Rochester Medical Malpractice and Personal Injury Lawyer Blog

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.

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.