Syracuse Medical Malpractice and Personal Injury Lawyer Blog

New York Court Affirms Dismissal of Lack of Informed Consent Claim

Published on: February 18, 2021 | By DeFrancisco & Falgiatano

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 ›

New York Court Grants Summary Judgment in Favor of Defendants in Surgical Malpractice Case

Published on: February 15, 2021 | By DeFrancisco & Falgiatano

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 Court Discusses Doctor-Patient Relationships in the Context of Medical Malpractice Claims

Published on: February 12, 2021 | By DeFrancisco & Falgiatano

If a doctor incorrectly performs professional duties and a person suffers harm as a result, the doctor may be held liable for medical malpractice. A person must establish numerous elements to successfully recover under a medical malpractice claim, including the existence of a patient-doctor relationship, as liability will not be imposed in the absence of such a correlation. In a recent New York ruling issued in an emergency room malpractice matter, a court discussed what constitutes sufficient proof of an implied patient-doctor relationship to withstand summary judgment. If you suffered harm because of inadequate treatment by emergency room physicians, it is wise to meet with a Syracuse emergency room malpractice attorney to evaluate your possible claims.

The Decedent’s Treatment

Allegedly, the plaintiff’s decedent visited the emergency room of the defendant hospital, where he was seen by the first and second defendant doctors, one of whom had a conversation with the third defendant doctor about the decedent’s health. The decedent underwent imaging tests but was ultimately discharged. He died a day after his visit to the hospital due to cardiorespiratory failure caused by bilateral pulmonary embolisms.

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendants, alleging their negligent care led to the decedent’s death. The defendants separately filed motions for summary judgment, and the third defendant doctor argued in part that he could not be held liable because no patient-doctor relationship existed between him and the decedent. The trial court denied the third defendant doctor’s motion, and he appealed. Continue Reading ›

New York Court Discusses Late Notice of Medical Malpractice Claims Against Public Corporations

Published on: February 4, 2021 | By DeFrancisco & Falgiatano

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 ›

New York Court Discusses Summary Judgment in Medical Malpractice Cases

Published on: January 27, 2021 | By DeFrancisco & Falgiatano

In many medical malpractice cases in New York, the defendant will move to dismiss the plaintiff’s claim via summary judgment by arguing that no factual disputes remain and that upon review of the evidence, it is clear that the defendant did not harm the plaintiff. Usually, the primary basis for the defendant’s assertions is an affidavit from a medical expert. A plaintiff can argue in opposition to such a motion, though, by providing the report of its own expert to refute the defendants. Recently, a New York court issued an opinion discussing the grounds for granting or denying summary judgment in a case arising out of cardiovascular malpractice. If you sustained harm while treating for heart issues, you should speak to a knowledgeable Syracuse cardiology malpractice attorney about your potential claims.

The Decedent’s Care

It is reported that the decedent visited the defendant cardiologist with complaints of shortness of breath, lightheadedness, and other issues. The defendant performed a series of tests on the decedent and referred him for additional testing. After an echocardiogram revealed that the decedent was suffering from mildly dilated valves, the defendant advised him to follow up in one year.

Allegedly, the decedent never returned, and approximately two years after his initial visit, he died due to a ruptured aortic aneurysm. The plaintiff then filed a lawsuit against the defendant, alleging claims of medical malpractice. The defendant filed a motion for summary judgment, which the court denied. He then appealed. Continue Reading ›

Court Discusses Assessing Expert Qualifications and Reports in Medical Malpractice Cases in New York

Published on: January 20, 2021 | By DeFrancisco & Falgiatano

In medical malpractice lawsuits filed in New York, both plaintiffs and defendants must submit expert reports in support of their respective positions. Generally, the success of either party is determined by the strength of its expert report. Numerous factors are weighed in determining whether an expert report is sound and compelling, though, as discussed in a ruling issued by a New York court recently, in a case in which the plaintiff alleged harm due to emergency room malpractice. If you were harmed due to the negligent actions of an emergency room physician, you could be owed substantial damages, and it is in your best interest to speak to a skillful Syracuse emergency room malpractice attorney promptly.

The Plaintiff’s Care

It is reported that the plaintiff visited the emergency department of the defendant hospital in February 2013 with complaints of stomach pain. He was evaluated and discharged with a diagnosis of gastritis. He then sought treatment from the defendant primary care physician in August and September 2013, reporting epigastric pain, and was advised he had gastroesophageal reflux disease.

Allegedly, the plaintiff then returned to the defendant’s emergency room in March 2014, when he underwent a procedure to repair a biliary leak. He underwent a second procedure in May 2014, during which he had a gallstone removed. He was diagnosed with choledocholithiasis. He filed a lawsuit against the defendants alleging, in part, that the defendant hospital committed malpractice by releasing him prior to ruling out gallstones. The defendants filed motions for summary judgment, which were granted, and the plaintiff appealed. Continue Reading ›

New York Court Illustrates the Difference Between Ordinary Negligence and Medical Malpractice

Published on: January 16, 2021 | By DeFrancisco & Falgiatano

If a patient suffers harm at the hands of a doctor, people often assume that the doctor committed malpractice. While in many instances the assumption is accurate, doctors can also hurt people through ordinary carelessness, and in such cases, a medical malpractice claim would not be appropriate. The difference between standard negligence claims and those asserting medical malpractice was the topic of a recent New York opinion in a matter in which the plaintiff asserted she was harmed by the defendant doctor at birth. If you or your child suffered a birth injury, it is important to meet with a knowledgeable Syracuse birth injury attorney as soon as possible to discuss your rights.

The Plaintiff’s Allegations

It is reported that the plaintiff, who was born in 1999, suffered harm after her birth during the transfer from the delivery room. Specifically, she was injured when the defendant obstetrician tossed her to another person. As such, she filed a lawsuit against the defendant on January 6, 2020, alleging claims of negligence. The defendant moved for dismissal, arguing that the plaintiff’s claims sounded in medical malpractice and that she failed to pursue her claims within the statute of limitations or file a required certificate of merit.

Ordinary Negligence Versus Medical Malpractice Under New York Law

Upon review of the pleadings, the court found in favor of the plaintiff. The court explained that, under New York law, the difference between malpractice and ordinary negligence hinges on whether the harmful omissions or acts involve an issue of medical science or art that requires special skills that an ordinary layperson will not typically possess, or whether the behavior at issue can instead be evaluated on the basis of the factfinder’s common everyday experience. Continue Reading ›

New York Court Discusses Demonstrating Medical Malpractice Via Expert Opinions

Published on: January 12, 2021 | By DeFrancisco & Falgiatano

Neurological disorders can cause grave harm, and in many instances, that harm is markedly increased if a patient is not properly diagnosed in a prompt manner. Therefore, if a doctor fails to take the measures necessary to accurately determine a plaintiff’s diagnosis, it may provide grounds for a medical malpractice claim. Claims that a medical professional acted negligently must be supported by competent evidence, though, otherwise they could be dismissed. In a recent ruling arising out of a neurology malpractice claim, a New York court explained what constitutes adequate expert testimony to avoid dismissal via summary judgment. If you suffered harm due to the negligent acts of a neurologist, you should confer with a Syracuse neurology malpractice attorney to determine your options.

The Plaintiff’s Injuries

Reportedly, the plaintiff treated with the defendant neurologist in July 2015. He was diagnosed with a seizure disorder and prescribed medication. He had subsequent visits in August and October of 2015, during which his diagnosis remained unchanged. At his final visit with the defendant in December 2015, a test indicated that the plaintiff suffered memory loss. Thus, the defendant ordered a blood test to rule out a number of disorders, including syphilis.

It is alleged that the plaintiff did not submit to the blood test and instead began treating with another neurologist. In March 2016, the plaintiff advised the defendant that he had not taken the blood test and did not intend to take it. His health continued to decline, and he was diagnosed with neurosyphilis in June 2016. He then filed a medical malpractice action against the defendant, who ultimately moved for summary judgment. The court granted the defendant’s motion, and he appealed. Continue Reading ›

Court Issues Order Compelling Remote Depositions in Medical Malpractice Case in New York

Published on: January 6, 2021 | By DeFrancisco & Falgiatano

The COVID-19 pandemic has drastically altered many aspects of people’s lives, including how medical malpractice lawsuits are litigated. Thus, since the Spring of 2020, courts have grappled with the issue of how to protect the rights of parties involved in cases involving medical negligence claims while remaining within the confines of the law. Recently, a New York court issued an opinion addressing the discrete issue of whether to compel a party to sit for a remote deposition in a case arising out of gynecologic malpractice. If you sustained losses due to a negligent gynecologist, it is advisable to speak to a skillful Syracuse gynecologic malpractice attorney regarding your rights.

History of the Case

It is alleged that the plaintiff’s decedent treated the defendant gynecologist for an unspecified issue. She subsequently lost her life due to complications arising from her treatment, which the plaintiff alleged was due to the defendant’s negligence. Thus, the plaintiff filed a medical malpractice lawsuit against the defendant. The case progressed, but due to the COVID-19 pandemic, the plaintiff was reluctant to conduct depositions in person. Thus, she filed a motion seeking to compel the defendant to conduct the depositions remotely. The defendant objected to the motion, but the court ultimately ruled in favor of the plaintiff.

The Right to Remote Depositions

The court noted that, prior to the COVID-19 pandemic, most depositions were conducted in person. While the New York procedural rules are based on the assumption that depositions would be conducted in person, parties can stipulate to allow for depositions to be conducted remotely. Even if parties do not agree to remote depositions, though, the rule that depositions should take place in person is not rigid.

New York Court Reverses Order Denying Summary Judgment in a Cardiology Malpractice Case

Published on: December 21, 2020 | By DeFrancisco & Falgiatano

Tragically, many people suffer devastating complications following routine surgical procedures. In some instances, the complications are the result of medical malpractice and could have been avoided by the exercise of due care, but in others, they are merely unfortunate and unexpected side effects. Recently, a New York court discussed the burden of proof imposed on a plaintiff in an opinion delivered in a cardiology malpractice case where the plaintiff’s decedent died following a routine eye procedure. If you suffered harm due to a careless cardiologist, you might be owed damages, and it would benefit you to meet with a trusted Syracuse cardiology malpractice attorney to discuss your options.

The Plaintiff’s Losses and Claims

It is reported that the plaintiff’s decedent underwent eye surgery, which was performed at the defendant outpatient facility. Prior to the procedure, he underwent a physical examination with the defendant primary care physician. Sadly, the decedent suffered unexpected complications and died shortly after the procedure. The plaintiff then commenced a medical malpractice lawsuit against the defendant facility and primary care physician, as well as the decedent’s cardiologist. The defendants moved to have the claims against them dismissed via summary judgment, but the court denied their motions. They then appealed.

Establishing Liability in a Medical Malpractice Case

On appeal, the court reversed the trial court rulings. The court noted that to prove the liability of a doctor, a plaintiff must prove that the doctor departed from the accepted standard of practice and that the departure directly caused the plaintiff’s losses. A defendant that wishes to have medical malpractice claims dismissed via summary judgment must produce prima facie evidence that he or she did not depart from the accepted practice of medicine or that the departure did not proximately lead to the plaintiff’s harm.