Rochester Medical Malpractice and Personal Injury Lawyer Blog

Court Discusses Grounds for Granting an Extension to File a Complaint in a New York Hospital Malpractice Case

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

In any medical malpractice lawsuit, it is important to hire an attorney who is mindful of statutory filing obligations, as the failure to comply with deadlines can drastically impair a plaintiff’s right to recover damages. Recently, the Supreme Court of New York, Appellate division, discussed when it is appropriate to grant an extension in a hospital malpractice case, and when the case must be dismissed. If you sustained any injury or illness due to hospital malpractice it is vital to engage the services of a skilled Rochester hospital malpractice attorney to help you develop persuasive arguments in favor of your recovery.

Factual and Procedural Background

It is reported that the plaintiff, who was not represented by an attorney, filed an amended summons of notice on December 23, 2016. Approximately three and a half months later, on April 18, 2017, the defendants, three hospitals that provided treatment to plaintiff and one physician, filed a demand for a complaint. Subsequently, on May 25, 2016, the defendants moved to dismiss the action pursuant to CPLR 3012(b), due to the plaintiff’s failure to file the complaint in a timely manner.

Allegedly, the plaintiff opposed the motion, and filed her complaint on June 26, 2017, alleging claims of medical malpractice against the defendants. The court denied the defendants’ motion to dismiss, and on its own accord granted the plaintiff an extension of time to serve the complaint. The court also ordered the defendants to accept the complaint. The defendants appealed.

New York Court Analyzes Sufficiency of Evidence in a Case Alleging Malpractice Due to Failure to Diagnose

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

In New York, in any case alleging medical malpractice, the burden of proof moves from the plaintiff to the defendant and then back to the plaintiff. Thus, if the defendant sets forth an expert affidavit refuting the allegations in the plaintiff’s bill of particulars, the plaintiff can only avoid a dismissal of the case by presenting his or her own affidavit stating the manner in which the defendant’s treatment constituted malpractice. In a recent case in which the plaintiff alleged the defendant failed to diagnose her promptly, the appellate division of the Supreme Court of New York discussed what evidence a plaintiff must produce to refute a defendant’s expert affidavit. If you sustained damages due to your doctor’s failure to diagnose you, you should meet with a trusted Rochester failure to diagnose malpractice attorney to discuss what evidence you need to hold your doctor accountable for your damages.

Facts of the Case

It is reported that the plaintiff alleged that the defendant failed to diagnose or treat her pneumonia, despite her symptoms, which caused her condition to worsen. She subsequently sued the defendant for medical malpractice. Following the completion of discovery, the defendant moved for summary judgment. The court granted the defendant’s motion, dismissing the case.

Sufficiency of Evidence

To set forth a prima facie case of liability in a medical malpractice case the plaintiff must show that the defendant breached the applicable standard of care and the breach caused the plaintiff’s injury. Then, the burden shifts to the defendant, who must prove that there was no departure from the standard of care or that any departure did not cause the plaintiff’s harm, which defendants typically do by setting forth an expert affidavit. The plaintiff will usually set forth its own expert report to refute the defendant’s proof. While conflicting expert opinions offered by the defendant and plaintiff may present issues of fact that must be resolved by a jury, expert opinions that are speculative or not supported by the evidence of record will not create a triable issue.

Court Discusses Shifting Burden of Proof in NY Hospital Malpractice Case

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

In any case alleging hospital malpractice, the burden of proof as to whether the defendant deviated from the standard of care and thereby caused the plaintiff harm shifts from the plaintiff to the defendant and then back to the plaintiff. Recently, a New York appellate court discussed the evidence each party must produce at each step of a hospital malpractice lawsuit, in a case in which the court ultimately held that the plaintiff’s complaint was wrongfully dismissed. If you or a loved one were injured by hospital malpractice it is critical to retain a skilled Rochester hospital malpractice attorney to assist you in proving that the hospital that caused your harm should be held accountable for your damages.

Facts of the Case

It is alleged that the plaintiff’s decedent underwent a surgical procedure in 2009, in which an arteriovenous fistula was created in the decedent’s left arm to be used as an access site for dialysis treatments. Approximately one year later, a nurse noticed that the fistula appeared infected during a dialysis treatment, and the attending nephrologist directed that the decedent be transferred to the defendant hospital’s emergency room for evaluation. The decedent was evaluated by a doctor at the defendant hospital and released and cleared for dialysis. Subsequently, the decedent underwent two additional dialysis treatments without incident.

Court Discusses Privilege Protecting Quality Assurance Review Meetings in New York Obstetric Malpractice Case

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

Generally, a party alleging obstetric malpractice is entitled to the disclosure of any facts and information that is necessary and material to pursue a lawsuit. While the policy typically favors liberal discovery, there are some privileges that provide exceptions to the general rule. For example, Education Law § 6537(3) protects certain information produced by a hospital performing a medical malpractice or quality assurance review. Recently, a New York appellate court analyzed the discrete issue of whether a defendant in an obstetric malpractice lawsuit can be compelled to testify regarding statements made by another defendant in a meeting protected by § 6537(3). If your child suffered injuries at birth because of insufficient obstetric care, it is essential to engage a seasoned Rochester obstetric malpractice attorney regarding the care that led to your child’s harm and what evidence you may be able to obtain to support your claim.

Testimony Regarding the Plaintiff’s Care

It is alleged that the plaintiff mother was admitted to the defendant hospital for induction of labor. The plaintiff infant was delivered via an emergency cesarean section later the same day. The plaintiffs allege that due to obstetric malpractice during the course of labor and delivery the plaintiff infant suffered permanent and severe injuries, including brain damage. The plaintiffs brought an obstetric malpractice lawsuit against the defendant nurse, defendant doctor, and defendant hospital.

Reportedly, during the deposition of the defendant nurse, the plaintiffs’ attorney questioned the defendant nurse regarding what the defendant doctor stated during the subsequent quality assurance meeting to review the events that transpired during the plaintiff infant’s birth. The defendants’ attorney objected to the question on the grounds that the information was protected by Education Law § 6537(3). The plaintiffs then filed a motion to compel the defendant nurse to testify regarding the meeting.
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New York Court Discusses Proof Needed to Establish a Doctor-Patient Relationship

Published on: May 23, 2019 | By DeFrancisco & Falgiatano

There are several elements a person harmed by medical malpractice must prove to recover damages from the care provider that caused his or her harm. First, and perhaps most importantly, the injured party must show that he or she was a patient of the doctor that rendered the inadequate care. While in most cases it is easy to establish a doctor-patient relationship, in some cases, it is not immediately clear whether a doctor-patient relationship exists. The Supreme Court of New York recently analyzed whether a plaintiff sufficiently established a doctor-patient relationship in a case where the defendant doctor owned the orthopedic practice where the plaintiff was treated but did not provide direct care to the plaintiff. If you or a loved one suffered harm due to inadequate orthopedic care you should meet with a trusted Rochester orthopedic malpractice attorney regarding what damages, you may be able to recover from the parties that caused your harm.

Facts Regarding the Plaintiff’s Treatment

It is alleged that the minor plaintiff fell off of his bicycle and broke his left arm in June 2015. The plaintiff’s mother took him to the emergency room of a nearby hospital following his fall. The hospital staff did not place a cast on the plaintiff’s arm but provided him with a sling and directed his mother to take him to an orthopedic specialist as soon as possible. On July 1, 2015, the plaintiff’s mother took the plaintiff to the defendant orthopedic practice which was owned by the defendant doctor.

New York Court Discusses Medical Malpractice Cases Involving Multiple Defendants

Published on: May 22, 2019 | By DeFrancisco & Falgiatano

It is not uncommon for a plaintiff in a medical malpractice case to allege that both the doctor that provided his or her treatment and the hospital where the treatment was rendered are liable for any harm caused by the treatment. There are numerous factual disputes that can arise in any medical malpractice case, and cases with more than one defendant are typically more complicated than cases with a single defendant. Recently, a New York appellate court discussed the standards for precluded summary judgment in a medical malpractice case involving multiple defendants. If you sustained injuries due to the medical malpractice of a doctor and hospital you should speak with a skilled Rochester hospital malpractice attorney to discuss your case and what evidence you may need to hold both the doctor who treated you and the hospital in which you were treated liable for your harm.

Facts Regarding the Decedent’s Harm

Reportedly, the plaintiff’s decedent was injured in a car accident, after which he was transported to a hospital. He was then discharged to the defendant medical center for rehabilitation. The decedent ultimately died from deep venous thrombosis and a pulmonary embolism. Following his death, the plaintiff sued the defendant medical center, alleging its negligence caused the decedent’s death.

It is alleged that the defendant medical center subsequently filed a third-party complaint against the defendant hospital who contracted with the medical center to provide doctors to administer care and the defendant doctor who treated the decedent while he was at the defendant medical center. The defendant doctor and defendant hospital filed motions for summary judgment, which the trial court granted. The plaintiff and defendant medical center subsequently appealed.
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Court Discusses Purpose of Bill of Particulars in New York Oncology Malpractice Case

Published on: May 14, 2019 | By DeFrancisco & Falgiatano

When a patient has a complex disease such as cancer, he or she will typically treat with more than one medical care provider. Thus, in lawsuits arising out of oncology malpractice, several physicians may be named as defendants responsible for the injured party’s harm. Regardless of how many defendants are named in an oncology malpractice case, however, the plaintiff is required to specify the nature of the malpractice committed by each defendant, and the failure to do so can adversely affect the plaintiff’s case. This was illustrated in a recent New York oncology malpractice case, where the court held that the plaintiff’s bills of particulars lacked the specificity required to attribute negligence to each defendant. If you suffered harm or the loss of a loved one due to oncology malpractice it is critical to engage a capable Rochester oncology malpractice attorney with the skills and experience required to help you set forth the evidence needed to prove your claim.

Facts Regarding the Care Provided by the Defendants

It is reported that plaintiff’s decedent was diagnosed with colon cancer and became a patient of the defendant care facility and the defendant oncologist. The decedent was prescribed an intravenous chemotherapy treatment that included several different drugs. Prior to beginning the treatment, the decedent was advised that she could not have the treatment if she had a particular gene mutation, because it would cause a toxic buildup of one of the drugs in the treatment. The decedent did not know whether she had the gene mutation and was not advised there was a test available to test for the mutation.

Allegedly, the decedent began the treatment, after which she began to experience adverse side effects. She was admitted to the defendant hospital where she was treated for thirteen days. The decedent ultimately died due to drug toxicity from her treatment. The plaintiff, the administrator of the decedent’s estate, filed a medical malpractice lawsuit against the defendant hospital, two care facilities, and twelve doctors. The plaintiff subsequently served each defendant with a bill of particulars, after which the defendants moved the court to strike certain portions of the bills of particulars and to preclude the plaintiff from introducing evidence related to the bills, due to the bills’ the lack of specificity. The court granted the orders, after which the plaintiff appealed.
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Court Discusses Sufficiency of Expert Affirmation in New York Podiatry Malpractice Case

Published on: May 4, 2019 | By DeFrancisco & Falgiatano

When people think of a malpractice case, they often think of cases involving high-risk procedures, but malpractice can and does occur in any practice area, including seemingly low-risk areas such as podiatry. Regardless of the nature of the underlying treatment, if a doctor’s care causes harm it is essential to set forth the allegations and evidence needed to prove the doctor should be held liable, otherwise you may lose the right to recover. The grave consequences of the failure to offer an adequate expert report were illustrated in a recent New York appellate court case, in which the court dismissed the plaintiff’s podiatry malpractice case due to the insufficiency of her expert report. If you sustained injuries due to negligent podiatric care, it is vital to engage a skillful Rochester podiatry malpractice attorney to help you seek compensation.

The Plaintiff’s Medical Treatment

Reportedly, the plaintiff treated with the defendant podiatrist on one occasion. During the visit, the defendant podiatrist diagnosed the plaintiff with a hammertoe and a corn on the second toe of the left foot and performed an aseptic debridement of the corn to alleviate pain. The defendant podiatrist did not prescribe the plaintiff any medication and did not provide the plaintiff with any other treatment. The plaintiff continued to treat with the defendant independent contractor, however, who worked for the defendant podiatrist.

It is alleged that five months after her debridement the plaintiff presented to the defendant independent contractor with signs of infection. She was referred to the hospital for the infection but left against medical advice. One week later the plaintiff returned to the hospital, where she underwent a partial amputation of the second left toe. The plaintiff subsequently filed a medical malpractice lawsuit against the defendants. The defendant podiatrist filed a motion for summary judgment, which the court dismissed, after which the defendant appealed.
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New York Court Discusses the Law of the Case Doctrine in a Medical Malpractice Case

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

In any Rochester medical malpractice case, there will likely be motions presented by either party, which the court will hear and rule upon. When the court issues a ruling on a contested matter it defines the law of the case, and absent new evidence, all parties must abide by the ruling. This rule, which is known as the law of the case doctrine, was recently discussed by a New York appellate court in a medical malpractice case in which the plaintiff sought to strike the defendant’s answer due to spoliation of evidence, despite a previous ruling on the issue. If you or a loved one suffered harm due to negligent care provided by a doctor it is essential to retain a skilled Rochester medical malpractice attorney to help you seek compensation.

Procedural Facts

Reportedly, the plaintiff, as the administrator of the decedent’s estate, filed a lawsuit against the defendant in 2014, alleging claims of medical malpractice and wrongful death arising out of the decedent’s death in 2012. The case proceeded to trial and when the jury was being selected, the plaintiff orally moved to strike the defendant’s answer and new matter and for judgment as a matter of law on the issue of liability. The basis for the plaintiff’s motion was the defendant’s purported spoliation of evidence relating to the telemetry strips used to monitor the decedent, and the failure to perform an autopsy on the decedent. The defendant opposed the motion, arguing in part that the trial court had previously denied a motion filed by the plaintiff which sought to strike the defendant’s answer due to spoliation of evidence. The court granted the plaintiff’s motion in spite of the defendant’s objection, and the defendant subsequently appealed.

Law of the Case Doctrine

First, the appellate court noted that a motion for judgment as a matter of law is premature if it is made prior to the close of the opposing party’s case. Thus, the appellate court found that the trial court erred in granting the motion. Further, the appellate court held that the trial court violated the law of the case doctrine in granting the plaintiff’s motion. The law of the case doctrine is a rule of practice, which articulates the policy that once an issue is ruled upon by a judge, it should be the end of the debate on that particular matter. Under the law of the case doctrine, an issue that has been ruled upon is foreclosed from further consideration, unless new evidence is discovered or there is a change in the law. In the subject case, the appellate court ruled that the trial court erred in ignoring the prior order regarding the spoliation issue. Thus, the appellate court reinstated the defendant’s answer.

New York Court Discusses Res Ipsa Loquitor in a Gynecologic Malpractice Case

Published on: April 18, 2019 | By DeFrancisco & Falgiatano

As gynecologic malpractice cases involve complex facts and issues that are typically beyond the understanding of the average person, most medical malpractice cases rely on experts to prove liability. In some cases, however, gynecologic malpractice is so clear that expert opinions may not be necessary. Rather, the plaintiff will rely on the evidentiary rule of res ipsa loquitor, which means the thing speaks for itself. A New York court recently discussed res ipsa loquitor in a gynecologic malpractice case and explained what is needed to prove the defendant is liable under res ipsa loquitor. If you were harmed by gynecologic malpractice you should consult an experienced Rochester gynecologic malpractice attorney as soon as possible to discuss your case and what evidence you may need to recover.

Factual Scenario

Reportedly, the plaintiff underwent a hysterectomy, which was performed by the defendants. Approximately five months after the surgery, she underwent an MRI that revealed a cystic collection in her abdomen. She then underwent a procedure to drain the collection, which revealed that it was likely there was a surgical lap pad in her abdomen. As such, the plaintiff underwent surgery to remove the lap pad that was likely left behind during her initial surgery. The plaintiff subsequently filed a medical malpractice action alleging the facts required the application of Res Ipsa Loquitor

Res Ipsa Loquitor

Res ipsa loquitor is an evidentiary rule that allows the judge or jury to infer negligence based solely on the occurrence of an unusual event. Res ipsa loquitor arises often in medical malpractice cases where it is hard to prove causation. For res ipsa loquitor to apply the plaintiff must show that what happened is not an event that typically happens without negligence, the instrumentality that caused the harm was exclusively controlled by the defendant, and the plaintiff did not contribute to his or her own harm.