Rochester Medical Malpractice and Personal Injury Lawyer Blog

New York Court Discusses Grounds for Granting Reargument on a Motion for Summary in Failure to Diagnose Case

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

Patients rely on doctors to provide adequate care, which includes properly diagnosing any injury or illness. If a doctor fails to diagnose a medical issue in a timely manner it can result in significant harm or even death and may be grounds for a medical malpractice action. In weighing whether you have sufficiently proven your treating physician’s failure to diagnose constitutes malpractice the court will assess the evidence produced by you and your physician. If the court negligently overlooks evidence of malpractice, such as an expert affidavit, it can result in an improper dismissal of your claim, as illustrated in a recent case decided by a New York appellate court. If you or a loved one suffered harm due to a doctor’s failure to provide an accurate diagnosis, you should meet with a seasoned Rochester medical malpractice lawyer regarding the facts of your case and what you need to prove to recover damages.

Facts Regarding the Plaintiff’s Treatment

Reportedly, the plaintiff’s decedent underwent a gastric bypass, after which she treated with the defendant gastroenterologist at the defendant gastroenterology practice. She died shortly thereafter from a gastrointestinal hemorrhage. The plaintiff then filed a malpractice lawsuit against the defendant, alleging that the defendant failed to properly diagnose and treat the decedent with an anastomotic leak, resulting in her death. Following discovery, the defendants moved for summary judgment, which the court granted as to the defendant practice. The plaintiff filed a motion for reargument which the court granted. Upon reargument, the court vacated the order granting summary judgment, after which the defendant appealed.

Conflicting Expert Reports

Under New York law, whether to grant a motion for reargument is within the discretion of the court that decided the original motion. A court may choose to grant reargument where a party produces evidence the court overlooked or misunderstood pertinent facts and mistakenly decided the prior ruling. In the subject case, the court found that the trial court properly chose to grant reargument due to the fact it had previously overlooked an expert affidavit that the plaintiff submitted in support of his opposition to the motion for summary judgment, and therefore, incorrectly ruled the plaintiff failed to raise an issue of fact.

New York Court Discusses Standard for Granting Judgment as a Matter of Law in Medical Malpractice Cases

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

In cases involving obstetric malpractice, a plaintiff will typically exercise her right to a trial by jury. A jury trial allows a panel of the plaintiff’s peers, rather than a judge, to assess whether the defendant caused the plaintiff to suffer harm and if so, what damages the plaintiff should be awarded for the harm she suffered. While in many obstetric malpractice lawsuits trying a case in front of a jury results in an appropriate award of damages for the injured parties, that is not always the case. The law provides a remedy for verdicts that are clearly against the weight of the evidence, however, as illustrated in a recent New York case in which the court reversed the ruling where a jury failed to award damages despite finding the defendant obstetrician liable. If you or your child suffered harm due to obstetric errors, you should speak with a capable Rochester obstetric malpractice attorney in a timely manner to discuss your case and what compensation you may be able to recover.

The Plaintiff’s Treatment

Allegedly, the plaintiff fell when she was 37 weeks pregnant. She presented to the hospital that day, where she was treated by the defendant obstetrician. The defendant performed a sonogram and electronic fetal monitoring, which were normal. His notes indicated concerns regarding a delayed placental abruption, however, and he advised the plaintiff to follow up with her obstetrician. Two days later the plaintiff presented to the office of her regular doctor, the defendant obstetrician-gynecologist for monitoring.

Reportedly, the following day she experienced contractions and vomiting. She returned to the defendant’s office three days later and reported she was suffering abdominal pain. The defendant did not perform fetal monitoring. Two days later the plaintiff underwent an emergency cesarean section. The plaintiff’s child was extremely anemic at the time of her birth and suffered from cerebral palsy. She was unable to walk, use her arms, or feed herself and required constant care.
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New York Court Clarifies Statute of Limitations for Lack of Informed Consent Claims

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

All civil claims have a statute of limitations under which the injured party must pursue his or her claim. The statute of limitations for your claim depends on the nature of the harm alleged. In cases involving surgical malpractice, if the plaintiff sets forth claims of both intentional tort and negligence, different statutes of limitations may apply to each claim. This was discussed by a New York district court, in a recent case in which the plaintiff alleged both negligence and an intentional tort following her surgeon’s alleged failure to obtain informed consent. If you were harmed due to your doctor’s failure to provide you with informed consent prior to your surgical procedure you should consult an experienced Rochester surgical malpractice attorney as soon as possible to prevent the waiver of your right to recover.

Reportedly, the plaintiff underwent multiple plastic surgery procedures that were performed by the defendant. Following the procedures, the plaintiff filed a pro se lawsuit against the defendant surgeon, alleging claims of negligence and intentional tort due to her surgeon’s failure to obtain informed consent. Specifically, she alleged the defendant used tools on her face when she requested that he not do so, and injected fat in areas of her body without her consent.

The defendant filed a motion to dismiss, arguing that the plaintiff’s claims were barred by the statute of limitations. The motion was referred to another judge, who recommended that the motion be denied. The defendant filed objections to the recommendations. Specifically, the defendant objected to the finding that the plaintiff set forth a negligence claim based on the lack of informed consent. Rather, the defendant argued that the plaintiff only asserted a claim for intentional tort in the manner of assault and battery, which had a one-year statute of limitations.

Court Discusses Grounds for Dismissing New York Medical Malpractice Cases

Published on: March 25, 2019 | By DeFrancisco & Falgiatano

In many medical malpractice cases, there is more than one medical care provider that may be liable for causing the plaintiff harm. Unfortunately, in some cases, the court will dismiss a person’s medical malpractice case in its entirety if the defendant physicians offer sufficient proof that they did not deviate from the applicable standard of care.

As shown in a recent New York case in which the plaintiff alleged gynecologic medical malpractice against multiple doctors, the court will not dismiss the injured party’s claim against all of the defendants unless each defendant rebuts any specific allegations of malpractice that were set forth by the injured party. If you or a loved one were harmed due to gynecologic medical malpractice, it is in your best interest to speak with a trusted Rochester medical malpractice attorney to discuss the facts of your case and your options for seeking damages.

The Plaintiff’s Treatment

Reportedly, the plaintiff treated with the defendants, an obstetrician/gynecologist, and a perinatologist, throughout her high-risk pregnancy. It was noted throughout the plaintiff’s pregnancy by the defendant obstetrician/gynecologist that she had a low lying placenta. At the end of her pregnancy, the plaintiff underwent a procedure that was performed by the defendant obstetrician/gynecologist that was meant to induce labor but caused the plaintiff to hemorrhage.

Court Rejects Agreement Limiting the Right to Pursue a Medical Malpractice Claim in a New York Case

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

People enter into contracts every day, including contracts promising not to sue in the event of harm. While a contract that is entered into voluntarily will typically be upheld by the court if a contract violates public policy it may be deemed unenforceable. This was illustrated in a recent case decided by a New York court, in which the court found that a contract that purported to govern a patient’s right to pursue a medical malpractice claim was void. If you were harmed by negligent medical care and wish to seek compensation from your care provider, you should meet with a capable Rochester medical malpractice attorney to discuss the facts of your case.

The Agreement Between the Parties

Allegedly, the defendant performed a laparoscopic hysterectomy on the plaintiff. During the surgery, the defendant pierced the plaintiff’s small intestine, resulting in severe and life-threatening complications. The plaintiff subsequently filed a medical malpractice lawsuit against the defendant. Prior to the surgery, the parties signed a contract referred to as Agreement as to Resolution of Concerns that was intended to limit the plaintiff’s right to pursue a medical malpractice claim against the defendant. To the extent the agreement permitted the plaintiff to file a malpractice lawsuit it affected how the lawsuit was to be handled. Specifically, the agreement prohibited the plaintiff from bringing a claim that was deemed meritless or frivolous based on the determination of a certain group, and if a claim was brought, limited the plaintiff’s use of experts. Following the filing of the lawsuit, the plaintiff filed a motion to have the agreement deemed unenforceable, arguing that it was unconscionable and contravened public policy.

Violation of Public Policy

The court noted that the public policy implications of an agreement between a doctor and a patient that limited the patient’s right to pursue a malpractice claim was an issue of first impression. The court notes that while parties are free to stipulate to a waiver of rights, an agreement that is clear an unambiguous will nonetheless be found invalid if it violates public policy by conflicting with an overriding public interest. To determine whether an agreement conflicts with a public interest the court will look at multiple factors, including legislative intent.

New York Court Affirms Verdict for Defendant in a Medical Malpractice Case Following a Failure to Diagnose

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

In many cases in which a plaintiff alleges he or she suffered harm due to a delayed diagnosis, whether a defendant is found liable for medical malpractice hinges on the testimony of each party’s expert witness. In most cases, a court will not disturb a jury’s verdict, unless the evidence is overwhelmingly in one party’s favor.

Recently, a court in the appellate division of the Supreme Court of New York affirmed a jury verdict in favor of the defendants, finding the evidence presented at trial was not clearly in favor of the plaintiff. If you suffered harm due to a failure to diagnose your injury or illness in a timely manner, you should consult a seasoned Rochester medical malpractice attorney regarding your options for pursuing compensation.

Facts Regarding the Plaintiff’s Care

Reportedly, the plaintiff fell, hit his head and lost consciousness on December 22, 2013. He visited his primary care doctor on December 26, 2014, and February 3, 2014, and was treated by a nurse practitioner. Then, a month and a half after his fall, the plaintiff went to the emergency department where he reported a continuing headache and double vision since his fall. He underwent diagnostic imaging which revealed a subdural hematoma. The plaintiff had surgery to remedy the hematoma. The surgery was a success, but the plaintiff suffered brain damage that was permanent.

New York Court Discusses Factors Permitting Late Notice of a Medical Malpractice Claim Against a Public Corporation

Published on: March 11, 2019 | By DeFrancisco & Falgiatano

The statute of limitations for pursuing a medical malpractice claim in New York is two years and six months from the date of harm. In cases where the medical care provider is a public corporation, however, different notice requirements apply.

The appellate division of the Supreme Court of New York recently discussed the circumstances in which a plaintiff will be permitted to file late notice of a claim against a public corporation. If you suffered injuries or an illness because of inadequate medical care, you should speak with a proficient Rochester medical malpractice attorney to discuss the circumstances surrounding your harm and your options for pursuing compensation.

Procedural Background

It is reported that the plaintiff filed a petition for leave to file a late notice of a claim averring medical malpractice against the defendant, a public corporation. The trial court denied the petition and the plaintiff appealed. On appeal, the trial court ruling was affirmed.

New York Court Finds No Error In Verdict Sheet in Medical Malpractice Case

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

In a medical malpractice case, it is essential to set forth every manner in which malpractice was allegedly committed, and present evidence of the malpractice in a clear manner at trial. A plaintiff’s failure to provide sufficiently present evidence of malpractice can result in verdict sheets that do not adequately address the alleged malpractice and a verdict in favor of the defendant.

A New York appellate court recently affirmed a jury’s verdict in favor of the defendant, finding that the court did not err in adding questions to the verdict sheet regarding the alleged malpractice, due to the fact that the evidence presented only indicated malpractice in one aspect of care. If you sustained harm due to insufficient care or testing, it is important to retain a skillfulRochester medical malpractice attorney who will work diligently to help you pursue damages for your harm.

The Plaintiff’s Surgery

Reportedly, the plaintiff underwent surgical resection of his colon, which was performed by the defendant. During the surgery, the defendant performed anastomosis, which is a procedure in which a damaged portion of the colon is removed and the healthy portions are reconnected. The plaintiff subsequently developed a leak at the site of the anastomosis and suffered sepsis, peritonitis and renal failure due to the leak. He filed a medical malpractice action against the defendant. Following a trial, a jury issued a verdict in favor of the defendant, after which the plaintiff appealed.

New York Court Discusses Proof Needed to Show Deviation from Standard of Care

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

The quality of testimony provided by an expert can make or break a plaintiff’s medical malpractice case. An expert must show not only that he or she is qualified to offer an opinion regarding the alleged malpractice in the particular specialty in which the defendant practices, he or she must also offer an opinion sufficient to show the manner in which the defendant deviated from the standard of care. If an expert fails to meet these requirements, it can be fatal to a plaintiff’s case.

This was illustrated in a recent case decided by the appellate division of the Supreme Court of New York, where the court held that the plaintiff’s expert’s report was insufficient to show there was an issue of fact as to whether the defendant failed to meet the standard of care. If you suffered harm due to medical malpractice, it is in your best interest to consult a skilled Rochester medical malpractice attorney to discuss your case.

Facts Regarding the Treatment of the Decedent

Reportedly, the plaintiff decedent underwent a knee replacement surgery on July 30, 2010. The surgery was performed by the defendant surgeon at the defendant hospital. The decedent had multiple health issues, including anemia and hypertension, at the time of the surgery, but she tolerated the surgery well. Following the surgery, she was prescribed an anticoagulant to prevent the formation of deep venous thrombosis (DVT). She remained hospitalized in stable condition. On August 4, 2010, however, she died due to a pulmonary embolism caused by a DVT in her leg.

New York Court Explains Continuous Treatment Doctrine in Medical Malpractice Cases

Published on: February 25, 2019 | By DeFrancisco & Falgiatano

New York medical malpractice lawsuits, like all civil claims, are governed by statutes of limitations. As such, if a plaintiff does not pursue his or her claim within the time limitations set forth under the law, he or she waives the right to recover. In some cases, however, the statute of limitations may be tolled by the continuous treatment doctrine, which allows the injured party additional time to pursue his or her claim.

The Supreme Court of New York, Appellate Division, recently explained the continuous treatment doctrine, in a case in which it ruled that the plaintiff’s claim was not barred by the statute of limitations due to the application of the doctrine. If you were injured by substandard medical care, you should contact an experienced Rochester medical malpractice attorney as soon as possible to discuss your options for seeking damages.

Factual and Procedural Background

Reportedly, the plaintiff underwent hip replacement surgery at the defendant hospital on July 9, 2008. She filed a Complaint alleging medical malpractice against the defendant hospital and defendant surgeon on December 16, 2013. The defendants filed a motion for summary judgment arguing that the Complaint was filed more than two years and six months after the plaintiff ceased treatment with the defendants and that therefore, the action was barred by the statute of limitations. The plaintiff opposed the motion, arguing that she continued treating until November 26, 2011, which was less than two and a half years before she filed her lawsuit. The trial court granted the defendants’ motion, after which the plaintiff appealed.