Rochester Medical Malpractice and Personal Injury Lawyer Blog

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.

Court Highlights the Need to Comply with Procedural Requirements in New York Medical Malpractice Cases

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

Plaintiffs seeking damages in New York medical malpractice lawsuits are subject to a high burden of proof, and in many cases, the defendant health care providers are able to successfully argue that the plaintiff has not met his or her burden of proof and obtain a dismissal via summary judgment prior to trial. Regardless of the sufficiency of either party’s case, however, they must comply with the New York rules of civil procedure and the failure to abide by those rules can affect the outcome of the case. This was demonstrated in a recent orthopedic malpractice case in which the court denied the defendants’ motions for summary judgment as untimely. If you suffered an injury or illness because of orthopedic malpractice it is imperative to meet with a skilled Rochester orthopedic malpractice attorney as soon as possible to discuss your case.

Facts of the Case and Procedural Background

It is alleged that the plaintiff underwent arthroscopic surgery on her left knee, which was performed by the defendant orthopedic surgeon. She developed an infection and eight days after her surgery and presented to the emergency room of the defendant hospital. She underwent irrigation and debridement and was referred to an infectious disease specialist, who managed the infection with antibiotics and observation. The plaintiff subsequently developed acute renal failure due to the antibiotic she was prescribed.

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant orthopedist and defendant hospital, arguing that their negligent care ultimately caused her to sustain renal failure. Per the rules of the judge assigned to the case, the deadline for either party to file a motion for summary judgment was February 14, 2017. The defendants did not file a motion for summary judgment until March 29, 2017, however, at which time they also filed a motion to extend the deadline for filing the motion. The court dismissed both motions as untimely and the defendants appealed.

New York Court Discusses Duty of Care Owed by Hospitals in Screening for Cancer

Published on: August 13, 2019 | By DeFrancisco & Falgiatano

When people are diagnosed with cancer, they rely on hospitals and oncologists to provide appropriate care and treatment. If an oncologist advises a person that the person’s cancer is in remission, the person will generally take this to mean that they no longer have cancer. Recently, a New York appellate court addressed the issue of whether a hospital can be held liable for advising a patient that he is cancer free following treatment for prostate cancer, when the patient is suffering from colon cancer that has not yet been diagnosed. If you suffered harm due to an oncologist’s failure to appropriately diagnose or treat your cancer, you should speak with a knowledgeable Rochester oncology malpractice attorney regarding your injuries and your potential claims.

Factual Background

Allegedly, in October 2004, the plaintiff’s decedent was diagnosed with prostate cancer at the first defendant hospital. An MRI and bone scan showed that the cancer was not metastatic. He sought a second opinion, and ultimately began treating with the defendant oncologist at the second defendant hospital. In July 2005, the defendant oncologist advised the plaintiff’s decedent that he was biochemically and clinically free of any evidence of the disease. In November 2005, however, the plaintiff’s decedent visited his urologist with complaints of rectal bleeding. He tested positive for blood in his stool and was referred to a gastroenterologist. The plaintiff’s decedent was ultimately diagnosed with metastatic colon cancer. He underwent treatment, including surgery, chemotherapy, and radiation, but lost his battle with cancer in June 2007.

It is reported that before his death, the plaintiff’s decedent filed an oncology malpractice lawsuit against the defendant hospitals and defendant oncologist, which was converted to a wrongful death case following the plaintiff’s decedent’s death. The defendant hospitals filed motions for summary judgment, asking the court to dismiss the claims against them. The court granted the motions, and the plaintiff appealed.

New York Court Explains Sufficiency of Evidence to Dismiss a Plaintiff’s Surgical Malpractice Case

Published on: August 2, 2019 | By DeFrancisco & Falgiatano

In a New York surgical malpractice case, the defendant surgeon can avoid liability if he or she can prove that he or she did not depart from the standard of care, or that any departure did not cause the alleged harm. The defendant surgeon must provide clear and sufficient evidence in support of his or her defense, however, otherwise the injured party will be permitted to pursue his or her claim against the defendant surgeon. In a recent New York appellate case, the court explained what constitutes sufficient evidence to deny a defendant surgeon’s motion to dismiss a plaintiff’s claim. If you sustained harm because of a surgeon’s negligence you should meet with a zealous Rochester surgical malpractice attorney to discuss your harm and what damages you may be able to recover.

Facts Regarding the Plaintiff’s Treatment

Allegedly, in 2015 the plaintiff visited the defendant surgeon, to undergo an elective cosmetic procedure that involved transferring fat to areas of the plaintiff’s face. One of the known risks of the procedure was blindness, caused by fat entering a blood vessel and migrating to the eyes. When the plaintiff awoke from her anesthesia following the procedure, she experienced pain in her left eye and diminished vision. She was transported to an ophthalmologist, who noted there was fat in the vessels of her retina. The following day, the plaintiff visited a neuro-ophthalmologist, who diagnosed her with a loss of vision due to a central retinal artery occlusion secondary to a fat embolism.

It is reported that the plaintiff then filed a medical malpractice lawsuit against the defendant, alleging that his negligence in performing the procedure caused her to suffer the permanent loss of vision in her left eye. Specifically, the plaintiff alleged that the defendant failed to properly aspirate during the fat administration. The defendant filed a motion for summary judgment, arguing he was prima facie entitled to judgment in his favor as a matter of law. The court denied the defendant’s motion, and he appealed.

Court Discusses Sufficiency of Expert Affidavits in New York Medical Malpractice Claims

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

In New York summary judgment motions in medical malpractice cases, the burden shifts from the plaintiff to the defendant and then back to the plaintiff with regards to whether the defendant should be held liable for medical malpractice. Generally, a defendant must produce an expert affidavit to support the argument that he or she did not deviate from the applicable standard of care and therefore did not commit medical malpractice. In a recent surgical malpractice case, a New York appellate court discussed whether a defendant may submit his or her own affidavit to meet the burden of establishing he or she should not be held liable. If you were injured by surgical malpractice it is essential to engage a proficient Rochester surgical malpractice attorney to assist you in pursuing any damages you may be owed.

Facts Regarding the Plaintiff’s Treatment

Allegedly, the plaintiff underwent a bilateral reduction mammoplasty, which was performed by the defendant surgeon. She subsequently suffered serious and permanent injuries, which she alleged was caused by negligent care during and after her surgery. As such, she filed a surgical malpractice lawsuit against the defendant. The defendant filed a motion for summary judgment, attaching his own affidavit in support of the contention that he was entitled to judgment in his favor as a matter of law. The trial court granted his motion, and the plaintiff appealed.

Sufficiency of Expert Affidavit

To establish a prima facie entitlement to summary judgment, a defendant in a surgical malpractice case must provide factual proof that he or she complied with the appropriate standard of care, in rebuttal to the plaintiff’s malpractice claims. Factual proof can consist of deposition testimony, medical records, and affidavits. A defendant can submit his or her own affidavit to meet the burden of proof, but the affidavit must be specific, detailed, and factual in nature. Further, it must address each of the specific factual allegations raised by the plaintiff in his or her bill of particulars. Continue Reading ›