, his or her claims may be dismissed, regardless of their merit. In some cases, though, a plaintiff may be able to demonstrate that a failure to respond is excusable and avoid dismissal, as shown in a recent New York appellate case. If you suffered injuries because of negligent medical care, it is in your best interest to speak to a capable Rochester medical malpractice attorney regarding what claims you may be able to assert to safeguard your rights.

Factual Background

It is reported that the plaintiff treated with the defendants for a recurring fainting condition. She subsequently suffered injuries due to negligent treatment, after which she filed a medical malpractice case against the defendants. Following discovery, the defendants filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims. The plaintiff failed to file a response in time, however, and the court granted the defendant’s motion as unopposed, dismissing the plaintiff’s claim. The plaintiff then filed a motion to vacate the court’s order, which was denied, after which the plaintiff appealed.

Excusable Failure to Respond to a Motion for Summary Judgment

Under New York law, a plaintiff seeking to vacate a default in opposing a motion must demonstrate that there was a reasonable excuse for the default and that he or she has a potentially meritorious defense to the motion. In the subject case, the plaintiff argued that the failure to respond was the result of a scheduling error on behalf of her attorney, and was not intentional or the result of willful neglect, and that in consideration of the strong public policy in favor of resolving disputes on their merits, the lower court’s decision constituted an abuse of discretion.

New York Court Analyzes Grounds for Vacating a Dismissal of a Hospital Malpractice Case

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

When a plaintiff harmed by medical negligence pursues claims for damages via a civil lawsuit, the plaintiff’s compliance with the laws of procedure is arguably almost as important as the merits of the plaintiff’s case. In other words, if a plaintiff fails to abide by the rules imposed by the law or the courts, it can result in a dismissal of otherwise valid claims. Recently, a New York appellate court discussed what a plaintiff seeking to vacate an order dismissing a hospital malpractice case due to the failure comply with procedural rules must demonstrate in order to obtain a favorable result. If you or a loved one sustained damages due to incompetent care in a hospital, it is advisable to consult a capable Rochester hospital malpractice attorney to discuss whether you may be able to assert a claim for damages.

Facts and Procedure of the Case

It is alleged that the plaintiff’s decedent died from sepsis after she was released from the defendant hospital. Thus, the plaintiff filed a medical malpractice lawsuit against the defendant hospital and the defendant treating physician who cared for the decedent while she was admitted to the defendant hospital. After discovery was complete, the defendants each moved to have the plaintiff’s case dismissed via summary judgment. The court then issued an order setting forth when the plaintiff was required to serve her opposition to the motions upon the defendants, when the defendants were required to file any replies, and when oral argument would be held.

Reportedly, however, the parties stipulated that the plaintiff’s opposition could be filed at a later date. As such, the plaintiff did not file her opposition by the court-imposed deadline. The plaintiff did not seek an adjournment in person until the day the defendants’ replies were due, but the court denied her request and granted the defendants’ motions as unopposed. Subsequently, the plaintiff filed a motion to vacate the order granting the defendants’ motions. The court denied the motion, and the plaintiff appealed.

New York Court Discusses Evidence Sufficient to Avoid Dismissal of Malpractice Claims

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

In any New York medical malpractice case, the plaintiff must not only show that the defendant health care provider failed to provide care that met the applicable standard, but also that the failure caused the plaintiff’s harm, which generally requires expert testimony. Thus, in most cases, whether a plaintiff’s claims will proceed to trial largely depends on the strength and sufficiency of each party’s experts, as discussed in a recent New York medical malpractice case against a primary care physician in which the court affirmed the trial court’s denial of the defendant’s motion for summary judgment. If you were injured by an incompetent primary care physician, it is in your best interest to meet with a skillful Rochester primary care malpractice attorney regarding your right to seek compensation.

Factual Background

It is reported that the plaintiff visited the defendant primary care facility with complaints of leg pain. He was seen by the defendant physician who ordered tests to rule out deep venous thrombosis. The tests came back negative, after which the defendant physician prescribed the plaintiff painkillers and ordered the plaintiff to follow up with an orthopedic surgeon. Approximately two weeks later, an angiogram showed that the plaintiff had complete blockage in two arteries in his leg. He underwent surgery, after which he developed additional symptoms. He ultimately had to undergo an amputation of his leg below the knee.

Reportedly, the plaintiff filed a medical malpractice lawsuit against the defendants, alleging that their failure to diagnose and treat the plaintiff’s condition in a timely manner caused him to lose his leg. Following discovery, the defendants filed a motion for summary judgment, which the trial court dismissed. The defendants appealed the dismissal, but on appeal, the appellate court affirmed.

New York Court Discusses Standards for Granting a New Trial in a Gynecologic Malpractice Case

Published on: May 12, 2020 | By DeFrancisco & Falgiatano

While the jury system is an essential part of jurisprudence in our country, it is not perfect, and juries do not always rule properly. Thus, a party that believes a jury verdict is improper can either seek a new trial or a new verdict. Recently, in a gynecologic malpractice case, a New York appellate court discussed the standards for determining if a new trial is warranted in a case in which the defendant alleged the jury’s verdict was improper. If you sustained harm because of incompetent care rendered by a gynecologist, it is advisable to speak with a seasoned Rochester gynecological malpractice attorney to discuss what claims you could possibly pursue.

Facts of the Case

It is alleged that the plaintiff reported to the defendant gynecologist with complaints of abdominal pain. An examination revealed that the plaintiff had a mass in her uterus, after which the defendant recommended that the plaintiff undergo a dilation and curettage procedure to remove the mass. The defendant performed the procedure in his office, but during the procedure, he punctured the plaintiff’s bowel and uterus. The plaintiff then commenced a medical malpractice lawsuit against the defendant. Following a trial, a jury found in favor of the plaintiff and awarded her $400,000 for future pain and suffering for a period of five years. The defendant filed a motion to set aside the verdict, arguing that the damages for pain and suffering were against the weight of the evidence. The trial court denied the defendant’s motion, and the defendant appealed.

Setting Aside a Verdict Under New York Law

Pursuant to New York law, a motion asking the court to set aside a verdict and seeking a new trial in the interest of justice encompasses errors in a trial court’s ruling on issues such as surprise, newly discovered evidence, and the admissibility of evidence. In evaluating a motion to set aside a verdict, a court must determine whether the verdict is substantially fair or whether it had been affected, using his or her common sense, experience, and sense of fairness rather than precedent.

New York Court Discusses Dismissal of a Medical Malpractice Case for Failure to Comply with Discovery Orders

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

When a patient who suffers harm due to incompetent medical care wishes to pursue damages in a civil lawsuit, it is essential that the patient file the lawsuit within the time constraints set forth under the law. Additionally, as demonstrated in a recent New York appellate orthopedic malpractice case, a plaintiff seeking damages for medical malpractice must move his or her case forward at a reasonable pace, otherwise, the case may be dismissed. If you were injured by careless orthopedic care, it is in your best interest to consult a skillful Rochester orthopedic malpractice attorney regarding what measures you can take to protect your interests.

Factual and Procedural Background of the Case

It is alleged that the plaintiff filed a medical malpractice lawsuit against the defendant hospital and defendant orthopedic surgeon, alleging that she suffered harm due to a negligently performed orthopedic surgery. The plaintiff repeatedly refused to submit to a deposition, and in response, the defendants filed motions to compel the plaintiff to appear for her deposition, which the court granted. Ultimately, the defendants filed a motion to dismiss the plaintiff’s complaint if she did not appear for a deposition by set date. The court issued a conditional order of dismissal, stating that if the plaintiff did not appear for her deposition, her case would be dismissed. The plaintiff did not appear, after which she filed a motion to renew the defendants’ motions. The court denied the plaintiff’s motion, and the plaintiff appealed.

Dismissal for Failing to Comply with Discovery Orders in a Medical Malpractice Case

Upon review, the appellate court found that the trial court properly exercised its discretion by issuing a conditional order of dismissal, given the plaintiff’s record of failing to comply with court orders that required her to appear for her deposition. The court was not persuaded by the plaintiff’s argument that the defendants’ motions should be renewed because her behavior was not contumacious or willful, explaining that by issuing a conditional order, the trial court relieved itself of the need to analyze whether the plaintiff willfully resisted submitting to her deposition.