Medical Malpractice

Appeals Court Expounds on Expert Net Opinion Rule in Medical Malpractice Decision

Published on: October 9, 2017 | By DeFrancisco & Falgiatano

Medical malpractice cases rely heavily on expert medical opinions because negligence is established by the breach of a physician’s standard of medical care. Not all expert testimony is admissible at trial, however. Each jurisdiction maintains rules of evidence to guide which sort of expert testimony is admissible. For example, NY CPLR Section 4515 sets forth the rules for admitting expert testimony in New York medical malpractice cases.

In a recent case, a plaintiff sought the services of a plastic surgeon and underwent abdominoplasty, also known as a “tummy tuck,” at the age of 57. The plastic surgeon later conducted multiple unsuccessful scar revisions, but the surgeries were botched. The plaintiff’s plastic surgeon refunded her medical expenses.

The plaintiff sought the treatment of other doctors to help correct the botched tummy tuck. Eventually, the plaintiff consulted with the defendant in the case, who recommended a less invasive, in-office procedure, which she underwent in June 2008. In several follow-up appointments, the plaintiff complained of abdominal pain and vaginal irritation. The plaintiff was referred to another doctor, who diagnosed her with an umbilical hernia, and she filed a lawsuit against the surgeon who performed the less invasive procedure.

Boxer Receives $22 Million Medical Malpractice Settlement from New York State

Published on: October 6, 2017 | By DeFrancisco & Falgiatano

Traumatic brain injuries are sometimes difficult to diagnose because the damage is not visible without scans or X-rays. Timing is a critical component in treating brain injuries. A failure to receive proper care can lead to permanent damage and disability. Sadly, the state inspector general found that the New York State Athletic Commission mishandled the medical care of a boxer after he suffered brain trauma in a New York boxing match.The boxing match in question was held in Madison Square Garden and televised to a pay-per-view audience. The fight turned out badly for the losing boxer, who had difficulty breathing and ended the fight with his face bloody and swollen. After the fight, the boxer told the ringside physicians that he was experiencing severe headaches. The physicians present reviewed his symptoms, bandaged a wound over his eyelid, and suggested that he go see a doctor once he returned to his home in Florida. There was an an ambulance at the arena, but the doctors decided not to use it.

Later in the night, the NYSAC doctor who was watching over the boxer and officially tasked with monitoring his symptoms observed disconcerting medical symptoms and recommended that he be taken to an emergency room. The boxer’s interpreter attempted to wave down a taxi outside the venue. At that point, the boxer became unbalanced, started vomiting, and lost consciousness after he arrived at the hospital.

Appeals Court Rules that Treating Physician’s Negligence Testimony is Inadmissible

Published on: October 3, 2017 | By DeFrancisco & Falgiatano

Medical malpractice claims generally require the testimony of an expert witness in order to determine negligence and causation. The testifying expert is crucially important to the presentation of a case, in addition to having the requisite medical credentials and experience to opine on the evidence reviewed. A recent appeals court decision from New Jersey considers whether a treating physician can testify for the defendant. The decision certainly has potential implications for New York medical malpractice law.The defendant performed surgery on the plaintiff to extract an organ by means of a specific, though risky, surgical procedure. The parties agreed that during the surgery, the defendant sliced the incorrect area, causing an injury to the plaintiff. The issue before the court was whether this injury was a risk to which the patient consented prior to surgery, or instead a breach of the defendant’s standard of care.

Several days following the surgery, the plaintiff went back to an emergency room in New York with vomiting symptoms. Another surgeon performed emergency surgery on the plaintiff and discovered that her bile duct had been severed. This surgeon who repaired the bile duct later testified at a deposition that in his opinion, the defendant did not deviate from the standard of care. The plaintiff appealed a lower court ruling, arguing, in part, that the testimony of the operating physician was prejudicial to the plaintiff’s case.

Syracuse Fertility Clinic Liable for Medical Malpractice in $7.5 Million Verdict

Published on: September 29, 2017 | By DeFrancisco & Falgiatano

Many couples deciding that they would like to start a family realize that they need medical professional help to do so. Fertility clinics have grown in number, leading to what some news outlets have called a “fertility boom.” One advantage of using a fertility clinic is that medical professionals can conduct genetic testing to determine the presence of certain diseases and disorders. However, a recent lawsuit against a Syracuse fertility clinic shows that a failure to conduct certain genetic testing, requested by the patients, could be medical malpractice in New York State.

The jury in the New York Supreme Court of Schenectady County recently awarded a $7.5 million verdict in a New York medical malpractice lawsuit against a Syracuse fertility clinic. The couple alleged that the fertility clinic acted negligently when it failed to perform a crucial genetic test. The couple’s daughter was born in 2011 with cystic fibrosis, a disease that is a genetic disorder that affects the lungs.

The services contract with the fertility clinic included a cystic fibrosis genetic marker test, and it required the fertility clinic to inform the couple of the results before implantation. The plaintiffs alleged that the fertility clinic never performed the test and sought damages to support their daughter’s care.

New York Medical Malpractice Verdict of $3.1 Million Reduced on Appeal

Published on: September 26, 2017 | By DeFrancisco & Falgiatano

Defendants who lose medical malpractice cases at trial may have grounds to appeal the jury’s decision. Although the level of an appeals court’s discretion varies, the standard of review often requires a certain level of deference to the jury’s decision, and as a result, studies show that more cases are affirmed on appeal than overturned. That was not the outcome, however, in a recent New York medical malpractice case, in which the court decided that the $3.1 million awarded to the plaintiffs at trial was excessive.

The trial court ruled that the defendant, St. Peter’s Hospital, departed from the standard of care for accepted medical practice when two nurses failed to carry out a doctor’s order to conduct a CCT scan to rule out a lumbar bleed. This departure from the standard of care was determined to be a substantial factor in causing the plaintiff’s injury. The jury awarded the plaintiffs $3.1 million, $2.3 million of which was allocated to the plaintiff’s pain and suffering and $750,000 of which was allocated to loss of consortium.

The defendant appealed the decision. The appeals court first considered whether a new trial could be granted for the defendant. New York law provides that the court may only set aside a jury verdict if the verdict is not supported by legally sufficient evidence. The defendant asserted that the plaintiffs’ expert allegedly perjured herself by signing an affidavit regarding the issue of proximate cause when she lacked such qualifications. The appeals court noted that the jury decided this issue at trial and that therefore the court declined to grant the defendant’s motion for a new trial.

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.

New York Malpractice Decision Raises Unique Considerations for Psychiatry Cases

Published on: September 18, 2017 | By DeFrancisco & Falgiatano

A New York appeals court recently decided the case of a teenager who committed suicide on the night he was discharged from the emergency room. The court acknowledged the tragic circumstances of his death but ultimately affirmed the trial court’s decision for the defendants. This case shows the unique evidentiary considerations facing plaintiffs when attempting to show New York psychiatry malpractice, which is not as observable as other forms of malpractice.The patient was admitted to the Cayuga Medical Center emergency room after his school nurse observed that he had mood swings and suspected that he might have used illegal drugs. The patient was previously treated at the same hospital, a year before, for suicidal ideation, self harm, and rapid mood swings, and the hospital’s psychiatrist diagnosed the patient with a mood disorder brought on by substance abuse. The psychiatrist did not examine the patient personally when he was admitted for the second time. Instead, the psychiatrist referred to his notes from the patient’s earlier visit, as well as a mental health evaluation conducted by the emergency room nurse, and consulted the patient’s outpatient therapist, who said that although the patient was abusing drugs, he had not expressed suicidal tendencies. The patient was released from the hospital. Later that same night, after returning home, he committed suicide.

The patient’s parents sued the psychiatrist, Cayuga Medical Center, and the management company, Cayuga Emergency Physicians LLP, alleging medical malpractice, among other causes of action. The trial court granted summary judgment in favor of the defendants, and the plaintiffs appealed the decision. The court of appeals affirmed the trial court’s decision because the plaintiffs could not show that the physicians breached the appropriate standard of care. Instead, the court found that the plaintiffs were merely alleging that the doctors erred in their professional judgment.

New York Woman Dies After Undergoing Buttock-Enhancement Procedure

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

New York law imposes extensive regulatory requirements on medical professionals to help ensure that patients are receiving high-quality care. These safeguards are not always effective to prevent New York medical malpractice, and recent news reports show that doctors are performing unlicensed buttock-enhancement surgery. The silicone injection products are not FDA-approved, and the doctors are not qualified to perform the procedure. The consequences have included deformation, amputation, and even death.A New York woman seeking buttock-enhancement surgery met with a doctor in a local donut shop. The doctor then had the patient wait inside the donut shop until a “nurse” came to meet her and bring her to an apartment for silicone injections. The woman received the silicone injections in her buttocks and hips. She called 911 on the night following the procedure, reporting that she felt dizziness and chest pains. She was rushed to the hospital and slipped into a coma, after which she was later pronounced brain-dead. She was taken off life support a short time later. It’s possible that the injection was made into a blood vein, and as a result, the silicone entered her blood stream, where it passed to her heart and brain.

New York law enforcement searched the apartment where the procedure was performed. They found surgical supplies and drugs used to numb skin. The family of the deceased woman filed a lawsuit against the doctor, and it’s likely that criminal charges will also be brought against the doctor. In fact, an unlicensed Florida doctor was recently sentenced to 10 years in prison following a similarly botched procedure.

Report Shows History of Medical Malpractice at Syracuse VA Medical Center

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

The United States established the Veterans Health Administration to provide health and medical services to veterans. The program helped establish hospitals, clinics, and medical centers aimed at assisting veterans and is run by the federal government, which means the medical professionals working at the facilities are usually considered federal employees.As with any medical center, physicians perform risky procedures and sometimes make mistakes that injure people and lead to New York medical malpractice claims. Through a Freedom of Information Act request, the Department of Veteran Affairs released information regarding thousands of claims against various VA medical centers for an approximately 20-year period. The report shows that the Syracuse VA Medical Center ended up paying out approximately $2 million in claims.

The claimants were not always permitted to file lawsuits for medical malpractice against VA medical centers. Because of governmental immunity, lawsuits were not permitted until the passage of the Federal Tort Claims Act in 1946. The law waives governmental immunity and gives veterans the right to recover money damages from the federal government for injuries caused by the medical malpractice of federal employees.