Rochester Medical Malpractice and Personal Injury Lawyer Blog

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.

New York Court Discusses Medical Malpractice Arising Out of Lack of Informed Consent

Published on: April 30, 2020 | By DeFrancisco & Falgiatano

Many surgical procedures have potential side effects, some of which may be life-altering. Thus, before a patient commits to undergo a surgical procedure, the physician performing the procedure must advise the patient of the known risks of harm, so that the patient can make an informed decision as to whether he or she wants to proceed with the surgery. Thus, if a doctor fails to properly advise a plaintiff of a known risk of harm associated with a procedure, the doctor may be liable for malpractice. This was discussed by a New York appellate court case in which the plaintiff suffered urinary incontinence following a hysterectomy. If you suffered harm due to a negligent gynecologist, it is wise to consult a proficient Rochester gynecology malpractice attorney regarding your potential damages.

Factual Background

Allegedly, the plaintiff underwent a vaginal hysterectomy that was performed by the defendant. Following the hysterectomy, she began to experience urinary incontinence. She subsequently filed a medical malpractice lawsuit against the defendant, alleging that the surgery was unnecessary and that the defendant failed to obtain her informed consent prior to performing the surgery. The defendant filed a motion for summary judgment, which was denied by the court. The defendant subsequently appealed, but upon review, the appellate court affirmed the trial court ruling.

Medical Malpractice Arising Out of Lack of Informed Consent

In its analysis, the court noted that the defendant made a prima facie showing that he was entitled to dismissal of the claims against him as a matter of law, by producing an expert report that stated that the plaintiff’s urinary incontinence was a consequence of chronic interstitial cystitis, which the plaintiff was diagnosed with following the procedure. The court noted, however, that in opposition to the defendant’s report, the plaintiff set forth an expert report opining that urinary incontinence was a well-known consequence of vaginal hysterectomies and that the plaintiff’s symptoms began shortly after the procedure.

New York Court Discusses Evidence Needed to Survive Summary Judgment in a Medical Malpractice Case

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

In most medical malpractice cases, whether the defendant or plaintiff is ultimately successful largely hinges on the credibility of their respective experts. Specifically, many plaintiff’s cases are dismissed prior to reaching trial because the plaintiff cannot produce sufficient evidence via expert testimony to establish that there is a dispute as to the defendant’s liability. In cases in which experts disagree, however, the decision of whether the defendant provider committed medical malpractice ultimately rests with the jury, as discussed in a recent urology case decided by a New York court. If you sustained harm due to incompetent care rendered by a urologist, it is advisable to speak with a skillful Rochester urology malpractice attorney to discuss what evidence you must set forth to establish liability.

Facts of the Case

It is alleged that the plaintiff, who was suffering from prostate cancer, underwent a prostatectomy that was performed at the defendant hospital, by the defendant urologist. Following the removal of the plaintiff’s prostate, his urethra was reattached to the neck of his bladder, and a Foley catheter was placed to allow the urethra to heal and urine to drain. Three days after the plaintiff was discharged from the defendant hospital, he began to feel pain and reported to the emergency room. Upon examination, it was discovered by the defendant doctor that the plaintiff was retaining urine. The catheter was removed by the defendant nurse, and a new catheter was inserted. A CT scan was conducted that showed the catheter was in the bladder, and the plaintiff was again discharged.

Reportedly, the plaintiff had a follow-up appointment the next day, during which he reported continued pain. A second CT scan was ordered that revealed the plaintiff had a perforated rectum and that he had developed a fistula. He subsequently underwent an emergency laparotomy and loop colostomy. He then filed a lawsuit against the defendants, alleging medical malpractice. In turn, each of the defendants filed motions for summary judgment, assigning blame to the other defendants. The court granted the motions of the defendant urologist and the defendant hospital, after which the plaintiff appealed.

New York Court Dismisses Hospital Malpractice Case Due to Insufficient Evidence

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

In many instances in which a person harmed by negligent medical care pursues damages in a medical malpractice lawsuit, the defendant healthcare provider will attempt to refute liability by arguing that the person’s harm was not proximately caused by the defendant’s acts. In such cases, if the plaintiff does not produce sufficient evidence to refute the defendant’s position, the plaintiff’s case may be dismissed. This was demonstrated in a recent hospital malpractice case in which the court dismissed the plaintiff’s case via summary judgment. If you or a family member suffered harm due as a result of negligent care rendered in a hospital, it is in your best interest to speak with a proficient Rochester hospital malpractice attorney regarding what you must prove to recover damages.

Factual Background

Reportedly, the plaintiff’s decedent was admitted to the defendant hospital for treatment. The decedent developed a sacral ulcer, which did not heal. Following the decedent’s death, the plaintiff instituted a medical malpractice lawsuit against the defendant, arguing that the defendant departed from the applicable standard of care in treating the decedent’s sacral ulcer, thereby causing the decedent to suffer harm. The defendant moved to have the plaintiff’s case dismissed via summary judgment, but the trial court denied the defendant’s motion. The defendant subsequently appealed, and on appeal, the appellate court overturned the trial court ruling, dismissing the plaintiff’s claims.

Avoiding Dismissal Via Summary Judgment in a Hospital Malpractice Case

On appeal, the appellate court noted that the defendant set forth a prima facie case that it was entitled to judgment as a matter of law, as required to obtain a dismissal via summary judgment. Specifically, the defendant produced an affirmation from a medical expert that stated that the defendant’s treatment of the plaintiff’s decedent’s sacral ulcer comported with accepted and good practice. Further, the affirmation stated that the failure of the plaintiff’s decedent’s ulcer to heal was caused by the decedent’s pre-existing conditions, rather than any acts or omissions on behalf of the defendant.

Court Discusses Approval of Settlements in New York Birth Injury Cases

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

Medical malpractice lawsuits arising out of birth injuries can be complicated and costly to try to verdict, and the outcomes of such cases can be unpredictable, even if the evidence weighs strongly in favor of the plaintiff. Thus, in many instances, it is prudent for a plaintiff to settle with the defendant prior to trial. Settlements in birth injury cases differ from settlements in other cases; however, in that a court must review and approve the proposed settlement, to protect the interests of the injured child. In a recent case, the United States District Court for the Southern District of New York discussed the factors weighed in evaluating settlements in birth injury cases. If your child was injured at birth because of incompetent medical care, it is prudent to speak with a seasoned Rochester birth injury attorney to discuss what compensation you may be able to recover.

Factual and Procedural History

It is alleged that the plaintiff was scheduled to deliver her child at the defendant hospital. Due to difficulties encountered during the delivery, however, she was transferred to a second hospital where she underwent an emergency C-section. Her daughter nonetheless experienced brain damage which was caused by a lack of oxygen during delivery. As such, the plaintiff filed a lawsuit against the doctors and nurses involved in her treatment. Discovery was conducted, and some defendants were dismissed via stipulation and ultimately, the plaintiff and the remaining defendants came to a settlement agreement. The court then held a conference to determine the fairness of the settlement to the plaintiff’s child.

Approval of Settlements in Birth Injury Cases

The court noted that Local Civil Rule 83.2 governed settlements on behalf of infants. Specifically, the rule requires a proposed settlement to include an affidavit from the infant’s representative that sets forth the facts out of which the lawsuit arose, the extent and nature of the damages suffered, the proposed terms of the settlement agreement, and the manner in which the settlement will be distributed, and any other information that is pertinent. Additionally, the attorney for the plaintiff must provide an affidavit explaining his or her reasons for recommending the settlement, and describing the services he or she rendered to the plaintiff.