Surgical Malpractice

New York Court Discusses a Hospital’s Liability for a Resident’s Acts

Published on: August 2, 2019 | By DeFrancisco & Falgiatano

In many cases in which a person is injured by inadequate medical care there will be more than one entity or care provider liable for his or her harm. For example, hospitals can be held accountable for harm caused by a resident due to an improperly performed procedure. Recently, the appellate division of the Supreme Court of New York analyzed when a hospital may be deemed liable for the negligent care provided by a surgical resident. If you suffered harm due to the negligence of a hospital or any other care provider, it is essential to consult an experienced Syracuse hospital malpractice attorney regarding what you must prove to hold the hospital liable for your injuries.

Factual Background

It is alleged that the plaintiff underwent an attempted lumbar fusion surgery at the defendant hospital. The vascular part of the surgery was performed by the defendant surgeon, who was assisted by a resident. Early on in the procedure, the defendant surgeon encountered problems with the plaintiff’s iliac veins, which began profusely bleeding. The defendant surgeon attempted to repair the veins, which lead to increased tearing and blood loss. The plaintiff was then hospitalized for several months while he recovered. He then filed a medical malpractice lawsuit against the defendants. The defendants filed a motion for summary judgment. The trial court granted the motion, after which the plaintiff appealed.

A Hospital’s Liability for a Resident’s Negligence

On appeal, the court held, in part, that the hospital met its burden of proof by showing that the resident it agreed to hold harmless and defend did not exercise any independent judgment during the surgery. The court noted that, under New York law, a resident who aids a doctor during a medical procedure cannot be held liable for medical malpractice if the resident did not exercise any independent medical judgment, unless the doctor’s directions so greatly deviated from the standard of care the resident was obligated to intervene. Continue Reading ›

Court Discusses Standard for Setting Aside a Jury’s Verdict in a New York Medical Malpractice Case

Published on: July 30, 2019 | By DeFrancisco & Falgiatano

In most New York medical malpractice cases, the plaintiff will request a trial by a jury of his or her peers. Thus, if the case proceeds to trial, the jury will determine issues of fact and credibility, and render a verdict based on its assessment. Although jury trials are an essential part of our country’s civil litigation process, in some instances a jury issues a verdict that is against the weight of the evidence. In such cases, there are procedures in place that allow parties to seek recourse for verdicts they deem unfounded. A New York appellate court recently discussed the basis for setting aside the verdict in a surgical malpractice case. If you were injured by surgical malpractice it is important to engage an assertive Syracuse surgical malpractice attorney who will aggressively advocate on your behalf throughout each stage of your case.

Factual Background of the Case

Allegedly, the decedent was admitted to the defendant medical center to undergo a hip replacement. Following the surgery, she developed gastrointestinal bleeding. She subsequently died due to cardiac and respiratory arrest as a result of the bleeding. The plaintiff, the executor of the decedent’s estate, filed a surgical malpractice lawsuit against the defendant surgeon. The plaintiff also asserted a vicarious liability claim against the defendant medical center, alleging it was liable for the actions of the defendant surgeon. Following a trial, the jury found in favor of the defendant. The plaintiff filed a motion to set aside the verdict, arguing that it was against the weight of the evidence. The court denied the plaintiff’s motion, after which he appealed.

Setting Aside a Jury Verdict as Against the Weight of the Evidence

Under New York law, a court may not disregard a jury’s verdict as against the weight of the evidence, unless the evidence is so heavily in favor of the party asking the verdict to be set aside that the verdict could not have been reached by a fair interpretation of the evidence. Here, the court noted that in a medical malpractice case, the plaintiff has the burden of proving that it is more likely than not that the defendant deviated from the accepted standard of care, and that the deviation proximately caused the plaintiff’s alleged harm. Further, the court stated that hospitals and medical centers can be held vicariously liable for the negligence of their employees. Continue Reading ›

New York Court Reverses Verdict Finding No Surgical Malpractice as Against the Weight of the Evidence

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

In most surgical malpractice cases, the plaintiff will elect to have a jury decide whether the defendant doctor should be held liable for the plaintiff’s harm. Juries do not always assess liability accurately, however, and in some cases, a jury will issue a verdict that is in opposition to the clear evidence of the case. If the jury’s verdict is against the weight of the evidence, the court may set it aside, as illustrated in a recent New York surgical malpractice case in which the jury found the defendant was not liable despite substantial evidence that the defendant did not meet the standard of care. If you were harmed by surgical malpractice it is prudent to meet with a proficient Syracuse surgical malpractice lawyer to discuss your case and what damages you may be able to recover.

Factual and Procedural Background

It is alleged that the plaintiff underwent a surgical procedure that was performed by the defendant. During the surgery, the defendant failed to appropriately inspect the plaintiff’s bowel and therefore failed to observe that the plaintiff suffered a perforation in her bowel. The plaintiff subsequently developed peritonitis, fell into a coma, and suffered gastrointestinal, respiratory, and organ failure. She subsequently filed a malpractice lawsuit against the defendant. Following a trial, a jury issued a verdict in favor of the defendant, finding in part that the defendant did not deviate from the applicable standard of care. The plaintiff filed a motion to set aside the verdict, arguing that it was against the weight of the evidence.

Setting Aside a Verdict That is Against the Weight of the Evidence

Under New York law, it is well established that when a verdict is against the weight of the evidence it will be set aside. A verdict will be found to be against the weight of the evidence when the evidence introduced at trial weighed so heavily in favor of the party moving to set aside the verdict, that the jury could not have reached the verdict based upon a fair interpretation of the evidence.

New York Court Addresses Scope of Informed Consent

Published on: May 24, 2019 | By DeFrancisco & Falgiatano

Any time a person needs to undergo a surgical procedure, the doctor performing the procedure is required to obtain the person’s informed consent. In other words, the doctor must explain to the person the risks, benefits, and potential outcomes of the surgery, and obtain consent from the person to proceed with the procedure. Even if a doctor obtains informed consent prior to performing a procedure, if the doctor exceeds the scope of the consent it may constitute surgical malpractice, as discussed in a recent case ruled on by a New York court of appeals. If your surgeon did not obtain your valid consent prior to your surgery and you suffered harm as a result you should speak with a trusted Syracuse surgical malpractice attorney who can assist you in seeking any compensation you may be owed.

Factual Background of the Surgical Procedure

Reportedly, the defendant doctor performed an exploratory laparoscopic surgical procedure on the plaintiff at the defendant hospital. Prior to undergoing the procedure, the surgeon obtained consent from the plaintiff to remove her fallopian tubes in the event a malignancy was discovered during the surgery. The plaintiff underwent the procedure, during which her fallopian tubes were removed despite the fact that no malignancy was found.

It is reported that the plaintiff then filed a surgical malpractice claim against the defendants. The defendants filed motions to dismiss the plaintiff’s claims for failure to serve the complaint in a timely manner and for failure to state a meritorious claim. The trial court denied the defendants’ motions, and the defendants appealed.
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New York Court Discusses Sufficiency of Evidence Needed to Defeat Summary Judgment in a Surgical Malpractice Case

Published on: April 18, 2019 | By DeFrancisco & Falgiatano

In surgical malpractice cases, there is a shifting burden from the defendant to the plaintiff to provide competent evidence to prove whether there is sufficient evidence to show that the defendant deviated from the accepted standard of care. In most cases, each party will produce an expert affidavit supporting his or her position. A New York appellate court recently discussed what could constitute sufficient evidence to rebut a defendant’s prima facie showing that he did not commit surgical malpractice, in a case in which the defendant sought a dismissal via summary judgment. If you were injured due to a surgical error, you should retain a capable Syracuse surgical malpractice attorney to assist you in your pursuit of compensation from your negligent care providers.

Facts Regarding the Plaintiff’s Surgery

Allegedly, the plaintiff underwent surgery to extract a stone from his left ureter. The surgery was performed by the defendant and was completed without incident. Approximately one day later, however, the plaintiff returned to the hospital with complaints of pain in his abdomen and an inability to urinate. He underwent a CT scan which revealed a perforation in his bladder. He then underwent a second surgery to repair the perforation. The plaintiff subsequently sued the defendant in a medical malpractice lawsuit. The defendant filed a motion for summary judgment, to which the plaintiff responded by filing an unsworn expert affidavit. The court subsequently denied the defendant’s motion, after which he appealed.

Elements of Proof in a Medical Malpractice Action

The elements of proof in a medical malpractice action are a deviation from the accepted standard of care, and evidence the deviation proximately caused the plaintiff’s harm. A defendant seeking the dismissal of medical malpractice claims via summary judgment must establish by prima facie evidence that he or she did not depart from the standard of care, or that the departure did not harm the plaintiff. If the defendant makes a sufficient prima facie showing, the burden then shifts to the plaintiff to show a triable issue of material fact. Further, a court should not grant summary judgment where the parties produce conflicting opinions from medical experts.
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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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New York Court Explains Standard for Granting a Motion for Judgment as a Matter of Law in Medical Malpractice Cases

Published on: March 26, 2019 | By DeFrancisco & Falgiatano

Surgeons are required to possess the skills and training of other surgeons in their local community. As such, for a plaintiff to recover on a surgical malpractice claim he or she must show, in part, that the defendant surgeon performed the operation in a manner that deviated from the accepted practice in the community. If a surgeon performed a surgery in an accepted manner, a malpractice claim will not lie, even if the manner was not the preferred method. This was illustrated in a recent New York case in which the court affirmed the defendant’s motion for judgment as a matter of law, due to a lack of evidence that the defendant deviated from the standard of care. If you were injured due to a negligently performed surgical procedure, you should meet with a skillful Syracuse medical malpractice attorney regarding your case to assess what damages you may be able to recover.

Factual and Procedural Background

The plaintiff underwent a brachioplasty, which was performed by the defendant. A brachioplasty, which is commonly referred to as an arm lift, is a surgical procedure that reshapes a patient’s arms. The plaintiff subsequently filed a surgical malpractice lawsuit against the defendant arguing he negligently performed the surgery thereby causing her harm. The case proceeded to trial, and at the close of the plaintiff’s case, the defendant filed a motion for judgment as a matter of law, which the court granted. The plaintiff appealed. On appeal, the court affirmed.

Court Affirms New York Jury’s Finding that Doctor’s Negligence did not Cause the Alleged Harm

Published on: January 14, 2019 | By DeFrancisco & Falgiatano

Medical malpractice claims typically allege that a medical provider negligently breached the standard of care and therefore, the provider should be responsible for any harm the injured party sustained because of the inadequate care. To recover under a medical malpractice claim alleging negligence, in addition to proving that the medical provider’s care was negligent, you must show that the negligence was the actual cause of your damages.

This was illustrated in a recent case decided by the appellate division of the Supreme Court of New York, in which the court affirmed a jury’s verdict in favor of the defendant medical provider, despite finding he provided negligent care. If you were harmed by inadequate medical care, you should seek a consultation with a trusted Syracuse medical malpractice attorney in a timely manner to discuss what options you have for pursuing damages from the responsible parties.

Plaintiff’s Allegations and the Jury Ruling

The plaintiff sued the defendant doctor for allegedly improperly performing diagnostic arthroscopic knee surgery, without her consent. The plaintiff claimed that as a result of the surgery, which was unnecessary, she suffered neurovascular injuries. During the trial, the defendant and plaintiff each presented evidence from experts certified in orthopedic surgery and neurosurgery. The jury ultimately found that the defendant deviated from the standard of care in his pre-surgical examination of the plaintiff, but the deviation was not the proximate cause of the plaintiff’s alleged injuries. Additionally, the jury found that the defendant did not deviate from the standard of care in any other way in his treatment of the plaintiff and that the defendant obtained the plaintiff’s informed consent prior to performing the surgery. The plaintiff filed a motion to set aside the jury’s verdict, alleging that the jury’s verdict was contrary to and against the weight of the evidence. The court denied the motion, and the plaintiff appealed.

New York Court Finds an Issue of Fact Exists as to When Treatment Ended in a Medical Malpractice Case

Published on: January 2, 2019 | By DeFrancisco & Falgiatano

Under New York law, medical malpractice actions must be filed within two and a half years of the last date of treatment or they may be barred as untimely. Depending on the nature of the relationship between the patient and treatment provider, however, the last date of treatment may be up for debate.

Recently, the Supreme Court of New York held that an issue of fact existed as to whether an injured party’s treatment with a medical practice could be imputed to the surgeon that allegedly caused her harm. If you suffered injuries or illness due to insufficient medical care, it is in your best interest to consult a seasoned Syracuse medical malpractice attorney as soon as possible to determine whether you may be able to seek compensation from one or more of the medical providers that caused you harm.

Plaintiff’s Treatment

Reportedly, on March 18, 2011, the plaintiff underwent a bilateral mastectomy with a first surgeon and immediately after underwent a bilateral breast reconstruction with a second surgeon. The plaintiff subsequently contracted a MRSA infection at the surgical site, and receive treatment for the infection from the second surgeon until November 14, 2011. She also continued to receive treatment from the first surgeon at the practice that employed both surgeons until October 2012. On September 30, 2014, the plaintiff filed a medical malpractice lawsuit against both surgeons. The second surgeon filed a motion for summary judgment, arguing the plaintiff’s claims against her were barred by the two and a half year statute of limitations for medical malpractice actions in New York. The court denied the motion and the second surgeon appealed. On appeal, the court affirmed.

Shorter Wait Times Associated with Better Physician Reviews

Published on: November 21, 2018 | By DeFrancisco & Falgiatano

If you suspect that you or someone you love has been the victim of medical negligence by an ophthalmologist, you can potentially recover financial damages for your injuries. Our trusted Syracuse ophthalmologist negligence attorneys will review your case and create a legal strategy accordingly. We know that your time is valuable, which is why we try to resolve every case in an efficient manner.

The Study

People nowadays turn to online reviews before making a decision in many aspects of their lives, and choosing a doctor is no exception. There are a number of websites that permit patients to post reviews of their doctors. In a new study released by the University of Texas Health Science Center at San Antonio and Texas Tech University Health Sciences Center at Lubbock, researchers set out to examine how ophthalmologists are rated in online reviews and what factors led to higher ratings.

According to the data, 25 – 85 percent of doctors have an online profile on patient review website pages and 90 percent of those doctors have at least one rating. The study collected reviews about ophthalmologists, examining a total of 84,288 online reviews of 7,372 ophthalmologist profiles. Data shows that doctors who included a photo, biography and academic affiliation had higher ratings. In addition, shorter wait times and no history of malpractice also led to higher ratings.