Articles Posted in Surgical Malpractice

Plaintiffs are afforded many rights in medical malpractice claims, including to a large degree the ability to choose where the matter is filed. The right is not absolute, however, and defendants may seek a change of venue if they feel another location is appropriate or can remove cases to federal courts. Many defendants prefer to have cases heard in federal court, but there are restrictions as to what matters the courts may exercise jurisdiction over, and if a case is improperly removed, it may be remanded, as demonstrated in a recent ruling issued in a surgical malpractice case by a District Court sitting in New York. If you were injured by a carelessly performed procedure, it is prudent to meet with a Syracuse surgical malpractice lawyer about your rights.

History of the Case

It is reported that the plaintiff underwent a surgical procedure during which the defendant surgeons implanted a filter into one of her veins. She subsequently suffered complications and filed a medical malpractice lawsuit in state court against the defendant surgeons and the defendant hospital. She also asserted claims against the manufacturer of the filter. The defendants removed the case to the federal district court. The plaintiff then filed a motion to remand the case back to state court, arguing that the federal court lacked jurisdiction over the plaintiff’s claims.

Federal Jurisdiction Over Medical Malpractice Claims

Pursuant to federal law, a defendant in a case brought in state court may remove the matter to the district court in the place the action is pending. District courts have jurisdiction over any civil matter where the amount in dispute exceeds $75,000, and the parties are citizens of different states. If a party removes an action filed in state court to federal court on the basis of diversity of citizenship, and the plaintiff challenges the district court’s jurisdiction as the basis for removal, the removing party bears the burden of providing adequate proof of its right to be heard in a federal forum. Continue Reading ›

Within the confines of the applicable rules, people harmed by medical malpractice have the right to choose where to pursue claims against the health care providers that caused their harm. In many instances, it is preferable for a plaintiff to file a medical malpractice lawsuit in federal court for a variety of reasons. In some cases, though, a defendant can remove the case to federal court, even if the plaintiff wants it to remain in state court. Defendants must prove certain criteria to show a removal to federal court is proper, however, and if they do not, their cases will be remanded back to state court. This was demonstrated in a recent surgical malpractice matter, in which the court ruled that the defendants failed to show the removal was proper. If you were hurt by an incompetent surgeon, you may be able to recover compensation, and it is prudent to speak to a knowledgeable Syracuse surgical malpractice lawyer as soon as possible.

History of the Case

It is reported that the plaintiffs filed a medical malpractice action against the defendant corporations and physicians, alleging medical malpractice and other claims arising out of harm suffered following a surgical procedure. The complaint was filed in State court and alleged that the defendants and plaintiffs were all residents of New York. The defendants then filed a notice of removal on the grounds of diversity jurisdiction.

Allegedly, the defendants argued, in part, that some of the defendants had been improperly joined in order to destroy diversity jurisdiction and that there was complete diversity between the parties that were properly joined. The plaintiff filed a motion, asserting that the case could not be removed when one of the defendants was a resident of the forum state.

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Cosmetic surgery is typically elective, but it nonetheless carries the same risks as other procedures. For example, if a surgeon does not take the proper precautions, a patient may suffer infections, adhesions, or other harm. Patients harmed by the negligence of plastic surgeons typically have the right to pursue damages via medical malpractice claims unless they expressly waive their rights via a contractual release. The grounds for enforcing a release in a medical malpractice case were recently discussed by a New York Court, in a ruling in which the plaintiff’s claims were dismissed. If you were harmed by the negligence of a plastic surgeon, you could be owed compensation, and it is in your best interest to meet with a seasoned Syracuse surgical malpractice lawyer to assess your options.

The Plaintiff’s Harm

It is reported that the plaintiff received a buttock augmentation at the defendant facility. Following the procedure, she developed an infection and bleeding at the operative site. She had to undergo additional procedures and was prescribed narcotic pain medication. She subsequently contacted the defendant and requested a refund of her payment for the procedure. The defendant agreed but required her to sign a release prior to granting her the refund. The plaintiff then filed a medical malpractice lawsuit against the defendant. The defendant ultimately moved for summary judgment, arguing that the release barred the plaintiff’s claims. The plaintiff opposed the motion, but the court granted it regardless.

Enforceability of Releases in Medical Malpractice Cases

Upon review, the court explained that, under New York law, a valid release that is unambiguous and clear on its face will be enforced as a private agreement between the parties, as long as it was entered into knowingly and voluntarily. In other words, absent evidence of duress, fraud, undue influence, or another valid defense, a release will be binding on the parties that signed it. Continue Reading ›

Most treatment options are helpful but present risks of adverse side effects. To ensure that a patient is making an intelligent decision regarding whether to proceed with surgery, then a doctor must advise the patient of the hazards of the procedure and treatment alternatives. As such, doctors that operate on people absent informed consent may be deemed liable for any harm suffered, regardless of whether it is an expected result. In a recent New York opinion, a court discussed what must be proved by the plaintiff to recover under a lack of informed consent claim. If you were injured by your doctor’s failure to properly advise you of the potential consequences of a procedure, it is in your best interest to speak to a Syracuse surgical malpractice attorney to determine whether you may be able to recover damages.

The Plaintiff’s Care

It is alleged that the plaintiff underwent a cervical fusion after she sustained injuries in a collision. The defendant doctor performed the surgery. The plaintiff was then involved in a second car accident, after which she experienced increased neck pain. She underwent a second procedure, which was also performed by the defendant, after which she developed myelomalacia. She then filed a lawsuit against the defendant asserting medical negligence and lack of informed consent claims. The defendant moved for summary judgment, and the court granted his motion, after which the plaintiff appealed.

Lack of Informed Consent Claims Under New York Law

Under New York law, a plaintiff asserting a medical malpractice claim ascending out of the defendant’s failure to obtain the plaintiff’s informed consent must first establish that the defendant neglected to advise the plaintiff of the benefits, risks, and alternatives to the treatment and that a reasonable doctor would have provided such information. The plaintiff also has to prove that a reasonable person in the plaintiff’s position would have declined to undergo the treatment if provided with full disclosure of the associated risks. Continue Reading ›

In many instances, when a patient suffers complications following a surgery it is because the surgery was improperly performed. In such cases, the surgeon could be held liable for medical malpractice. If a person who develops an issue after a procedure wishes to pursue claims against the doctor that performed the procedure, though, the individual must obtain testimony from a competent expert to establish that the adverse health effects arose out of medical incompetence, otherwise they may be denied the right to recover damages. This was demonstrated in a ruling recently issued by a New York court, in a case in which the defendant argued the plaintiff’s harm was not caused by medical negligence and the court agreed. If you sustained losses because of an inappropriately performed surgery, it is smart to speak to a Syracuse surgical malpractice attorney to determine what evidence you must produce to recover damages.

The Plaintiff’s Harm

It is reported that the plaintiff underwent a right knee replacement in February 2012, that was performed by the defendant orthopedic surgeon. His wound healed slowly, and he later underwent a second surgery which was performed by the defendant orthopedic surgeon to maintain the hardware that had been placed during the first procedure. The defendant plastic surgeon also performed a procedure at that time.

It was reported that the plaintiff then developed pain and range of motion issues and underwent a total knee replacement two years later. He then filed a medical malpractice lawsuit against the defendants, arguing their negligence led to complications that required the knee replacement. The defendants filed motions asking the court to dismiss the plaintiff’s claims via summary judgment. The court denied the motions and the defendants appealed. Continue Reading ›

New York has many municipally owned and operated hospitals and medical facilities. While such facilities are not immune to medical malpractice claims, they are subject to different rules. In a recent New York opinion, a court explained the requirements for pursuing medical malpractice claims against a municipality in a case arising out of a negligently performed surgery. If you were hurt due to surgical errors, you should consult a trusted Syracuse surgical malpractice attorney to evaluate your rights.

The Plaintiff’s Claims

It is reported that in April 2016, the plaintiff underwent a surgical procedure to remove her thymus gland at the defendant hospital, which was a public corporation. In August 2016, the plaintiff reported to the defendant’s emergency room with complaints of shortness of breath and other symptoms. She was evaluated as having an elevated right hemidiaphragm and discharged. She visited another emergency room in November 2016 with similar symptoms and received the same diagnosis. Then, in January 2017, she was diagnosed with paralysis of the right hemidiaphragm due to the removal of her right phrenic nerve during her surgery.

It is alleged that in March 2017, the plaintiff served the defendant a petition asking to serve late notice of a claim. The petition alleged the defendant’s failure to obtain the plaintiff’s informed consent and medical malpractice caused the plaintiff’s harm. The court denied the plaintiff’s petition, and she appealed. Continue Reading ›