Surgical Malpractice

Medical Malpractice Claim Denied for New York Woman with Surgical Camera Lodged in Intestines

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

A recent court decision highlights the careful distinctions courts make in interpreting the New York medical malpractice statute of limitations. In Leace v. Kohlroser, the plaintiff was treated by a gastroenterologist for Crohn’s disease. She underwent a capsule endoscopy under his care, and he advised her to swallow a capsule camera. The capsule camera transmitted images during a procedure, and the camera was supposed to pass through her in the normal course of digestion. Approximately a year later, the plaintiff received a CAT scan that revealed that the camera was still inside her intestines. The plaintiff alleged that she was never advised of the results of this CAT scan. Two years later, another CAT scan revealed the continued presence of the camera inside her intestines, and the camera had to be surgically removed.

The plaintiff filed a lawsuit against her doctors and his medical group for medical malpractice and lack of informed consent. The defendants moved to dismiss her lawsuit, asserting that it was time-barred under the 30-month statute of limitations under New York law. The trial court granted the defendants’ motion, and the plaintiff appealed the decision.

Although the general rule is that a medical malpractice lawsuit must be commenced within 30 months from when the medical error occurred, an action based upon the discovery of a foreign object allows the patient to file a lawsuit within one year of the date of discovery. However, the relevant New York statute draws a distinction between a “fixation device” and a “foreign object.” The extension does not apply to a “fixation device.” Case law has interpreted the meaning of “foreign object” to include items like surgical clamps or paraphernalia (e.g., scalpels, sponges, drains) inserted into a patient’s body to carry out a surgical procedure.

Pathology Malpractice Claim in New York Illustrates Importance of Expert Witness Testimony

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

Pathology malpractice occurs when a physician fails to correctly assess a patient’s tissue or fluid sample. The result can delay a diagnosis or lead to the mistreatment of a patient’s medical condition. Often, the determination of whether the pathologist acted negligently turns on very technical details, which is why New York pathology malpractice claims generally require expert testimony to demonstrate the failure of a physician to exercise the requisite standard of care.The plaintiff underwent a colonoscopy, and after the results came back, the plaintiff was referred to a specialist. The specialist recommended a surgical procedure to remove one side of the colon. The plaintiff consented to the surgery after being apprised of the risks, benefits, and alternatives of the proposed surgery. Following surgery, the pathology report found that the cancer was grade III and poorly differentiated with a maximal thickness of 1.2 cm. Later, the plaintiff complained of severe pain. The conditions suggested an anastomotic leak; however, the surgical pathology report noted no perforations. The leak was then repaired with staples and sutures. The plaintiff and her husband brought a lawsuit alleging medical malpractice.

New York medical malpractice summary judgment proceedings require that the defendant(s) use medical records and competent expert witnesses to show that the defendant(s) did not deviate from accepted medical practice in the treatment of the plaintiff or that the injury was not a proximate cause of the plaintiff’s injuries. The expert testimony must be supported by facts and tailored to the claims presented. Conclusory statements are insufficient to establish a claim, particularly at the summary judgment stage of proceedings.

New York Court Allows Botched Spinal Surgery Lawsuit to Proceed

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

Invasive surgical procedures necessarily carry with them risks, including a possibility of permanent injury. Although doctors are required to disclose the risks associated with a procedure under the doctrine of informed consent, New York medical malpractice law holds doctors to a certain standard of care when performing surgeries. Whether this standard was breached was at issue in a recent New York court decision after the plaintiff alleged that a botched spinal surgery worsened her condition and resulted in additional surgeries.

The plaintiff came to her doctor with complaints about chronic lower back and leg pain. After taking X-rays, the plaintiff and her doctor discussed possible surgical options. The plaintiff elected to undergo back surgery to repair the bulging disc in her back. The court record showed that there was no indication that there was anything wrong during the surgery; however, a day after the surgery, the plaintiff had a left foot drop. Her doctor recommended that the plaintiff continue with steroids and physical therapy and did not immediately recommend surgery. The plaintiff continued to experience significant pain going down the left leg and decreased sensation in her left foot. The plaintiff returned to her doctor, and after he re-evaluated the plaintiff, he suggested a further spinal procedure, six days after the first was completed.

The plaintiff’s lawsuit alleged that the defendants, which included her doctor and the hospital, (i) failed to obtain informed consent in advance of the surgery or on the day of surgery; and (ii) committed medical malpractice, based upon the performance of the initial surgery and the timing of the second surgery.