Rochester Medical Malpractice and Personal Injury Lawyer Blog

Medical Malpractice due to Misdiagnosis in New York

Published on: December 19, 2017 | By DeFrancisco & Falgiatano

Unfortunately, misdiagnosis is a more common problem than you may realize. Every year, approximately 12 million adults, which is five percent of adults who seek outpatient medical care, are misdiagnosed, according to the National Academy of Medicine. If you have been injured as a result of a misdiagnosis, you may be entitled to compensation for your harm. At DeFrancisco & Falgiatano Personal Injury Lawyers, our Rochester misdiagnosis attorneys can examine the facts of your case and help you understand your legal rights and options. We are committed to holding negligent medical professionals accountable for the harm that they cause.Many malpractice lawsuits stem from a misdiagnosis or delayed diagnosis of a medical condition, disease, or injury. Misdiagnosis can take many forms, but it typically involves diagnosing a disease that a patient does not have or failing to diagnose a disease that the patient has. Delayed diagnosis occurs when the doctor does not diagnose the patient in a timely manner. An overlooked diagnosis, also sometimes known as a failure to diagnose, refers to a condition that is entirely missed. When a medical professional makes a mistake regarding a diagnosis that leads to the wrong treatment, delayed treatment, or even no treatment at all, a patient’s condition can significantly worsen.

Proving malpractice due to misdiagnosis requires the same conditions to be met as with any other New York malpractice case. First, a doctor-patient relationship must have existed at the time of the incident, which would show the existence of a duty owed to the patient by the doctor. Second, the doctor must have breached the duty owed to the patient. This means the doctor’s conduct deviated from the generally accepted standard of care. The standard of care refers to the level of care that a reasonably prudent doctor would have used in the same or similar circumstances. Lastly, the plaintiff must show that the doctor’s breach was a direct and proximate cause of the plaintiff’s injury. This means that not every case of misdiagnosis is malpractice. Instead, the patient has to suffer an injury in order to have a viable malpractice claim.

If medical malpractice is established, the plaintiff can recover a variety of economic and non-economic damages, including medical expenses, rehabilitation costs, lost wages, pain and suffering, and any other losses arising from the malpractice. Each case is different, and the amount of compensation a plaintiff will be entitled to obtain will depend on the specific facts of the case.

Statute of Limitations in New York Medical Malpractice Cases

Published on: December 12, 2017 | By DeFrancisco & Falgiatano

Medical mistakes can lead to serious and long-term injuries for patients. If you or a loved one has been hurt due to a medical error, you should contact a skilled Rochester medical malpractice attorney as soon as possible. At DeFrancisco & Falgiatano Personal Injury Lawyers, we can thoroughly examine the facts of your case and determine whether you may be eligible for compensation. While no amount of money can undo the pain and stress of a medical injury, the money can help cover the bills that often pile up after such an incident. Time is of the essence in these cases, so it is important to act quickly.

Injured patients can hold negligent or reckless medical providers accountable through a medical malpractice claim. Each state has a specific deadline for filing medical malpractice claims, known as the statute of limitations, and New York is no exception. Failing to file your lawsuit in civil court within the appropriate time frame could mean losing your right to compensation altogether. In other words, if you do not file your medical malpractice case within the statute of limitations, you will be barred from filing a claim and pursuing damages.

Patients injured by medical malpractice in New York have two years and six months after the alleged malpractice to file a lawsuit in civil court. This is the general statute of limitations in New York, although there may be limited exceptions that apply in your case.

The Basic Elements of a Rochester Medical Malpractice Claim

Published on: December 5, 2017 | By DeFrancisco & Falgiatano

When you go see a doctor or another medical professional, you expect competent care. When medical professionals are careless or make a mistake, the consequences can be devastating for the patient. If you or someone close to you has been harmed by medical malpractice, it is important to reach out to a Rochester medical malpractice attorney who can assess the merits of your case. At DeFrancisco & Falgiatano Personal Injury Lawyers, we are committed to helping our clients pursue the compensation they deserve for their harm.

Unfortunately, medical malpractice is common in New York and throughout the United States. The Journal of the American Medical Association (JAMA) reports that medical mistakes are the third-leading cause of deaths in the United States, behind heart disease and cancer. Moreover, JAMA found that medical mistakes cause 250,000 deaths annually across the country.

Medical malpractice is a broad term that may encompass a wide range of actions or omissions by a medical provider. In other words, medical malpractice occurs through any act or omission by a medical professional during the treatment of a patient that deviates from the accepted norms of practice in the medical community and causes an injury to the patient. In order to establish medical malpractice, the injured patient must prove the following elements:

New York Appeals Court Rules that Psychiatric Malpractice Claim Cannot be Dismissed Because of Procedural Technicality

Published on: November 28, 2017 | By DeFrancisco & Falgiatano

New York medical malpractice lawsuits are subject to the same civil procedure rules as other litigation in New York courts. These rules guide all phases of the litigation and are comprised of deadlines, requests, and filings made to the court. Sometimes lawsuits are dismissed because of procedural lapses, instead of being dismissed on the merits of the malpractice claim. In one case, the New York Appellate Division, Fourth Department ruled on whether the plaintiff’s lawsuit should have been dismissed pursuant to New York Civil Practice Law and Rules, Rule 3404.

The facts of the case are as follows. A patient was admitted to a Niagara Falls hospital’s psychiatric wing. While under the psychiatrist’s care, the patient leaped from the top of the hospital’s roof and suffered serious injuries. The guardian of the patient filed a psychiatric malpractice lawsuit against the patient’s psychiatrist. The pre-trial litigation phase of discovery commenced, and the plaintiff filed a note of issue. In response, the defendant moved to vacate the note of issue because discovery was incomplete, the defendant alleged. The trial court granted the defendant’s motion and ordered additional discovery.

The plaintiff did not file a new note of issue for another year. Thus, the defendant moved to dismiss the psychiatric malpractice claim pursuant to Rule 3404. This procedural rule allows for the judicial dismissal of inactive cases under certain prescribed situations. The plaintiff opposed the motion, arguing that 3404 did not apply when the note of issue has been vacated. The court denied the defendant’s motion and noted that this very issue was subject to inconsistent rulings at the trial court level.

Couples Sue New York Fertility Clinic Over Eggs With Genetic Defect

Published on: November 22, 2017 | By DeFrancisco & Falgiatano

As people decide to have children at an older age, fertility clinics have grown in popularity. In addition, medical advances related to fertility have been a focus on medical researchers. For example, the NIH reports that the amount of research dollars related to fertility has grown from $78 million to $86 million over the last few years. However, as more people seek the services of fertility specialists, there are growing risks for New York birth injuries and prenatal care negligence. There is a current case pending before a New York court of appeals that revolves around the potential liability of a fertility clinic as it relates to genetically defective eggs.

The plaintiffs are two separate couples who allege that a New York fertility clinic, through the clinic’s fertility doctor, provided eggs that led to their children being born with genetic disorders. Both children have what’s known as Fragile X syndrome, which is a disease that can cause mental and physical developmental issues. The plaintiffs’ complaint alleges that the defendants, the fertility doctor and his clinic, failed to test the women who donated the eggs in question to assess whether those women were carriers for Fragile X syndrome. The damages relate to the expenses of caring for a disabled child.

The primary issue in the case is whether the claim is time-barred by New York’s statute of limitations for medical malpractice claims. Generally, the statute of limitations for a claim is 36 months from the date of the alleged act of malpractice.

New York Jury Rules in Favor of Plaintiff in Birth Injury Claim Against a Brooklyn Medical Center

Published on: November 15, 2017 | By DeFrancisco & Falgiatano

Childbirth injuries can be caused by innumerable factors, but the most common reason for a childbirth injury is pre-term birth. Sometimes the patient shows warning signs or symptoms that she might be experiencing pre-term birth. The patient’s doctors have the responsibility to recognize those symptoms and act accordingly, or as formulated under New York law, perform medical services in accordance with the applicable standard of care. The plaintiff in a New York birth injury lawsuit claimed that her physicians did not heed the early warning signs, and as a result, her child was born deaf and with vocal cord damage. The jury agreed, awarding her $26 million in damages after a month-long trial.

The plaintiff conceived twin girls via in vitro fertilization. However, the plaintiff began showing signs of preterm labor only five months into her pregnancy. The plaintiff visited the Brooklyn medical center, where she was being treated, and complained of painful cramping and brownish fluid releases, which suggested signs of internal bleeding. During her two visits, the plaintiff was seen by a resident rather than an attending doctor. Both times, she was discharged. The plaintiff’s experts argued that the doctors could have prevented what happened next if they would have ordered bed rest or prescribed to her hormones that can suppress premature labor. The plaintiff had a sonogram one week later and learned that her cervix had shortened from three centimeters to one centimeter.

The plaintiff delivered twins later in the month while they were premature. One of the twin sisters died a month after childbirth. The other twin suffered hearing loss and vocal paralysis, allegedly as a result of the medical center’s negligence.

Metadata from Emergency Medical Records Provides Attorneys with Crucial Information in New York Medical Malpractice Cases

Published on: November 8, 2017 | By DeFrancisco & Falgiatano

Metadata from emergency medical records (EMRs) can show when a chart entry was made, modifications to a chart entry, how long a chart was reviewed, and when it was accessed. This type of information can help determine the timing and substance of a plaintiff’s care. In other words, the information can help provide the evidence needed to show medical negligence. However, when plaintiffs conduct discovery requests, hospitals are not always forthcoming with EMRs and their accompanying metadata. In Gilbert v. Highland Hospital, the plaintiff moved to compel discovery of the EMR metadata to determine which physicians were involved in the plaintiff’s care, among other reasons. The court granted the plaintiff’s motion to compel discovery because the metadata was relevant to the medical malpractice claims and did not constitute a fishing expedition, a term used to describe overly broad discovery requests.

Another important New York medical malpractice decision regarding EMR metadata was Vargas v. Lee, although the court found that the plaintiff did not make the necessary showing to compel production of metadata. The case set a standard for plaintiffs seeking the production of such materials. The plaintiff in Vargas requested information related to the timing and substance of the plaintiff’s care in a specific three-week time frame. The plaintiff requested the EMR metadata for evidentiary reasons. The defendants objected to the disclosure because they alleged that the request was not relevant, overly burdensome, and administratively impossible. Interestingly, the court reasoned that metadata is discoverable when there are allegations of record alterations or manipulations or a “cover up” with regard to improper or negligent health care. Specifically, the court stated that metadata is relevant when the process of creation for a document is at issue or there are document authenticity concerns. The court ruled that the plaintiff could receive all of the information they needed from the patient treatment details from the already produced EMR.

EMR metadata may need to be requested separate and apart from the EMRs themselves. It could be extremely important in medical malpractice actions to receive this sort of information to determine the quality of care provided. In addition, this information is required to be kept by New York hospitals under Title 10 of the New York Codes, Rules and Regulations. Therefore, the metadata, assuming the hospital is following applicable law, should be available for production; it is a matter of requesting the information during pre-trial discovery. Commentators have noted that plaintiffs’ attorneys in medical malpractice actions should request metadata from EMRs, assuming it is useful in their case.

Stroke Victim May Proceed with Neurological Malpractice Claim Against Upstate New York Doctors and Hospitals

Published on: November 1, 2017 | By DeFrancisco & Falgiatano

According to the Centers for Disease Control and Prevention, stroke ranks as the fifth-most likely cause of death in the United States and causes a permanent disability in countless others. Stroke is treatable, however, but it’s absolutely necessary if someone is experiencing a stroke that they seek immediate care from a specialist like a neurologist. Unfortunately, in a New York neurology malpractice case, D’Orta v. Margaretville Mem. Hosp., the plaintiff alleged that the wait time for treatment of his stroke led to significant disabilities that could have been avoided if the medical professionals had not acted negligently.The plaintiff was playing cards with his friends in the early morning hours when he collapsed on the floor. The plaintiff had difficulty speaking, his face’s right side drooped, and he lost the use of his hand. His fiancee transported the plaintiff to a local hospital, where he arrived at 2:16 a.m. His collapse occurred an hour earlier, at 1:16 a.m. A physician at the local hospital, a defendant in the lawsuit, advised the plaintiff that he should be transported to a regional hospital with better resources to care for the plaintiff. The plaintiff was transferred to the other hospital and arrived at 4:52 a.m. The hospital consulted with a neurologist about administering TPA, a drug that can dissolve clots in certain stroke patients. However, the neurologist concluded that the plaintiff’s stroke was too severe, and too much time had passed to administer the drug.

The plaintiff named the hospitals and the physicians who provided care, including the neurologist, as defendants in a neurology malpractice lawsuit. The lawsuit alleged that the defendants committed malpractice because they did not administer TPA because the transfer to the second hospital was allegedly not timely. The defendants filed a motion for summary judgment, which the lower court denied, and the defendants appealed the decision.

Defendant Invokes New York Education and Public Health Laws’ Privileges to Prevent Discovery of Medical Records in New York Malpractice Case

Published on: October 30, 2017 | By DeFrancisco & Falgiatano

The New York Appellate Division, Third Division, analyzed, in a recent decision, the ability of defendants in New York medical malpractice lawsuits to assert statutory privileges during the discovery process. The court upheld the trial court’s ruling that the plaintiff’s discovery request was overly broad and vague, and therefore, the defendants did not have to disclose the information requested. The court relied on the analysis in a seminal case on the subject, Stalker v. Abraham, which outlines the statutory requirements of the privilege and the burden on defendants to prove its applicability.

When available, defendants often invoke the prohibitions on disclosure contained in the New York Education Law and the Public Health Law in tandem. These provisions are part of a policy to encourage open discussions with physicians about the credentialing process. The idea is that if the discussions are discoverable in litigation, physicians would not speak as candidly during these assessments. The hospital bears the burden of establishing the availability of the privilege. The hospital must show the following elements: (i) the hospital has a review procedure, and (ii) the information for which the privilege is asserted was obtained in connection with that review procedure. Without the protection of the privilege, any information the hospital has maintained related to a physician’s alleged negligence is generally relevant and subject to disclosure.

The defendant in Stalker, to support its assertion of privilege, submitted an affidavit from a medical credentialing specialist. She stated that the information requested would only be available through the credentialing process. She further stated that the purpose for the hospital’s credentialing process was to comply with any and all legal obligations that require that hospitals have established procedures in place to reduce medical malpractice. Moreover, it was in the specialist’s opinion that all of the information requested by the plaintiff was the sort of information gathered through peer review, credentialing, and quality assurance processes.

Anesthesia Error Claim Dismissed on Appeal After Plaintiff Fails to Produce Expert Affidavit

Published on: October 23, 2017 | By DeFrancisco & Falgiatano

New York anesthesia error cases are disconcertingly common. They arise from a variety of fact patterns, including the administration of too much or too little of an anesthetic, a delay in delivering anesthesia, or a failure to provide proper instructions to a patient before administering anesthesia. The effect on a patient of an anesthesia error could be discomfort, injury, or death.

When a woman died after experiencing heart problems following treatment in a hospital, her husband filed a medical malpractice lawsuit. Prior to commencing the lawsuit, the husband requested medical records related to his wife’s procedure. The doctors and hospital allegedly complied with some of the requests, but other doctors, including the anesthesiologist, required that the husband submit an affidavit to obtain the records.

Her husband wanted to begin depositions in order to make findings as to his wife’s heart rate and oxygen saturation levels before bradycardia occurred. The husband served a notice to the anesthesiologist for a deposition, but the anesthesiologist and his counsel requested that it be postponed. Instead of rescheduling, the husband filed a motion to compel the deposition. The husband argued that the anesthesiologist’s tactics obstructed the deposition. The trial court dismissed the lawsuit against the anesthesiologist because the husband had failed to provide an expert’s statement justifying his claims, known as an affidavit of merit in that jurisdiction, finding that he didn’t make a required written request for the medical records he needed from the anesthesiologist.