Rochester Medical Malpractice and Personal Injury Lawyer Blog

Court Discusses Custom and Practice Evidence in New York Surgical Malpractice Cases

Published on: October 21, 2019 | By DeFrancisco & Falgiatano

In surgical malpractice cases, evidence regarding what actions the defendant surgeon took before, during, and after the surgery is often offered by the plaintiff to prove liability or by the defendant in support of the argument that there was no deviation from the standard of care. Typically, the defendant’s acts are established via records or either party’s recollection of events. Recently, a New York appellate court analyzed whether a defendant surgeon can testify regarding what he or she did during a procedure based on his or her habit rather than actual knowledge. If you were harmed by a surgical procedure, it is advisable to speak with a diligent Rochester surgical malpractice attorney regarding what damages you may be owed.

Factual Background of the Case

It is alleged that the plaintiff consulted the defendant for treatment of an incisional hernia. The defendant attempted a surgical repair of the hernia, during which he sutured a mesh patch to the plaintiff’s abdominal wall. The patch had two sides, one of which was rough and intended to be placed against the abdominal wall, and the other of which was smooth and meant to protect the internal organs.

Reportedly, following the surgery, the plaintiff developed severe pain. It was later determined that the patch had been inserted backward, and the rough side had adhered to the plaintiff’s internal organs. The plaintiff sued the defendant, arguing that he deviated from the accepted standard of care by improperly suturing the patch to her abdominal wall. Prior to trial, the plaintiff filed a motion to prohibit the defendant from testifying at trial regarding his custom and practice in performing hernia repairs. The court granted the motion, but the plaintiff was permitted to testify regarding his usual practices regardless. The jury found in favor of the defendant, and the plaintiff appealed.

New York Court Discusses Factors Evaluated in Granting a Motion to Substitute in a Hospital Malpractice Case

Published on: October 15, 2019 | By DeFrancisco & Falgiatano

It is not uncommon for a plaintiff who is pursuing damages due to medical malpractice to die following the institution of the lawsuit. Thus, in many cases, the need arises to substitute the administrator of the deceased plaintiff’s estate as a party in the lawsuit. Any substitution must be made in a timely manner, however, or the court may dismiss the claim in its entirety. In a recent hospital malpractice case, the appellate division of the Supreme Court of New York discussed the factors weighed in determining if an untimely motion to substitute should be granted. If you or someone you love suffered harm due to hospital malpractice, it is wise to consult a dedicated Rochester hospital malpractice attorney to discuss your potential claims.

Procedural Background of the Case

It is alleged that the plaintiffs, a mother and infant son, filed a malpractice lawsuit against the defendant hospital due to harm sustained by the plaintiff son. The plaintiff son subsequently died from his injuries, and the plaintiffs filed a motion to substitute the plaintiff son’s father, who was the administrator of the estate, as a plaintiff in place of the son, and to amend the caption. Further, the plaintiffs sought to amend the complaint to assert a wrongful death claim.

Reportedly, the defendants filed a motion to dismiss, arguing that the plaintiff’s motion to substitute was untimely. The court granted the defendant’s motion and dismissed the plaintiffs’ complaint in its entirety. The plaintiffs appealed.

New York Court Discusses Negligence Versus Medical Malpractice Claims Against Hospitals

Published on: October 8, 2019 | By DeFrancisco & Falgiatano

Hospitals, like doctors, are required to comply with a standard of care in treating patients. In many cases in which a hospital breaches the standard of care, a plaintiff will be able to assert both negligence and medical malpractice claims against the hospital. It is crucial for anyone who wishes to pursue a claim against a hospital to adequately plead any claim asserted, as an insufficient pleading can preclude the plaintiff from recovering damages. This was illustrated in a recent New York appellate court case, in which the court discussed what must be pleaded to establish general negligence versus medical negligence claims. If you or a loved one were injured due to inadequate care that was provided in a hospital, it is prudent to meet with a diligent Rochester hospital malpractice attorney regarding your right to seek damages.

Facts Regarding the Decedent’s Treatment

Reportedly, in August 2005, the plaintiff’s decedent was a patient at the defendant hospital, when he left his bed and began wandering the hallway in a confused state. He allegedly proceeded to hit members of the hospital staff, refused help, and subsequently suffered injuries. In August 2008, the plaintiff brought an action against the defendant hospital seeking damages due to the defendant’s negligence. The defendant filed a motion for summary judgment, arguing the claims were precluded by the two and a half year statute of limitations that applies to medical malpractice claims, as the claims alleged medical, rather than general, negligence. The court granted the defendant’s motion, and the plaintiff appealed.

General Negligence Versus Medical Malpractice Claims

In assessing whether a claim sounds in general negligence or medical malpractice, the court must assess the nature of the duty owed to the plaintiff that the defendant allegedly breached. If the duty arises out of the patient-physician relationship or is substantially related to the plaintiff’s treatment, a breach establishes a cause of action for medical malpractice, not general negligence. In other words, whether a defendant’s breach constitutes medical malpractice or general negligence depends on whether the defendant’s alleged conduct involves medical science or skills not possessed by laypeople, or whether the defendant’s acts or omissions can be evaluated by an ordinary person.

New York Court Discusses Prohibition of Public Statements in Medical Malpractice Cases

Published on: September 30, 2019 | By DeFrancisco & Falgiatano

In many instances in which a person has been harmed by medical malpractice, the harm occurs under circumstances that may be shocking to a layperson, causing anger and outrage. Thus, it is not uncommon for a defendant in a medical malpractice case to seek an order from the court prohibiting the parties from making statements to the public or media regarding the underlying facts of the case. Recently, a New York appellate court discussed the purpose of an injunction prohibiting public discussion of a case and when such an injunction is warranted, in a case in which the plaintiff alleged her husband’s death was caused by emergency room malpractice. If you suffered harm, or lost a loved one, due to malpractice committed by emergency room care providers it is advisable to speak with a capable Rochester emergency room malpractice attorney to discuss your case and your potential claims.

Factual Background

It is reported that the plaintiff’s decedent was shopping in a grocery store when he suffered a cardiac arrest. He was transported to the defendant hospital where he was taken to the code room of the emergency department and intubated. CPR, which the paramedics who transported the decedent had begun, was continued and a faint pulse was detected. The decedent was pronounced dead at 8:29 that evening. The plaintiff was notified of his death and she and other family members were taken into the code room.

It is alleged that the plaintiff observed the decedent breathing, making eye contact, and moving for the next two hours and forty minutes. Therefore, the plaintiff pleaded with the nursing staff and coroner to examine the decedent, which they declined to do. The decedent was eventually examined and found to be alive, after which he was transferred to another hospital. He underwent surgery but ultimately died. The plaintiff filed a medical malpractice claim against the defendant. The defendant subsequently filed a motion to enjoin all parties from making public comments or speaking to the media regarding the facts of the case. The court granted the motion and the plaintiff appealed.

Court Discusses Dismissal of New York Medical Malpractice Cases for Failure to Prosecute

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

In most medical malpractice cases, the injured parties will try to resolve the case as swiftly as possible, so that they can attempt to repair the harm they suffered and move forward in life. In some instances, however, the injured party will delay in proceeding with his or her case, resulting in protracted litigation. In a recent case ruled upon by an New York appellate court, the court analyzed when a plaintiff’s delay in prosecuting a medical malpractice case constitutes sufficient grounds for dismissal of the action. If you suffered injuries due to medical malpractice, it is prudent to meet with a skillful Rochester medical malpractice attorney as soon as possible to discuss your harm and whether you may be able to recoup damages.

Procedural Background

It is alleged that the plaintiff filed a medical malpractice case against the defendant hospital in August 2014. Subsequently, in December 2017, the defendant filed a motion to dismiss the complaint for failure to prosecute, pursuant to the New York rules of civil procedure. Additionally, the defendant argued that the action should be dismissed because the plaintiff had not narrowed his demands regarding the witnesses affiliated with the defendant hospital that he wanted to depose, despite court orders and stipulations directing him to do so. The court granted the defendant’s motion on both grounds, and the plaintiff appealed. On appeal, the court reversed and remitted the matter to the trial court for further proceedings.

Dismissal of a Complaint

Under New York law, the courts do not have authority to dismiss an action for failure to prosecute unless the plaintiff has been served with a 90-day notice. In the subject case, it was undisputed that neither the defendant nor the trial court served the required 90-day notice upon the plaintiff. As such, the trial court lacked authority to dismiss the plaintiff’s complaint for failure to prosecute.

New York Court Discusses Exceptions to the Rule Against Hearsay in Medical Malpractice Cases

Published on: September 20, 2019 | By DeFrancisco & Falgiatano

In medical malpractice cases, like all civil cases, hearsay testimony is inadmissible unless it falls under one of the enumerated exceptions. For example, under the business records exception to the hearsay rule, hospital records may be admissible in certain instances, despite the fact that they contain hearsay. Recently, a New York appellate court discussed when the business records exception to the rule against hearsay applies in hospital malpractice cases, in a case in which the plaintiff alleged her husband died as a result of malpractice. If you or a loved one suffered harm due to hospital malpractice, it is vital to retain a proficient Rochester hospital malpractice attorney to aid you in asserting your right to seek damages.

Facts Regarding the Plaintiff’s Husband’s Treatment

It is reported that the plaintiff’s husband went to the emergency room of the defendant hospital on June 1, 2008, where he was evaluated and diagnosed with pneumonia. The record states that the emergency room physician offered the husband hospitalization for intravenous antibiotics and fluids. The husband was discharged with oral antibiotics that day, however, and directed to follow up with his primary care physician. The physician testified at trial that he informed the husband his condition was serious and stated the husband left against medical advice, but the husband was not asked to sign an AMA form.

Allegedly, on June 4, 2009, the husband visited his primary care physician. Following an evaluation, the physician sent the husband to the hospital. In the second hospital, the emergency room records noted that the husband’s primary care physician stated that the husband signed an AMA form at the first hospital. Additionally, it stated that the husband advised the attending physician that he refused treatment at the first hospital and was subsequently discharged.

New York Court Discusses Medical Malpractice Claims on Behalf of an Incapacitated Person

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

In many cases in which a person is harmed by primary care malpractice, he or she may be unable to pursue a claim on his or her own behalf. In such instances, a guardian can be appointed to assert the injured party’s right to seek damages. In a recent primary care malpractice case decided by a New York appellate court, the court discussed the specifics of how claims on behalf of an incapacitated person may be pursued. If you or a loved one were injured due to inadequate care rendered by a primary care physician, it is essential to meet with a knowledgeable Rochester primary care malpractice attorney to discuss your injuries and what damages you may be able to recover.

Facts Regarding the Plaintiff’s Harm and Procedural Background

It is reported that the plaintiff patient underwent a colonoscopy in May 2014, after which he collapsed. He has been in a coma since the procedure. The plaintiff wife subsequently filed a medical malpractice action against numerous parties, including the plaintiff patient’s primary care physician. The plaintiff wife sued individually and as the proposed guardian of the plaintiff patient. It is alleged that the defendant primary care physician filed a motion to dismiss, arguing that the plaintiff wife lacked standing to act on behalf of the plaintiff patient. In turn, the plaintiff wife opposed the defendant’s motion and filed an unopposed motion to be appointed as the guardian of the plaintiff patient. The court denied the plaintiff’s motion and granted the defendant’s motion, after which the plaintiff appealed.

Primary Care Malpractice Claims Involving an Incapacitated Person

On appeal, the court stated that an incapacitated person who has not been declared incompetent can file a lawsuit or be sued, similar to any other person. Further, the court noted that under the New York Rules of Civil Procedure, a guardian can be appointed at any stage of litigation. In other words, a guardian need not be appointed prior to the commencement of an action.

Court Discusses Limitations of a Plaintiff’s Right to Amend a Complaint in New York Medical Malpractice Cases

Published on: September 6, 2019 | By DeFrancisco & Falgiatano

Many pregnant women treat with ob-gyns throughout their pregnancy, to monitor both their health and the health of their unborn child. As part of this care, ob-gyns routinely perform ultrasounds, to scan for abnormalities. In a recent case arising out of the death of a pregnant woman due to complications following a third-trimester abortion, the court analyzed whether a plaintiff should be granted leave to amend a complaint in response to the defendant’s motion for summary judgment. If you or a loved one suffered harm due to ob-gyn malpractice it is crucial to retain a Rochester ob-gyn malpractice attorney adept at helping injured parties seek compensation for their harm.

Factual and Procedural Background

It is reported that the plaintiff’s decedent visited the defendant ob-gyn for an ultrasound when she was 20 weeks pregnant. During the ultrasound, an anatomy scan was performed. The defendant determined the results of the scan were normal, but noted some asymmetry, and recommended a repeat scan. A second scan was performed eight weeks later, during which it was noted that the fetus had severe abnormalities. An MRI was subsequently conducted, after which it was noted that the fetus had a poor prognosis. The decedent then underwent counseling after which she elected to terminate her pregnancy.

Allegedly, a week after the MRI the decedent underwent a procedure to terminate the pregnancy, which took four days. The day after the decedent was discharged her condition deteriorated. She died the following day. Following an autopsy, it was determined that her cause of death was disseminated intravascular coagulation caused by an amniotic fluid embolus following the termination of her pregnancy.

New York Court Explains What Constitutes Sufficient Evidence to Obtain a Dismissal of an Orthopedic Malpractice Case

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

Medical malpractice cases are fact-intensive and require both parties to offer proof as to whether the facts are sufficient to establish a breach of the applicable standard of care. If the court finds that under the facts of the case the defendant cannot be held liable as a matter of law, it may dismiss the plaintiff’s claims. In a recent orthopedic malpractice case ruled on by the Appellate Division of the Supreme Court of New York, the court explained what constitutes sufficient evidence to obtain a dismissal. If you were harmed due to orthopedic malpractice it is critical to engage an assertive Rochester orthopedic malpractice attorney to assist you in your pursuit of damages.

Factual Background of the Case

It is reported that the plaintiff first treated with the defendant orthopedic surgeon on January 18, 2012, for an ankle injury. The plaintiff returned to the defendant’s office on January 20^th, at which time it was noted he had blisters on his ankle. At the second appointment, the defendant advised the plaintiff he was going on vacation but left the plaintiff his cell phone number so that the plaintiff could contact him if the symptoms worsened.

Allegedly, the plaintiff called the defendant within the next four days, advising he was in pain, had a fever, and had discolored blisters on his ankle. The plaintiff also sent the defendant a text message with a picture of his ankle, that showed the skin was blackening and had pus. On January 24^ththe plaintiff presented to the emergency department of a nearby hospital, where he was admitted to the intensive care unit. He was diagnosed with compartment syndrome and cellulitis and underwent emergency surgery. The plaintiff subsequently filed an orthopedic malpractice case against the defendant. The defendant filed a motion for summary judgment, which the trial court denied. The defendant appealed.

New York Court Discusses Standards for Dismissal of Surgical Malpractice Case Via Summary Judgment

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

Proving liability for surgical malpractice can be difficult and many New York surgical malpractice cases are dismissed prior to going to trial. In sum, if defendants can establish that there is no genuine issue of fact as to whether they deviated from the applicable standard of care, they can prove they cannot be held liable for surgical malpractice as a matter of law. Recently, an appellate division of the Supreme Court of New York discussed what constitutes sufficient evidence of an issue of fact to deny a defendant’s motion for dismissal of a surgical malpractice claim. If you were harmed due to an inappropriately performed surgery, it is crucial to engage a seasoned Rochester surgical malpractice attorney regarding your potential claims.

Facts and Procedure of the Case

It is alleged that the defendant surgeon performed a thyroidectomy on the plaintiff in 2005, and a total thyroidectomy on the plaintiff in 2010. The plaintiff reportedly suffered damage to her laryngeal nerve due to the surgeries. She subsequently brought a surgical malpractice claim against the defendant surgeon and the two defendant medical centers, alleging that the centers were liable for the defendant surgeon’s conduct.

The defendants filed motions for summary judgment, which were denied. The defendants appealed. On appeal, the court modified the order to dismiss the defendant medical centers but affirmed the trial court’s denial of the defendant surgeon’s motion for summary judgment.