Rochester Medical Malpractice and Personal Injury Lawyer Blog

Continuous Treatment Doctrine at Issue in New York Cancer Misdiagnosis Case

Published on: September 21, 2017 | By DeFrancisco & Falgiatano

The statute of limitations for New York medical malpractice lawsuits is currently 30 months. Generally, the time period for filing claims starts to run when the medical error occurred, although this might change if the Governor signs Lavern’s Law. Regardless, New York law recognizes an exception to the general rule. The continuous treatment doctrine extends, or tolls, the statute of limitations when a physician’s treatment has continued uninterrupted and is associated with the patient’s initial illness or condition.A New York appeals court ruled on this issue in Lewis v. Rutkovsky. The plaintiff brought a lawsuit against her primary care physician, alleging that he failed to detect, diagnose, and treat her meningioma. As a result of the alleged malpractice, the plaintiff underwent brain surgery that left her legally blind. The plaintiff first went to see the doctor in 1999 because she was experiencing migraines and blurred vision but did not file a lawsuit until 2010. She argued that this was still proper because her doctor ignored her complaints about her symptoms during the eight-year period of continuous treatment.

The court relied on earlier precedent to guide their decision. In Wilson v. Southampton Urgent Medical Care, P.C., the plaintiff received treatment on 11 separate occasions during a three-year period. The plaintiff’s symptoms included headaches, and she was eventually diagnosed with lung cancer. Deposition testimony revealed that a brain tumor from metastasized lung cancer would cause headaches. The court allowed the claim to proceed because there was an issue of fact as to whether the plaintiff’s continuous treatment for headaches was traceable to the lung cancer.

Hospital Denied Emergency Room Exception to Vicarious Liability Rule

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

One of the crucial threshold questions in a New York hospital negligence claim is who is responsible for the patient’s injuries. The physician who allegedly committed the malpractice would almost certainly be a defendant, but the hospital where the physician works is not always a proper defendant. In a recent case, the court examined the emergency room exception to the rule of vicarious liability as it applied to the alleged negligence of a non-employee, private attending physician.

The plaintiff arrived by ambulance to Peconic Bay Medical Center, where she was seen and evaluated by a doctor in the emergency department. Later, she was examined by the Center’s surgical consultant, a defendant to the lawsuit, who determined that she needed to undergo surgery. The plaintiff decided she wanted the surgery performed by another physician who worked at another hospital. The plaintiff was transferred after several hours to the other hospital, where she underwent numerous surgeries, which resulted in a large portion of her gastrointestinal tract being removed.

Generally, the doctrine of vicarious liability holds an employer responsible for the negligence of its employees. In the medical malpractice context, the hospital that retained the doctor on its staff can be held vicariously liable for the doctor’s medical negligence under an agency theory.

New York Court Allows Prenatal Care Case to Proceed

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

Prenatal care is the health care provided while a person is pregnant. A failure to provide proper prenatal care can lead to injuries not only to the child’s parent but also to the child in their earliest stages of development. A woman brought a New York medical malpractice lawsuit, on behalf of her son, alleging that two of her doctors failed to provide proper prenatal care, resulting in her child’s cerebral palsy. The Second Judicial Department of the Supreme Court of New York, Appellate Division agreed with the plaintiff that there was a triable issue concerning whether the doctors had breached their standard of care.The plaintiff sued the doctors after her son, who has cerebral palsy, was born. The plaintiff, during her pregnancy, developed a condition known as preeclampsia, which is a condition connected with hypertension and organ damage that can lead to complications during pregnancy, including harm to a fetus. Her doctors tried to treat her condition but ultimately decided to deliver the baby once the fetal heart rate started to slow down. The plaintiff’s complaint alleged that the doctors failed to perceive the warning signs of her condition and failed to provide the proper treatment after she went to the hospital.

Expert testimony is crucial to presenting medical malpractice claims. Both defendants and plaintiffs rely on the testimony of experts because a determination of negligence requires the examination of technical medical details.

New York Court Allows Anesthesia Error Case to Proceed

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

Anesthesia, when administered with the proper care, allows patients to undergo surgery without feeling pain. Unfortunately, anesthesia errors are common and often lead to debilitating injures or death. A court recently decided a New York anesthesia error case involving the negligent application of morphine, a common form of surgical anesthesia.The plaintiff went in for gallbladder surgery; during surgery, however, he went into cardiopulmonary arrest. This resulted in a brain injury that left him on a ventilator and in a vegetative state. The plaintiff brought a malpractice claim against two doctors and alleged that his anesthesiologist failed to recognize that the plaintiff was not responding appropriately to opiate pain medication. The court’s decision came at the summary judgment phase of the lawsuit. The primary issue before the court was whether the amount of morphine administered to the plaintiff was done in a way that was negligent.

Under New York law, summary judgment is a procedural phase in which the defendant tries to persuade the judge that the plaintiff’s claims should be dismissed because they lack merit. The defendant must present evidence that shows the absence of any triable issue regarding a claim. If the defendant meets this burden of proof, the plaintiff must present evidence to establish the presence of an issue of material fact. New York law provides that a summary judgment ruling in favor of the defendant is not proper in a medical malpractice claim when the parties have produced conflicting opinions by medical experts.

The defendants’ expert testimony stated that the doses of morphine administered to the plaintiff were within the accepted standard of care. Specifically, the dosage administered (9 to 13 mg) was insufficient to cause an overdose to the plaintiff. On the other hand, the plaintiff contended that although 9 to 13 mg of morphine may not have been excessive for a younger patient, it was negligent to administer this amount to the plaintiff, who was at an increased risk of an abnormal reaction because of his age and obesity. Furthermore, the plaintiff’s experts stated that the plaintiff’s pupils were severely dilated during surgery and evidence of the occurrence of an opioid overdose. The court acknowledged that this evidence could show that the plaintiff’s cardiac arrest was narcotics-induced and concluded that the plaintiff presented triable issues of fact concerning his possible opioid overdose as a result of his anesthesiologist’s negligence.

New York Legislature Passes Lavern’s Law, Affecting Cancer Misdiagnosis Statute of Limitations

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

A statute of limitations is a law that limits the time period within which you may sue a person or company. The New York medical malpractice statute imposes a 30-month time limit from the date of the malpractice or from the end of continuous treatment. However, the New York legislature recently passed Lavern’s Law to, among other things, give people who receive a cancer misdiagnosis a more reasonable time period to assert a malpractice claim.

The New York legislature first considered revising the medical malpractice statute after the death of a New York woman, whose cancer was misdiagnosed on two separate occasions. The woman visited Kings County Hospital with chest pain and received an X-ray. She was sent home after a first-year resident told her it looked fine. Later, she began having difficulty breathing. Again, this was misdiagnosed with asthma symptoms. Finally, two years after the initial visit, doctors reexamined her old X-ray and noticed a small mass. By this time, the mass had developed into lung cancer and spread throughout her body. She died approximately a year later.

The woman’s lawsuit for medical malpractice was unsuccessful because the statute of limitations had expired by the time she filed suit. New York is currently one of only six states that starts the statute of limitations when the medical mistake is made, not the moment the mistake is discovered. Lavern’s Law would change this feature of the current law so that the timing for cancer misdiagnoses would begin at the moment of discovery.