Rochester Medical Malpractice and Personal Injury Lawyer Blog

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.

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.