Rochester Medical Malpractice and Personal Injury Lawyer Blog

Court Discusses Admissibility of Evidence of Prior Bad Acts in New York Medical Malpractice Cases

Published on: December 19, 2019 | By DeFrancisco & Falgiatano

Many medical providers are employees of larger medical groups. As such, patients harmed by negligent medical care often not only pursue claims against the treating physician but also against the hospital or medical group that employed the physician. Depending on the facts of the case, however, the court may decline to allow a plaintiff to proceed against a doctor and the doctor’s employer in the same case. The standards for determining whether claims against a doctor and the medical group that employed the doctor should be severed were recently set forth in a primary care malpractice case reviewed by a New York appellate court. If you were injured by negligent care rendered by a primary care physician, it is advisable to meet with a proficient Rochester medical malpractice attorney to discuss what claims you may be able to pursue.

Procedural Background of the Case

Allegedly, the defendant primary care physician engaged in inappropriate physical contact with the plaintiff during a routine physical. The plaintiff subsequently filed a lawsuit alleging medical malpractice claims against the defendant physician and the defendant medical group that employed the defendant physician. The plaintiff also asserted negligent hiring and supervision, and vicarious liability claims against the defendant medical group. The defendant physician filed a motion to sever the claim against him from the remaining claims. The court granted the motion, and the plaintiff appealed.

Severance of Claims in a Medical Malpractice Lawsuit

In New York, a court may order a severance of certain claims or may order a separate trial of any issue or claim. In the subject case, the defendant physician alleged that the claims against the defendant medical group arose out of the allegation that the defendant physician engaged in similar conduct with another patient. The defendant physician further alleged evidence of whether he previously acted inappropriately with a patient would not be admissible in a trial on the issue of whether he was liable to the plaintiff for medical malpractice.

New York Court Explains Standard for Setting Aside a Verdict in Medical Malpractice Cases

Published on: December 16, 2019 | By DeFrancisco & Falgiatano

One of the key elements in any medical malpractice case is proximate cause. In other words, the injured party must prove not only that the care provider deviated from the appropriate standard, but also that the deviation caused the injured party’s harm. Causation is often difficult to prove in medical malpractice cases, and parties do not always agree as to what constitutes adequate proof. This was demonstrated in a recent hospital malpractice case in which the defendants appealed the jury’s verdict in favor of the plaintiff as against the weight of the evidence, arguing that the plaintiff failed to prove the defendants caused her harm. If you were injured by negligent care rendered in a hospital, it is advisable to meet with a proficient Rochester hospital malpractice attorney to discuss what claims you may be able to pursue.

Facts Surrounding the Plaintiff’s Treatment

It is reported that the plaintiff was admitted to the defendant hospital for the treatment of an acute asthma attack. During her admission, the plaintiff was treated by multiple physicians, including two attending physicians, a pulmonologist, and a nephrologist, all of whom were named as defendants. The plaintiff became hypercapnic during her admission and ultimately suffered permanent and severe brain damage. She subsequently filed a malpractice lawsuit against the defendants. Following a trial, the jury awarded the plaintiff $90,000,000 for pain and suffering, as well as special damages. The defendants appealed, arguing that the verdict was against the weight of the evidence.

Proximate Cause Under New York Law

Under New York law, a court will not disturb a jury’s verdict unless it is contrary to the weight of the evidence. In other words, if the jury’s conclusion does not comply with rational reasoning given the evidence produced at trial. As such, any verdict that is not completely irrational should not be disturbed. A judge evaluating whether a verdict is against the weight of the evidence must assess whether the verdict relies on a fair evaluation of the evidence, viewing the facts in a light most favorable to the plaintiff.

New York Court Discusses Standard of Care for Treatment Outside of the Scope of a Doctor’s Specialty

Published on: December 9, 2019 | By DeFrancisco & Falgiatano

While many malpractice cases arise out of incompetent care within a doctor’s specialty, such as the failure to diagnose or a delayed diagnosis, some arise out of harm caused by a doctor practicing outside of the scope of his or her expertise. This was demonstrated in a recent case in which the court discussed the standard of care imposed on a podiatrist that allegedly caused harm by performing a non-FDA approved therapy for Lyme disease on a patient. If you were harmed by an unapproved medical treatment or other negligent care provided by a podiatrist, it is advisable to speak with a seasoned Rochester podiatry malpractice attorney regarding your case.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff saw an advertisement in a magazine in which the defendant podiatrist stated he could treat Lyme disease. The plaintiff subsequently visited the defendant, who routinely stated he could cure non-podiatric issues, for treatment of Lyme disease. The defendant recommended that the plaintiff undergo ozone therapy, which is not an FDA-approved treatment. The plaintiff underwent three ozone therapy sessions. Following the third session, he fell asleep, and when he awoke, he was disoriented and confused. He was taken to a hospital where an examination revealed he had left-sided weakness and paralysis. He was admitted and hospitalized for approximately two weeks.

Allegedly, the plaintiff was evaluated for seizure and stroke but did not receive a definitive diagnosis. Following his discharge from the hospital, the plaintiff was unable to get out of bed for three months. He subsequently filed a medical malpractice lawsuit against the defendant, alleging that the ozone therapy caused inflammation in his brain, which led to his subsequent symptoms. The defendant filed a motion for summary judgment, which the trial court granted. The plaintiff then appealed.

New York Court Discusses What Constitutes Sufficient Evidence to Support a Failure to Diagnose Claim

Published on: November 28, 2019 | By DeFrancisco & Falgiatano

In many medical malpractice cases, both parties will rely upon the medical records to support their position. While the absence of complaints of pain in a medical record may harm the case of a plaintiff alleging a failure to diagnose claim, it is not dispositive, as shown in a recent case decided by the appellate division of the Supreme Court of New York. If you sustained injuries due to a delayed diagnosis, it is in your best interest to consult an assertive Rochester misdiagnosis attorney to discuss what evidence you must produce to prove your care provider should be held liable for your harm.

Facts and Procedural Background of the Case

It is reported that the plaintiff visited the defendant hospital in September 2013, where he underwent a colonoscopy performed by the defendant gastroenterologist. Immediately after the colonoscopy, the plaintiff complained of severe abdominal pain. The attending physicians did not conduct any additional tests, however, and the plaintiff was discharged. Ultimately, the plaintiff was diagnosed with a perforated colon. He subsequently filed a lawsuit against the defendants, alleging medical malpractice and negligent hiring. The defendants filed a motion for summary judgment on both counts. The court granted the motion, after which plaintiffs appealed.

Evidence Sufficient to Withstand Summary Judgment

On appeal, the court affirmed the order as to the negligent hiring claims, stating that there was no evidence that any of the medical providers involved in the plaintiff’s care were unqualified or had a history of providing negligent care. The court reversed the portion of the order dismissing the medical malpractice claims, however.

Dismissal of Plaintiff’s Claims Highlights Importance of Expert Affidavits in New York Medical Malpractice Cases

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

A delayed diagnosis can cause irreparable harm, but proving a delay in providing an accurate diagnosis caused a person’s damages can be challenging and will typically require the testimony of one or more experts. The pitfalls of failing to obtain a qualified expert were recently demonstrated in a pediatric malpractice case, in which the court affirmed the dismissal of the plaintiff’s case due to an insufficient expert affidavit. If your child suffered harm due to negligent care provided in a hospital, it is prudent to speak with a capable Rochester pediatric malpractice attorney regarding your potential claims.

Factual and Procedural Background

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant hospital, arguing that the hospital’s delayed diagnosis caused the plaintiff to suffer harm. The plaintiff’s precise injuries were not set forth in the case. The defendant filed a motion for summary judgment, which the court granted, dismissing the plaintiff’s case. The plaintiff appealed, but on appeal, the appellate court affirmed the trial court’s decision.

Sufficiency of a Plaintiff’s Expert Affidavit

On appeal, the court stated that the defendant set forth a prima facie case showing that it was entitled to judgment as a matter of law. Specifically, the defendant submitted an expert affidavit from a pediatric neurologist that opined that the defendant did not depart from the accepted and good practice of medicine and that any departure did not cause the plaintiff’s alleged harm. The affidavit stated that as the plaintiff had only suffered one seizure due to a fever, imaging of the plaintiff’s brain was not indicated when he visited the emergency room of the defendant hospital. Further, the affidavit opined that although the plaintiff suffered from an arterial venous malformation (AVM), the AVM was not the cause of the plaintiff’s harm.

Court Reviews a Plaintiff’s Burden in Opposing Summary Judgment in a New York Medical Malpractice Case

Published on: November 19, 2019 | By DeFrancisco & Falgiatano

In New York medical malpractice cases, the burden moves from the plaintiff to the defendant and then returns to the plaintiff. In other words, case law established that if the defendant set forth prima facie evidence showing it was entitled to a dismissal of the plaintiff’s claim, the plaintiff was required to refute the defendant’s arguments by showing that the defendant deviated from the standard of care and that the deviation caused the plaintiff’s harm. Recently, however, the Supreme Court, Appellate Division, Fourth Department, New York, analyzed the burden imposed on a plaintiff asserting medical malpractice claims and found it to be improper, in a case alleging cardiology malpractice. If you were injured by inadequate care rendered by a cardiologist, it is in your best interest to speak with an experienced Rochester cardiology malpractice attorney regarding your potential claims.

Factual Background of the Case

It is alleged that the plaintiff’s decedent underwent heart surgery performed by the defendant cardiologist and received post-surgical care from the other named defendants. Following the decedent’s death, the plaintiff filed a medical malpractice claim against the defendants. The defendants filed motions for summary judgment, which were granted in part and denied in part. The defendants whose motions were denied appealed.

Shifting Burdens in Medical Malpractice Cases

On appeal, the court noted that the case provided a good opportunity for the court to review whether the burden-shifting standard applied in medical malpractice cases was appropriate. The court stated that it was well-established that a defendant seeking dismissal via summary judgment in a medical malpractice case bears the burden of proving that he or she did not depart from the applicable standard of care, or that any departure did not harm the plaintiff. If the defendant meets this burden, however, the plaintiff must show both that the defendant deviated from the standard of care and that the deviation caused the plaintiff’s harm.

New York Court Denies Leave to File Late Notice of a Claim in a Birth Injury Case

Published on: November 12, 2019 | By DeFrancisco & Falgiatano

There are strict timelines for when a person may file a medical malpractice case under New York law. While there are some exceptions to the statutory time limitations, a delay in pursuing a claim may result in a waiver of the right to recover damages. This was shown by a recent birth injury case decided by a court in the appellate division of the Supreme Court of New York, in which the court affirmed the dismissal of the plaintiff’s case in its entirety. If your child sustained injuries at birth due to negligent medical care, you should speak with a capable Rochester birth injury attorney regarding the claims that you may be able to set forth.

Factual and Procedural Background of the Case

The minor plaintiff filed a motion for leave to file a late notice of claim against the defendant, a hospital that is a public corporation. Specifically, the plaintiff sought leave to file a medical malpractice claim arising out of injuries he alleged he suffered at birth. The defendant filed a motion to dismiss. The court granted the defendant’s motion and denied the plaintiff’s motion, after which the plaintiff appealed. On appeal, the appellate court affirmed the trial court ruling.

Leave to Submit Late Notice of a Claim Under New York Law

Under General Municipal Law Section 50e, a plaintiff who wishes to assert a tort claim against a public corporation must provide the corporation with notice of the claim within 90 days of when the harm occurs. A plaintiff can seek leave to file late notice of a claim against a public corporation, but a court will only grant leave under certain circumstances. Specifically, the court will assess the cause of the delay and whether the delay caused substantial prejudice to the defendant.

New York Court Discusses Ramifications of Attorney Misconduct in a Surgical Malpractice Case

Published on: November 5, 2019 | By DeFrancisco & Falgiatano

Anyone involved in a surgical malpractice case has the right to be represented by an attorney. If a person waives that right and chooses to proceed on his or her own behalf, then any attorney involved in the case can communicate directly with the person. If a person is represented by counsel, however, all communications must be sent to the person’s attorney. In a recent surgical malpractice case before a New York appellate court, the court discussed whether an attorney that violates the rules of professional conduct by speaking directly with a represented party should be disqualified from the case. If you or a loved one suffered harm due to surgical malpractice, it is wise to meet with a proficient Rochester surgical malpractice attorney to discuss your case.

Factual Background of the Case

It is reported that the plaintiff’s husband underwent surgery on his ankle. Three days after the surgery, the plaintiff’s husband died. The plaintiff subsequently filed a malpractice lawsuit against several people and entities involved in her husband’s surgery and subsequent care. During discovery, the plaintiff’s attorney sought to depose a witness who was part of the team that treated the plaintiff’s husband on the day he died, but who was not a party in the case. In the process of attempting to locate the witness, the plaintiff’s counsel was advised by an insurance company that another attorney would handle the matter for the witness.

Despite being informed that the witness was represented by counsel, the plaintiff’s counsel deposed the witness without her attorney being present. The defendants subsequently moved to strike the deposition testimony and to disqualify the plaintiff’s attorney, and the witness joined in the motion. The court found that plaintiff’s counsel violated the Professional Rules of Conduct, and granted the motion to strike, but did not disqualify plaintiff’s counsel. Defendants appealed.

Court Analyzes Liability for Failing to Obtain Informed Consent in New York Medical Malpractice Cases

Published on: October 31, 2019 | By DeFrancisco & Falgiatano

When a person is harmed by negligent medical care, in many cases, there will be more than one party responsible for the harm. For example, a person who sustained injuries due to incompetent treatment in a hospital may be able to pursue claims against not only the treating physicians but also against the hospital. As shown in a recent New York appellate court case, however, while a hospital may be held vicariously liable for the negligence of its employees, it is not always clear whether liability rests with a hospital or another entity. If you were injured by insufficient care in a hospital, it is prudent to consult a trusted Rochester hospital malpractice attorney to discuss what evidence you must produce to establish liability.

Factual Background

It is reported that the plaintiff treated at the defendant hospital while she was pregnant and subsequently filed a malpractice claim against the defendant hospital and the defendant obstetrics practice following the premature birth of her son. Specifically, the plaintiff alleged that the defendant hospital deviated from the standard of care by negligently performing a vaginal ultrasound despite the fact that the plaintiff had been diagnosed with placenta previa, and in failing to obtain the plaintiff’s informed consent prior to performing the ultrasound.

Additionally, the plaintiff alleged that the defendant’s negligence caused her placenta to hemorrhage, which caused her son to be born prematurely, and to suffer brain damage and significant developmental delays. The defendant filed a motion for summary judgment on all claims except for those premised on a theory of vicarious liability. The court granted the defendant’s motion, and the plaintiff appealed.

Court Discusses Burdens of Proof in a New York Cardiology Malpractice Case

Published on: October 29, 2019 | By DeFrancisco & Falgiatano

Summary judgment is a harsh remedy that is only to be used in the clearest cases. Thus, even if a defendant in a medical malpractice case establishes a prima facie right to judgment as a matter of law, the claims against the defendant will not be dismissed if the plaintiff establishes that there is a question of fact as to whether the defendant caused the plaintiff’s harm. A New York court recently analyzed what evidence is sufficient for each party to meet their burden of proof in a cardiology malpractice claim. If you or a loved one suffered harm due to negligent cardiac care, you should meet with a proficient Rochester cardiology malpractice attorney to discuss what evidence you must produce to establish liability.

Facts Concerning the Plaintiff’s Decedent’s Health

It is alleged that the plaintiff’s decedent died of a heart attack while he was at work. It was later revealed the heart attack was due to congestive heart failure, which was caused by hypertension and arteriosclerotic heart disease. Less than two weeks prior to the decedent’s death, he reportedly visited his primary care physician, who referred him to the defendant cardiologist due to abnormal lab results.

It is reported that the plaintiff filed a wrongful death and medical malpractice claim against the defendant, arguing the defendant failed to properly address the decedent’s abnormal test results and cardiac risk factors. After the completion of discovery, the defendant filed a motion for summary judgment.