Medical Malpractice

New York Court Rules Dead Man’s Statute Does Not Preclude Evidence of Written Consent in a Medical Malpractice Case

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

Prior to surgery, the physician performing the surgery will typically obtain the patient’s informed consent. The process of obtaining informed consent involves advising the patient of any potential risks to the surgery and asking if the patient understands the risks and consents to the surgery regardless of the risks it presents. A failure to obtain informed consent can form the basis of a surgical malpractice claim if the patient suffers harm as a result of the surgery.

Determining whether valid consent was obtained is a fact-specific analysis. Recently, a New York court evaluated whether the Dead Man’s Statute precluded a deceased patient’s written consent form from evidence in support of the defendant surgeon’s motion for summary judgment. If you suffered harm due to surgical malpractice you should speak with a trusted Syracuse medical malpractice attorney as soon as you can to discuss whether you may be able to recover compensation.

The Plaintiff’s Decedent’s Surgery

Reportedly, the plaintiff’s decedent, who suffered from morbid obesity and sleep apnea, underwent arthroscopic surgery on his knee. The surgery was performed without incident by the defendant surgeon, while the decedent was under general anesthesia administered by the defendant anesthesiologist. Immediately after the surgery, the decedent was unresponsive. He then went into cardiac arrest. The surgical team made efforts to resuscitate the decedent, but they were unsuccessful, and he died.
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Court Discusses Standard for Granting Extension of Time to Serve New York Medical Malpractice Complaint

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

There are multiple facets that must combine for a plaintiff’s medical malpractice claim to be successful. First, the plaintiff must possess sufficient facts and evidence to show that the defendant medical provider should be held liable for the plaintiff’s alleged harm. Additionally, the plaintiff must comply with the procedural rules that dictate the manner in which a claim is prosecuted. For example, even if a plaintiff can present a strong case against a defendant, if the plaintiff fails to serve the initial pleading in a lawsuit in a timely manner, it may detrimentally affect his or her claim. In some cases, a plaintiff may be granted an extension of time to serve a lawsuit. A New York court recently discussed the standards for determining whether to grant a plaintiff an extension to serve a Complaint in a medical malpractice case. If your medical provider rendered negligence care that caused you to sustain an injury or illness, it is important to retain a knowledgeable Syracuse medical malpractice attorney to assist you in pursuing your claim.

Procedural Background

Reportedly, the plaintiff instituted a medical malpractice action in November 2016 by filing a Complaint. The Complaint set forth allegations that the defendant committed medical malpractice due to the failure to remove broken glass from the plaintiff’s leg. The defendant was reportedly served with the Complaint in December 2016. In February 2017, however, the defendant filed an answer to the Complaint and set forth the affirmative defense of lack of personal jurisdiction. The plaintiff then moved for an extension of time to serve the defendant with a Complaint. The defendant filed a counter motion to dismiss the Complaint due to lack of personal jurisdiction. The trial court granted the plaintiff’s motion and denied the defendant’s motion, after which the defendant appealed.

New York Court Discusses Standard for Granting Summary Judgment in Medical Malpractice Cases

Published on: March 19, 2019 | By DeFrancisco & Falgiatano

In medical malpractice cases, the burden shifts from the plaintiff, who must set forth evidence of the defendant’s malpractice, to the defendant, who must set forth evidence that he or she comported with the standard of care. When there is conflicting evidence the issue of whether the defendant committed malpractice is typically presented to a jury. In some cases, however, the evidence allows the court to find in favor of one party prior to a trial.

A New York appellate court recently discussed the standards for granting a motion for summary judgment in a medical malpractice case in which the court affirmed judgment in favor of the defendant. If you suffered harm because of a medical practitioner’s negligent failure to conduct necessary tests or diagnose an illness in a timely manner to ensure medical treatment, you should speak with a skilled Syracuse medical malpractice attorney regarding whether you may be able to recover damages for your harm.

The Decedent’s Treatment and Subsequent Death

Allegedly, the plaintiff’s decedent was a resident in a nursing home owned by the defendant for approximately fifteen months prior to her death in January 2012. The decedent suffered from several chronic health conditions, but her immediate cause of death was indicated as cardiopulmonary arrest caused by heart disease and atherosclerosis. Following an autopsy, the decedent’s final cause of death was determined to be aspiration pneumonia. The plaintiff then filed a lawsuit against the defendant alleging, in part, medical malpractice. Specifically, the plaintiff alleged that the defendant committed malpractice by failing to diagnose the decedent’s dysphagia, and failing to prevent or treat the decedent’s aspiration pneumonia. The defendant filed a motion for summary judgment which the trial court granted. The plaintiff subsequently appealed.

New York Court Dismisses Medical Malpractice Case for Plaintiff’s Failure to Participate in Discovery

Published on: March 12, 2019 | By DeFrancisco & Falgiatano

In medical malpractice cases, a plaintiff’s right to recover damages depends on both the factual evidence in support of his or her claim and whether he or she complies with the procedural requirements set forth under the law. Even if a plaintiff has clear evidence of malpractice, he or she may be precluded from recovering from the defendant if he or she refuses to comply with the obligations imposed by the law.

This was evidenced in a recent case in which the appellate division of the Supreme Court of New York affirmed the dismissal of the plaintiff’s case due to a willful refusal to participate in discovery. If you or a loved one suffered damages due to medical treatment that fell below the standard of care, you should speak with a knowledgeable Syracuse medical malpractice attorney as soon as possible to analyze the circumstances that brought about your harm and your options for pursuing compensation.

Facts Regarding the Decedent’s Treatment

Reportedly, in 2007, the plaintiff took her grandson to the emergency department of the defendant hospital for treatment. The child was examined and discharged that day. He passed away at home five days after his visit to the defendant hospital. The plaintiff filed a medical malpractice lawsuit against the defendant hospital in 2009. Subsequently, in 2015, the defendant filed a demand for the plaintiff to prosecute the case, pursuant to the New York statute imposing penalties for the failure to disclose information. The plaintiff then filed a motion for an extension of time to file a note of issue. The court granted the motion but ordered the plaintiff to appear for a deposition on or before May 27, 2016. The plaintiff failed to appear for a deposition, and in July 2016 the defendant filed a motion to dismiss the plaintiff’s complaint. The court granted the motion, after which the plaintiff appealed.

Court Holds Continuing to Treat Despite Cognitive Decline May Constitute Medical Malpractice in New York Case

Published on: March 1, 2019 | By DeFrancisco & Falgiatano

Negligent medical care is not limited to missed diagnoses or negligently performed surgeries but can present in a variety of ways. At the heart of each medical malpractice claim, however, is the allegation that the defendant medical care provider departed from the accepted standard of care.

Recently, a New York court addressed the novel issue of whether a defendant doctor deviated from the accepted standard of care by continuing to practice medicine despite his cognitive decline. If you sustained injuries due to inadequate or inappropriate medical care, you should consult a seasoned Syracuse medical malpractice attorney to discuss the facts of your case and whether you may be able to pursue damages.

The Defendant’s Treatment of Plaintiff

Allegedly, the plaintiff, who is intellectually disabled, visited the defendant doctor to obtain results of blood and urine tests. While the plaintiff was in the examining room, the defendant doctor exposed himself and committed a sexual act in front of the plaintiff. The plaintiff subsequently filed a lawsuit against the defendant doctor and his practice alleging, among other claims, medical malpractice. Following a trial, a jury found that the defendant doctor departed from the accepted standard of care due to the fact that he continued to practice medicine despite his cognitive disability. The defendant doctor appealed, arguing that his actions did not constitute “medical treatment” because they were not related to the essential elements of diagnosis and treatment.

New York Court Rules the Failure to Provide an Expert Affirmation is Fatal to a Plaintiff’s Medical Malpractice Claim

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

In the vast majority of medical malpractice cases, a plaintiff will need an expert to prove that the treatment provided by the defendant deviated from the standard of care. It is especially important to provide an expert affirmation in cases where the defendant has retained an expert.

When a plaintiff does not retain an expert it can result in the dismissal of the case, as illustrated in a recent case decided by The Supreme Court of New York, Appellate Division. If you suffered harm due to negligent medical care, it is essential to retain a capable Syracuse medical malpractice attorney who will work diligently to help you develop a strong case in favor of your recovery, and will retain an expert if it is necessary.

Factual and Procedural Background

Reportedly, the plaintiff treated the defendant for an ear infection. She subsequently filed a medical malpractice lawsuit against the defendant, alleging that the defendant’s improper instructions regarding prescription administration and an inappropriate prescription caused her to suffer hearing loss, tinnitus, and perforation of the tympanic membrane. The defendant filed a motion for summary judgment, which the court granted. The plaintiff then filed a motion for leave to amend her opposition to the defendant’s motion, which the court denied. The plaintiff appealed.

New York Court Finds Failure to Substitute Constitutes a Failure to Prosecute a Medical Malpractice Case

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

If a person dies due to inadequate medical care, the person’s loved ones may still be able to pursue a claim against the negligent medical providers. There are certain procedural requirements that must be complied with in pursuing a medical malpractice claim following the death of a loved one, and the claim must be pursued in a timely manner.

Recently, a case ruled on by a New York court illustrated the dangers of failing to pursue a claim, as the plaintiffs lost the right to pursue damages due to a delay in substituting the appropriate party. If you or a loved one suffered damages due to inadequate medical care, it is essential to retain a trusted Syracuse medical malpractice attorney as soon as possible to avoid waiving your right to recover.

Procedural Background

Allegedly, the plaintiff sued the defendant nursing and rehabilitation center for medical malpractice and violations of the Public Health Law arising out of nursing home negligence that occurred in 2013. The plaintiff’s decedent died on September 30, 2013. The plaintiff did not institute her lawsuit until April 6, 2018, which was two years after the passing of the applicable statute of limitations. The defendant filed a motion to dismiss the action as untimely.

Court Rules a Nurse Was Qualified to Offer Expert Testimony in New York Medical Malpractice Case

Published on: February 5, 2019 | By DeFrancisco & Falgiatano

In almost all medical malpractice cases both the plaintiff and the defendant will need to engage experts to prove their claims. Just as medical malpractice cases are not limited to claims against doctors, the experts in medical malpractice cases are not required to be doctors. Rather, any medical care provider qualified to offer an opinion on the disputed issue can be an expert.

This was illustrated in a case heard by a New York appellate court, in which the court affirmed that a nurse’s expert testimony was properly admitted. If you suffered harm due to inadequate medical care, you should meet with a skilled Syracuse medical malpractice attorney as soon as possible to discuss the facts of your case and your options for seeking compensation from the parties responsible for your harm.

Facts Regarding the Decedent’s Care

It is alleged that the decedent was admitted to the defendant hospital and diagnosed with cancer. For the next two months, he was treated as an inpatient, with the exception of ten days when he was discharged to his home. He ultimately died of cancer, after which his wife filed a lawsuit against the defendant hospital, alleging malpractice due to the hospital’s failure to properly prevent and treat the decedent’s pressure ulcers while he was admitted at the hospital. The case proceeded to trial, after which a jury found in favor of the plaintiff, awarding her $500,000 for the defendant’s conscious pain and suffering prior to his death. The defendant moved to set aside the verdict or for a new trial, which the trial court denied. The defendant then appealed.

New York Court Overturns Dismissal of Medical Malpractice Case Due to Disputed Facts

Published on: January 29, 2019 | By DeFrancisco & Falgiatano

Medical malpractice cases are typically fact-intensive and whether a plaintiff’s case is successful often depends on an expert’s interpretation of the facts. In cases where the defendant seeks to have a case dismissed, the defendant must show that there is no evidence that it breached the applicable standard of care, or if it did the breach was not the cause of the plaintiff’s harm. In arguing the care provided was not negligent, however, the defendant cannot pick and choose which facts should be considered.

This was recently explained by an appellate court in New York in a case in which the court overturned a ruling dismissing the plaintiff’s claims against the defendant on the grounds that there was a factual dispute as to the care provided. If negligent medical care caused you harm, you should consult an experienced Syracuse medical malpractice attorney to analyze the facts surrounding your treatment and whether you may be able to pursue damages.

The Plaintiff’s Treatment

It is reported that the plaintiff presented to the defendant physician assistant three times over an 11 day period in 2008 with complaints of ear pain, sinus pain, and headaches. The defendant physician assistant diagnosed the plaintiff with an ear infection and sinusitis and prescribed him antibiotics. His symptoms continued to worsen and he visited the emergency department of the defendant hospital twice during the 11 day period, where he allegedly complained of a severe headache and stated he believed he had suffered a stroke.

Court Analyzes Notice to Public Corporation Required to Pursue Medical Malpractice Claims Under New York Law

Published on: January 21, 2019 | By DeFrancisco & Falgiatano

In medical malpractice cases, as with all cases, it is important to follow any procedural rules. If a plaintiff does not properly comply with the laws regarding notice and statutory limitations periods, he or she may waive the right to recover damages regardless of whether the defendant medical professional provided inadequate care. For example, under New York medical malpractice law, a plaintiff pursuing a medical malpractice claim against a public corporation is required to provide the corporation with notice of the essential facts of the claim within 90 days of the alleged harm.

Recently, a New York appellate court discussed the notice requirements and what constitutes actual notice, in a medical malpractice case pursued against a municipal rescue squad. If you sustained permanent injuries because of negligent care from a medical professional, it is important to consult a trusted Syracuse medical malpractice attorney in a timely manner to avoid waiving your right to recover.

Plaintiff’s Injury and Subsequent Care

Allegedly, the plaintiff tripped and fell down a flight of stairs while she was at a restaurant. The defendant fire and rescue squad responded to a call for emergency medical services. The defendant’s emergency medical technician (EMT) evaluated the plaintiff and provided her with care until a paramedic arrived. The plaintiff was transported to the hospital by the paramedic, and upon her arrival at the hospital reported a loss of sensation in her legs. The plaintiff was ultimately diagnosed a partial paraplegic.