Rochester Medical Malpractice and Personal Injury Lawyer Blog

Court Discusses Vicarious Liability in Medical Malpractice Cases in New York

Published on: February 16, 2020 | By DeFrancisco & Falgiatano

If a patient is harmed by incompetent medical care provided in a hospital, the patient may not only be able to pursue claims against the negligent medical provider, but he or she may also be able to pursue claims against the hospital as well. Whether a hospital can be held liable for medical malpractice depends on the facts surrounding the patient’s harm and the relationship between the doctor and the medical provider, as discussed in a recent case decided by a court in the Appellate Division of the Supreme Court of New York. If you were harmed by insufficient care in a hospital, you should meet with a skillful Rochester hospital malpractice attorney to assess what claims you might be able to pursue.

Facts of the Case

Reportedly, the plaintiff visited the emergency department of the defendant hospital in April 2009, with complaints of shortness of breath and chest pain. He was admitted to the defendant hospital, where he was treated by the defendant physician, who was a volunteer. Subsequently, a cardiologist, who was not an employee of the hospital, performed a cardiac catheterization on the plaintiff. A few weeks after the procedure, the plaintiff visited a second hospital due to pain and bleeding in his groin. He was diagnosed with necrotizing fasciitis in his thigh and groin and underwent surgery to remove the necrotic tissue.

It is alleged that he then filed a medical malpractice lawsuit against the defendants, alleging they negligently failed to diagnose and treat a hematoma in his groin in a timely manner, which led to necrosis. The defendants each filed a motion for summary judgment. The court granted the motions, and the plaintiff appealed. On appeal, the court vacated the earlier orders and denied the defendants’ motions. The defendants then appealed.

New York Court Discusses Sufficiency of Expert Affirmations In Medical Malpractice Cases

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

In most medical malpractice cases, the parties will produce expert affirmations in support of their claims or defenses. It is not sufficient to merely produce an expert affirmation, however. Rather, the affirmation’s weight and credibility will be assessed by whether it meets certain requirements. This was demonstrated in a recent case before a court in the Appellate Division of the Supreme Court of New York, in which the court affirmed the dismissal of a pediatric malpractice case due to the insufficiencies of the plaintiff’s expert affirmation. If your child suffered harm due to inadequate care provided by a pediatrician, it is prudent to consult a skilled Rochester pediatric malpractice attorney regarding what evidence you must produce to recover compensation.

Factual Background

It is alleged that the minor plaintiff was treated by the defendant pediatricians and at the defendant hospital in December 2017. The defendants failed to diagnose her with viral encephalitis in a timely manner, which caused her to suffer permanent impairments that required her to need care and assistance for the remainder of her life. Thus, the minor child and her parents, filed a medical malpractice lawsuit against the defendants. The defendants each filed motions for summary judgment, asking the court to dismiss the plaintiffs’ claims against them. The court granted the respective motions, and the plaintiffs appealed. Upon review, the appellate court affirmed the trial court ruling.

Sufficiency of an Expert Affidavit in a Medical Malpractice Case

In the subject case, the defendant hospital established it’s right to judgment in its favor as a matter of law through the affirmation of its expert. Specifically, the expert reviewed the hospital’s records and the depositions taken in the case and found that the hospital’s doctors’ treatment of the minor plaintiff complied with the accepted standard of care and that regardless, any departure did not cause the minor plaintiff’s harm.

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

Published on: February 5, 2020 | By DeFrancisco & Falgiatano

In most medical malpractice cases, the strength of each party’s position comes down to the credibility of their experts. Not only must a plaintiff’s expert set forth an opinion sufficient to establish the defendant’s liability, however, the expert must also demonstrate that he or she is sufficiently qualified to render such an opinion. In a recent surgical malpractice case determined by the Supreme Court, Appellate Division, Fourth Department, New York, the court discussed the parameters for determining whether a plaintiff’s expert report is sufficient to avoid dismissal through summary judgment. If you or a loved one suffered harm due to a negligently performed surgery, you should speak with a diligent Rochester surgical malpractice attorney to discuss what claims you may be able to pursue.

Procedural Background of the Case

It is alleged that the plaintiff’s decedent underwent abdominal surgeries performed by the defendant physicians. The plaintiff then filed a medical malpractice lawsuit against the defendants, arguing that the surgeries were negligently performed, which caused the decedent to suffer the injuries that led to her death. The defendants filed a motion for summary judgment, which the court granted. The plaintiff appealed. On appeal, the appellate court reversed the trial court ruling.

Sufficiency of an Expert’s Qualifications and Report

On appeal, the court found that the defendants met burden imposed on them by establishing that they did not depart from the standard of care, or that their departure did not cause the decedent’s harm, by submitting an expert affidavit that was specific, detailed, and factual in nature, and refuted each of the claims set forth in the plaintiff’s bill of particulars. As the defendants met the burden of proving their compliance with the standard of care and the absence of liability for the plaintiff’s harm, the burden shifted from the defendant to the plaintiff to raise a triable issue of fact. In other words, the plaintiff was required to produce an expert affidavit that opined both that the defendants departed from the standard of care and that the departure caused the plaintiffs harm.

New York Court Highlights Risks of Filing a Pro Se Medical Malpractice Case

Published on: January 29, 2020 | By DeFrancisco & Falgiatano

Some people who suffer injuries due to medical malpractice are reluctant to retain an attorney for numerous reasons and will attempt to proceed through the litigation process on their own. Medical malpractice cases are complicated, however, and require adept handling that is beyond the capacity of most individuals. Recently, the United States District Court for the Southern District of New York highlighted the risks associated with filing a medical malpractice lawsuit without an attorney when it dismissed a complaint in which a pro se plaintiff alleged ophthalmologic malpractice. If you sustained injuries because of an incompetent ophthalmologist, it is in your best interest to retain an experienced Rochester ophthalmology malpractice attorney to assist you in pursuing damages.

Factual and Procedural Background

It is reported that the plaintiff brought a pro se action against multiple defendants, alleging numerous claims. The facts contained in the plaintiff’s complaint were sparse but included the allegation that his eyesight was destroyed by the defendant medical practitioners. The court found that the complaint failed to comply with the pleading requirements of the Federal Rules of Civil Procedure, but granted the plaintiff leave to file an amended complaint.

Sufficiency of a Medical Malpractice Complaint Under Federal Law

While the courts grant pro se parties a fair amount of leeway, any pro se pleading must nonetheless comply with the standards established by the Federal Rules of Civil Procedure. Specifically, a complaint must set forth a short and direct statement of the plaintiff’s claim that shows the plaintiff should be granted relief. Thus, a complaint is not required to contain unnecessary details or to be lengthy. Additionally, a plaintiff cannot pursue claims that bear no relation to each other against numerous parties in one action. Further, although courts liberally construe pro se pleadings, they are not required to wade through a sea of papers produced by a plaintiff to determine if the plaintiff asserts a cognizable claim.

Court Discusses Expert Qualifications in Medical Malpractice Cases in New York

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

A plaintiff pursuing medical malpractice claims in New York must prove that the defendant medical provider deviated from the standard of care, causing the plaintiff harm. In most cases, this is established via the opinion of a medical expert. Although it is beneficial to retain an expert that practices in the same specialty as the defendant, it is not required. If an expert practices in a different area of medicine, however, the plaintiff must prove that the expert is nonetheless qualified to opine on the disputed issues. In a recent orthopedic malpractice case, a New York appellate court discussed what constitutes sufficient evidence to demonstrate an expert is qualified. If you were harmed by negligently rendered orthopedic care, it is prudent to meet with a trusted Rochester orthopedic malpractice attorney to discuss what evidence you must produce to recover compensation.

Facts and Procedural History of the Case

It is reported that the plaintiff underwent a right hip replacement in 2008. Two years later, he underwent a catheterization due to heart blockage and a heart attack. Later that year, due to an infection, he had to undergo a total hip replacement revision surgery. He subsequently filed a medical malpractice lawsuit against the providers that performed his catheterization as well as his orthopedist and family care physician, alleging they were negligent and that their negligence caused him to develop an infection, which required additional surgery. The defendants filed a motion for summary judgment, which the court denied. The defendants appealed.

Qualifications of Medical Experts

A defendant seeking dismissal of a medical malpractice case via summary judgment must show either that there was no departure from the standard of care, or that any departure did not cause the plaintiff’s alleged harm. In the subject case, the trial court found that the defendants set forth prima facie evidence that they were entitled to summary judgment, but that the plaintiff raised a triable issue of fact by way of an expert report in response, which warranted a dismissal of the defendants’ motion. The appellate court disagreed. Specifically, on review, the appellate court found that the plaintiff failed to establish that his expert witness was qualified to offer an opinion on the applicable standard of care that applied to the family physician or orthopedist.

New York Court Discusses a Hospital’s Vicarious Liability in Medical Malpractice Cases

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

It is common for people experiencing acute or critical medical issues to visit a hospital for treatment. If the care provided in the hospital harms, rather than helps, a person, the person may seek damages against the care providers that provided the inadequate treatment. Additionally, in some cases, the injured person may be able to recover damages from the hospital as well. In a recent hospital malpractice case, a New York appellate court explained when a hospital may be liable for negligent care provided to a patient during his or her hospitalization. If you suffered harm due to incompetent care rendered in a hospital, you should consult a skillful Rochester hospital malpractice attorney regarding your potential claims against the parties that caused your harm.

Facts and Procedure of the Case

It is alleged that the plaintiff filed a medical malpractice lawsuit against the defendant physicians and hospital, arguing they deviated from the applicable standard of care, resulting in the death of the plaintiff’s decedent. The complaint alleged, in part, that the named defendant physicians were employees of the defendant hospital, and that they were acting within the scope of their employment when they harmed the decedent. After discovery was completed, the defendant hospital filed a motion for summary judgment, arguing that it was not liable for the negligence of the individually named defendants. The court granted the motion, after which the plaintiff appealed.

A Hospital’s Vicarious Liability for Malpractice

Under New York law, a hospital may be held vicariously liable for the negligence committed by its employees within the scope of their employment, pursuant to the doctrine of respondeat superior. A hospital will generally not be deemed responsible for the negligent acts or omissions of a private physician that is not an employee of the hospital, but is merely working there as an independent contractor, however. An exception to the general rule arises, though, in cases in which a patient visits the emergency department of a hospital, seeking treatment from the hospital and not a particular doctor, or in cases where the hospital exercised control over a doctor, or the doctor acted as an agent of the hospital.

New York Court Discusses What a Defendant Seeking a Dismissal of a Surgical Malpractice Case Must Prove

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

In medical malpractice cases in New York, the plaintiff is required to set forth a bill of particulars that explains in detail the manner in which the defendant care provider caused the plaintiff’s harm. In turn, the defendant bears the burden of refuting each claim set forth in the bill of particulars. If the defendant can successfully prove that he or she is not negligent, the case may be dismissed in its entirety. If the defendant fails to address all of the plaintiff’s allegations, however, the plaintiff will be permitted to proceed with his or her claims, as demonstrated in a recent surgical malpractice case ruled on by a New York appellate court. If you suffered injuries due to an improperly performed surgery, it is advisable to speak with a dependable Rochester surgical malpractice attorney to discuss what you must prove to recover damages.

The Plaintiff’s Care and the Pleadings in the Case

It is reported that the plaintiff underwent surgery at the defendant hospital. Several months later, she was diagnosed with a ventral hernia, which was later revealed to be an incisional hernia. The plaintiff ultimately filed a surgical malpractice lawsuit against the defendant, alleging, in part, that the surgery increased her risk of sustaining an incisional hernia, and that the defendant was negligent due to its failure to diagnose and treat the hernia in a timely manner. After discovery was completed, the defendant filed a motion for summary judgment. The trial court denied the motion, and the defendant appealed.

A Defendant’s Burden of Proof in Seeking a Dismissal of a Surgical Malpractice Case

Under New York law, to succeed on a medical malpractice claim, a plaintiff must establish that the defendant deviated from the applicable standard of care, and the deviation proximately caused the plaintiff harm. In turn, to succeed on a motion for summary judgment in a medical malpractice case, a defendant must establish that either there was no deviation, or the deviation did not cause the plaintiff’s alleged harm. If the defendant does not meet this burden, however, summary judgment will not be granted.

New York Court Discusses When a Change of Venue is Appropriate in Medical Malpractice Cases

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

Generally, a person injured by medical malpractice has the discretion to choose where to file a lawsuit seeking damages. If the defendant believes a lawsuit was filed in an improper county, though, the defendant can challenge the plaintiff’s selection and petition the court to move the case to another location. Recently, the Supreme Court, Appellate Division, Second Department, New York, discussed the basis for transferring a matter to another venue, in a case alleging medical malpractice against numerous defendants. If you were injured by negligent medical care, it is critical to retain a knowledgeable Rochester medical malpractice attorney to assist you in pursuing your claims in the appropriate venue.

Factual and Procedural Background

Allegedly, the plaintiffs filed a medical malpractice action in Dutchess County against numerous care providers. The chosen venue was based upon the purported location of the main office of one of the defendants. The defendants then filed motions to change the venue of the case to Tompkins County. The plaintiffs objected to the defendants’ motions, but the trial court granted the motions on the grounds that Dutchess County was not a proper county for pursuing the claims, despite the plaintiffs’ objections. The plaintiffs then appealed.

What Constitutes Proper Venue in a Medical Malpractice Case

In New York, a defendant can file a motion to change the place of a trial where the county chosen by the plaintiff is not the proper county. To successfully prove a change of venue is warranted, the defendant must not only show that the plaintiff’s chosen venue is improper but also that the venue chosen by the defendant is proper. If the defendant meets this burden, the burden then shifts to the plaintiff to show that the chosen venue is, in fact, proper.

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

Published on: December 26, 2019 | By DeFrancisco & Falgiatano

There are basic elements that each party must meet in a medical malpractice case to show that judgment should be entered in their favor. In other words, the plaintiff must show harm caused by the defendant’s departure from the applicable standard of care. If the plaintiff meets this burden, the defendant must then establish that he or she complied with the standard of care or that any departure did not cause the plaintiff’s alleged harm. If the defendant offers sufficient proof that judgment should be granted in his or her favor, the burden shifts back to the plaintiff to show why his or her claims against the defendant should not be dismissed. Recently, in a New York appellate case in which the plaintiff asserted that she was harmed by a radiologist’s failure to observe her fractures, the court discussed what constitutes sufficient evidence to defeat a defendant’s motion for summary judgment. If you suffered harm due to a mistake by a radiologist, you should meet with a dedicated Rochester radiology malpractice attorney to assess what you must prove to establish liability.

Facts Regarding the Plaintiff’s Treatment

The plaintiff visited the defendant radiologist with complaints of a swollen right heel and ankle. She underwent an x-ray, which the defendant interpreted as showing swelling but no acute dislocation or fracture. The plaintiff’s swelling failed to subside, however, and she underwent a second x-ray approximately one month later, which revealed multiple fractures. The plaintiff then underwent surgery to repair her fractures. She subsequently filed a medical malpractice claim against the defendant, arguing that the defendant’s failure to accurately diagnose her fractures caused her harm. The defendant filed a motion for summary judgment. The trial court denied the motion, and the defendant appealed.

Evidence Sufficient to Defeat a Motion for Summary Judgment

On appeal, the court stated that a defendant who files a motion for summary judgment in a medical malpractice case must establish either that he or she did not deviate from the standard of care or that the departure did not cause the plaintiff’s harm. If the defendant meets this burden, the plaintiff must offer evidence in rebuttal, but only regarding the elements for which the defendant offered sufficient proof.

New York Court Discusses Standard for Granting a New Trial in a Delayed Diagnosis Case

Published on: December 24, 2019 | By DeFrancisco & Falgiatano

A delay in receiving an accurate diagnosis can cause irreparable harm, but how long of a delay is sufficient to constitute malpractice is typically within the purview of the jury. If the jury issues a defense verdict that is contrary to the evidence of record in a delayed diagnosis case, the plaintiff can petition the court for a new trial, but the courts will not overturn a jury’s ruling unless it is clearly warranted under the law. In a recent case decided by a court in the Appellate Division of the Supreme Court of New York, the standards for granting a motion for a new trial were thoroughly explained. If you sustained damages due to a delayed diagnosis, it is wise to speak with a seasoned Rochester misdiagnosis attorney regarding your options for pursuing recourse for your harm.

Facts Regarding the Plaintiff’s Treatment

It is alleged that the plaintiff was at a music festival with her husband when she became gravely ill. She was taken by ambulance to a nearby hospital where it was determined that she had critically low sodium levels, after which she was administered saline. Approximately six hours after she arrived at the hospital, she was deemed unresponsive, and three hours after that, she suffered a seizure. The attending physicians at the hospital subsequently ordered a neurological consultation with the defendant doctor’s medical group. The order did not indicate that there was an urgent need for the consultation.

Reportedly, the following day, the plaintiff underwent a neurological consult with a nurse practitioner. The defendant neurologist reviewed the nurse practitioner’s report and developed a differential diagnosis in which the defendant doctor concluded that the patient had many symptoms of central pontine myelinolysis. The following day, however, an MRI revealed that the plaintiff sustained a lumbar fracture and was suffering from cauda equina syndrome, which is a rare condition that, if left untreated, can result in permanent loss of function from the waist down. The plaintiff underwent surgery three days later.