Syracuse Medical Malpractice and Personal Injury Lawyer Blog

Court Explains Reliability of an Expert Report in a Neurological Malpractice Case

Published on: November 24, 2020 | By DeFrancisco & Falgiatano

In many medical malpractice cases in New York, the defendant will file a motion asking the court to dismiss the plaintiff’s claims prior to trial. If the defendant produces an expert report that adequately demonstrates that it should not be deemed liable, the motion will be granted unless the plaintiff produces a report in opposition showing that disputed issues remain that must be presented to a jury. The plaintiff’s report must comply with certain standards, though, otherwise it will be deemed inadequate to prove a trial must be held. What constitutes an adequate expert report in a medical malpractice case was the topic of a recent opinion issued by a New York court in a case in which the plaintiff pursued claims against the defendant that arose out of the treatment of a brain tumor. If you sustained injuries or lost a loved one because of inadequate care from a neurologist, it is advisable to speak to a Syracuse neurology malpractice attorney regarding your options for pursuing damages.

The Plaintiff’s Decedent’s Care and the Plaintiff’s Claims

Allegedly, the plaintiff’s decedent was treated by the defendants for a brain tumor. The decedent’s tumor was successfully removed; however, it recurred and ultimately led to the decedent’s death. The plaintiff, who was the decedent’s wife, filed a medical malpractice lawsuit against the defendants, arguing that their failure to properly monitor the decedent’s health constituted negligence and that it led to the recurrence and the failure to diagnose and treat the recurrence in a timely manner. The defendants moved for summary judgment, arguing the plaintiff had not demonstrated a departure from the standard of care. The court denied the motion, and the defendants appealed.

Reliability of an Expert Report

On appeal, the appellate court found in favor of the defendants and reversed the trial court ruling. Specifically, the appellate court stated that the trial court appropriately determined that the defendants established that the evidence, when taken at face value, demonstrated their right to judgment as a matter of law. In other words, the defendants’ expert affidavit argued that the defendants did not depart from the standard practice of medicine and relied on specific facts from the record, addressing each of the plaintiff’s claims.

New York Court Discusses Evaluating the Sufficiency of Expert Reports in Medical Malpractice Cases

Published on: November 17, 2020 | By DeFrancisco & Falgiatano

In New York, medical malpractice cases are often a battle of the experts. In other words, whether a plaintiff’s claims are ultimately successful or dismissed depends on the strength of the expert affirmations of both the plaintiff and the defendant. An expert report must not only be compelling, however, but it must also be based on competent information. The risks of relying on unsupported facts were demonstrated in a recent ruling out of New York in which the court affirmed the dismissal of the plaintiff’s hospital malpractice case due to the insufficiencies of the plaintiff’s expert’s report. If you or a loved one suffered harm due to negligent care in a hospital, you should meet with a Syracuse hospital malpractice attorney to discuss your case.

The Patient’s Care

It is reported that the plaintiff’s decedent, who was HIV positive, visited the emergency room of the defendant hospital with complaints of abdominal pain, nausea, and vomiting. He was in critical condition and was admitted to the intensive care unit. He was diagnosed with a small bowel obstruction, sepsis, and renal and respiratory failure. He was placed on a ventilator and underwent abdominal surgery, after which he was administered several doses of morphine.

Allegedly, the day after the surgery, the plaintiff’s decedent died. His death certificate listed cardiac arrest due to septic shock caused by a small bowel obstruction as the cause of death. The plaintiff filed a medical malpractice lawsuit against the defendant, alleging incompetent medical care caused the decedent’s death. The defendant filed a motion for summary judgment, which the court granted, and the plaintiff appealed.

New York Court Discusses When Medical Treatment that Constitutes Intentional Battery

Published on: November 14, 2020 | By DeFrancisco & Falgiatano

Typically, a plaintiff in a medical malpractice action will allege that the defendant acted in a careless manner, and therefore that the plaintiff’s harm was a consequence of the defendant’s negligence. In some instances, though, inappropriate medical care will result in other claims, such as intentional battery. It is important for an injured patient to understand the nature of his or her claims and the applicable time limitations to pursuing damages for different types of harm. Otherwise, a claim may be time-barred, as illustrated in an opinion issued by a New York court in a neurosurgery malpractice case. If you suffered harm due to an incompetent neurosurgeon, it is advisable to speak to a skillful Syracuse neurosurgery malpractice attorney regarding your possible claims.

The Plaintiff’s Allegations and Pleadings

It is reported that the plaintiff underwent a spinal fusion surgery, which was performed by the defendant. The surgery was intended to correct the plaintiff’s spondylolisthesis. Approximately two years after the surgery, the plaintiff filed a medical malpractice action against the defendant, alleging negligence and lack of informed consent claims. As to the negligence claim, the plaintiff alleged that the defendant had negligently repositioned or rotated the plaintiff’s pelvis during the surgery, causing her to suffer severe pain and permanent injuries. Following discovery, the defendant moved to have the plaintiff’s claims dismissed via summary judgment. The court granted the defendant’s motion, after which the plaintiff appealed.

Medical Treatment that Constitutes Intentional Battery

Upon review, the appellate court affirmed the trial court’s ruling. The court explained that despite the fact that the complaint only alleged the defendant acted negligently in performing the surgery, when a patient agrees to undergo a certain treatment for a condition but is subjected to a separate procedure for a completely different condition, it is clear that the deviation from the consent granted was intentional.

Court Discusses Location of Depositions in Medical Malpractice Cases in New York

Published on: November 10, 2020 | By DeFrancisco & Falgiatano

In New York, the plaintiff generally determines where to file a medical malpractice lawsuit, within certain parameters. Once a medical malpractice lawsuit is filed, any depositions in the case will usually be conducted in the same county where the case was instituted. A defendant can object to the location of a deposition, and under certain situations, the objections will be sustained, as demonstrated in a ruling recently set forth in a surgical malpractice case in New York. If you were harmed by an improperly performed surgery, you might be owed compensation, and you should meet with a capable Syracuse surgical malpractice attorney to discuss your rights.

Factual and Procedural Background of the Case

Allegedly, the defendant surgeon performed breast reconstruction surgery on the plaintiff. After the surgery, it became apparent that the defendant used the incorrect size implants, causing the plaintiff to suffer disfigurement and emotional trauma. The plaintiff then filed a medical malpractice case against the defendant surgeon and the defendant hospital where the procedure was performed.

It is reported that during the course of discovery, the plaintiff noticed the depositions of the defendant surgeon as well as several other doctors and medical professionals who provide care to cancer patients. The defendants moved for a protective order, asking the court to rule that the depositions must be conducted in New York County rather than the county in which the action was filed, which was 350 miles away. The trial court granted the defendant’s motion, and the plaintiff appealed.

New York Court Discusses Habit Evidence in Medical Malpractice Cases

Published on: November 3, 2020 | By DeFrancisco & Falgiatano

Typically, in a medical malpractice case, the injured party will rely on medical records and testimony to establish that the defendant’s behavior led to the patient’s harm. In some instances, however, in a case where there is a lack of concrete evidence, a defendant may try to avoid liability by presenting evidence regarding regular practices or procedures that demonstrate compliance with the standard of care. Recently, a New York court discussed when evidence of habit might be relevant and admissible in a case in which the plaintiff suffered harm due to a negligent cardiovascular surgeon. If you suffered injuries due to the carelessness of a heart doctor, it is wise to speak to a trusted Syracuse cardiovascular surgery malpractice attorney regarding your possible causes of action.

Facts of the Case

It is reported that the plaintiff underwent multiple cardiac surgeries, which were performed by the defendant cardiovascular surgeon. Following his procedures, he was placed on medications that reduced the likelihood of blood clots and he was directed to remain on the drugs indefinitely. Seven years later, he was ordered to undergo a colonoscopy and was directed to stop taking the medication prior to the procedure.

Allegedly, the plaintiff’s wife spoke to the defendant, who approved of the plaintiff stopping the medication. The plaintiff ceased taking the prescriptions and underwent the procedure. Five days later, he suffered a heart attack. The plaintiff then sued the defendant alleging, in part, that he was negligent in approving the stoppage of the medication. The case proceeded to trial, and a jury found in favor of the defendant, after which the plaintiff appealed.

New York Court Dismisses Medical Malpractice Case Due to Lack of Jurisdiction

Published on: October 28, 2020 | By DeFrancisco & Falgiatano

While most people choose to hire a competent attorney to represent them in medical malpractice cases, some decide to represent themselves to avoid the cost of attorneys’ fees. Medical malpractice cases are usually intricate, though, and handling them typically requires extensive knowledge and skill. As such, plaintiffs that represent themselves often end up with adverse outcomes, as demonstrated in a recent medical malpractice case in New York in which the pro se plaintiff’s claims were dismissed. If you were hurt by the incompetence of a medical professional, it is advisable to confer with a Syracuse medical malpractice attorney to assess the best manner to proceed in your case.

Background of the Case

It is reported that the plaintiff was treated at the defendant hospital in 2017 and 2018 for breast cancer. She subsequently suffered unspecified harm, after which she filed a medical malpractice case against the defendant in federal court. The plaintiff, who filed the case without the assistance of an attorney, filed a request to proceed in forma pauperis, which was granted. The defendant then filed a motion to dismiss the plaintiff’s case due to a lack of subject matter jurisdiction. The court granted the defendant’s motion but allowed the plaintiff leave to replead her case.

Jurisdiction Over Medical Malpractice Cases

The court explained that under the relevant federal law, an in forma pauperis action should be dismissed if it is frivolous, seeks compensation from a defendant that is immune from such relief, or fails to set forth a claim upon which relief may be granted. Thus, to avoid dismissal, a plaintiff must plead sufficient facts to state a claim for relief that is plausible on its face.

New York Court Affirms Dismissal of Medical Malpractice Claims Due to Lack of Evidence of Negligence

Published on: October 20, 2020 | By DeFrancisco & Falgiatano

In many instances in which a person dies due to a devastating medical issue, the person’s loved ones will pursue medical malpractice claims. Simply because a person dies due to the sudden progression of an illness does not necessarily mean that malpractice has occurred, however, and even in cases involving death, a plaintiff must nonetheless produce evidence sufficient to prove liability. This was illustrated in a recent medical malpractice case in New York in which the plaintiff’s medical malpractice and wrongful death claims were dismissed due to a lack of evidence that the defendants breached the standard of care. If you lost a loved one due to negligent medical care, it is prudent to speak to a Syracuse medical malpractice attorney to discuss your possible claims.

Facts of the Case

It is reported that the plaintiff’s decedent sought treatment for back pain on three occasions in January 2012. First, he visited his primary care physician with complaints of extreme back pain and was directed to visit the emergency room. He then went to the defendant medical center, where he was examined by the defendant doctor, who ruled out an aneurysm or tracheal deviation. Two days later, he returned to the defendant primary care physician and was directed to undergo an MRI. Following the MRI, he was directed to go to the emergency room.

Allegedly, the decedent then visited the defendant hospital, where he was diagnosed with an epidural abscess. Soon after, he became paralyzed from the waist down and ultimately died due to respiratory failure. The plaintiff filed a medical malpractice lawsuit against each of the treating providers, who, in turn, filed motions for summary judgment. The court largely granted the motions, and the plaintiff appealed.

New York Court Discusses Comparative Negligence in Failure to Diagnose Cases

Published on: October 15, 2020 | By DeFrancisco & Falgiatano

In most medical malpractice cases, the primary focus is on whether the defendant health care provider breached the standard of care and thereby caused the plaintiff harm. In some instances, though, a defendant seeking to refute liability will argue that an intervening cause, such as the plaintiff’s own negligence, was the actual cause of the plaintiff’s injuries. Recently, a New York court discussed comparative negligence in a case in which the plaintiff’s decedent lost her life to breast cancer due to a delayed diagnosis. If a doctor failed to diagnose you or someone you love with breast cancer in a timely manner, it is wise to speak to a capable Syracuse delayed diagnosis malpractice attorney regarding your rights.

The Plaintiff’s Decedent’s Treatment

It is reported that the plaintiff’s decedent presented to the defendant health clinic in December 2014, February 2015, and August 2015 with complaints of right breast pain. She was also treated at another hospital for breast pain in between May 2015 and December 2017. She was eventually diagnosed with breast cancer in March 2017. She underwent a double mastectomy in April 2017, after which there was no detectable cancer. In December 2017, however, she was informed her breast cancer had metastasized. She ultimately died of cancer at the age of 30 in 2019.

The plaintiff, who was the decedent’s partner, filed a medical malpractice case against the defendant, averring that its failure to properly diagnose and treat the decedent greatly decreased her chance of survival. A bench trial was held during which the court was asked to assess the issues of whether the defendant breached the standard of care in treating the decedent and whether any breach proximately caused her death.

New York Court Discusses Spoliation in Medical Malpractice Cases

Published on: October 12, 2020 | By DeFrancisco & Falgiatano

Medical malpractice cases are unusual in that a plaintiff will often have to rely on medical records obtained from the defendant to demonstrate the defendant’s liability. Thus, if a defendant loses or destroys a plaintiff’s treatment records prior to producing them, it can impair the plaintiff’s ability to prove the defendant was negligent. In such instances, a court may issue a sanction against the defendant. In a recent neurology malpractice case in New York, the court discussed spoliation and what a defendant must prove to avoid sanctions. If you were harmed by a negligent neurologist, you should speak to a capable Syracuse neurology malpractice attorney as soon as possible to avoid waiving your right to pursue damages.

Factual and Procedural History

It is alleged that the plaintiff was treated by the defendant neurologist at a medical center, and the defendant’s private office. The plaintiff ultimately suffered harm due to the progression of an epidural lipomatosis that the defendant failed to diagnose in a timely manner. Thus, the plaintiff instituted a lawsuit against the defendant, setting forth claims of medical malpractice and lack of informed consent.

It is reported that during the course of discovery, the plaintiff requested her treatment records from the defendant. The defendant produced a copy of the plaintiff’s chart but advised the plaintiff that she could not find the original chart. The plaintiff then filed a motion for sanctions for spoliation of evidence. The court granted the motion. The defendant later found the chart and moved for leave to renew her opposition to the plaintiff’s motion for sanctions. The motion was denied, however, and the defendant appealed.

Court Dismisses a New York Medical Malpractice Case for Lack of Subject Matter Jurisdiction

Published on: October 6, 2020 | By DeFrancisco & Falgiatano

In New York, a plaintiff who wishes to seek damages in a civil lawsuit may file claims in either state or federal court. Generally, a plaintiff will rely on the advice of an attorney in determining where a case should be filed and what facts and claims should be alleged in the initial pleading. When plaintiffs choose to represent themselves, though, they often lack the knowledge necessary to accurately determine the proper procedure, which can result in a dismissal of their claims regardless of the strength of their evidence. This was demonstrated in a recent case alleging ophthalmology malpractice, in which the court noted the plaintiff had set forth claims that elicited great sympathy but dismissed the plaintiff’s case regardless due to lack of jurisdiction. If you sustained injuries or loss of vision due to the careless acts of an eye doctor, you should engage a diligent ophthalmology malpractice attorney to assist you in your pursuit of damages.

Facts and Procedural History

It is reported that the plaintiff was treated with the defendant eye doctor for complaints of eye pain and vision disturbances. Throughout the course of his care, the plaintiff underwent a surgical procedure and over fifteen hundred laser shots. The plaintiff ultimately suffered a complete loss of vision in one eye and a substantial loss of vision in the other eye, which he alleged was due to harm to his retinas caused by the shots. He then filed a lawsuit against the defendant in federal court without the assistance of counsel.

Allegedly, in response to an order from the court, the plaintiff filed an amended complaint. The court reviewed the amended complaint, and upon finding that it lacked subject matter jurisdiction over the case, asked the plaintiff to show why the matter should not be dismissed. In the plaintiff’s response, he primarily restated his prior claims. Thus, the court dismissed the case.