Syracuse Medical Malpractice and Personal Injury Lawyer Blog

New York Court Dismisses Medical Malpractice Claim for Failure to Prosecute

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

There are several elements to a successful medical malpractice claim. In other words, a plaintiff must not only prove the defendant acted negligently, and in doing so, harmed the plaintiff but must also comply with the procedural rules for pursuing damages. All too often, however, the plaintiff’s claims are dismissed due to procedural defects, as illustrated in a recent New York ruling where the court dismissed the plaintiff’s psychiatric malpractice claim due to failure to prosecute. If you were harmed by a mental health professional’s failure to provide you with a proper diagnosis, you could be owed compensation and should speak to a knowledgeable Syracuse medical malpractice attorney regarding your rights.

The Plaintiff’s Harm and Allegations

Allegedly, the plaintiff filed a medical malpractice lawsuit against numerous mental health providers, arguing that they departed from the standard of medical care and acted beyond the bounds of professionalism. Specifically, he alleged they failed to provide him with an accurate diagnosis, failed to take heed of his prior diagnoses, declined to speak to his treating psychiatrist, and refused to institute appropriate procedures, treatment, and care. The court ultimately dismissed his complaint due to his failure to comply with the discovery rules and orders issued by the court regarding the prosecution of the case. He then appealed.

Dismissal for Failure to Prosecute

On appeal, the court noted that Federal Rules of Civil Procedure 37 and 41(b) expressly provide for dismissals for failing to prosecute and failing to comply with discovery orders. A court reviewing dismissals pursuant to these rules will only reverse them if the trial court demonstrated an abuse of discretion. In conducting its review, the courts must be mindful that dismissal under Rule 41(b) for failure to prosecute is a harsh sanction that is only to be used in extreme situations.

New York Court Explains Statements Permitted by Attorneys During Birth Injury Trials

Published on: December 13, 2020 | By DeFrancisco & Falgiatano

The job of a lawyer in a medical malpractice case is to argue that the evidence presented demonstrates liability or exonerates a defendant. Although counsel is granted broad leeway in how they describe the testimony offered at trial, they cannot couch evidence or otherwise make statements that are prejudicial to the opposing party. Recently, a New York court issued an opinion explaining the parameters of admissible statements in matters involving medical negligence in a birth injury case. If your child sustained an injury before or during birth, you could be owed significant damages, and it is prudent to meet with a skillful Syracuse birth injury attorney.

The Plaintiff’s Care and Subsequent Claims

It is reported that the plaintiff, who was pregnant, received prenatal care from the defendant obstetrician-gynecologist throughout the course of her pregnancy. She underwent an ultrasound at 20 weeks, which revealed that she had a low lying placenta. A second ultrasound a month later did not report the same result, however. Her pregnancy progressed normally, but she experienced sudden bleeding one day and went to the hospital, where she underwent an emergency caesarian section.

Allegedly, the plaintiff’s infant was born in a state of distress and sadly died four hours later. The plaintiff filed a medical malpractice lawsuit against the defendant, arguing that the defendant’s departure from the standard of care led to her child’s harm. A trial was held, and the jury found in favor of the defendant. The plaintiff filed a motion asking the court to set aside the verdict, which the court denied. The plaintiff then appealed.

New York Court Discusses Habit Testimony in Medical Malpractice Cases

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

Surgeons often perform multiple procedures per week, and in many instances, they cannot recall specific surgeries or what techniques or methods they employed during them. Thus, if a patient suffers harm during surgery, the doctor may not have independent knowledge of his or her conduct during the surgery, as required to demonstrate compliance with the standard of care. In some instances, though, a doctor accused of medical malpractice may rely on habit testimony to avoid liability, but such testimony is only permissible in limited circumstances. The admission of habit testimony was the topic of a recent New York ruling in a matter arising out of surgical malpractice. If you were harmed during a surgical procedure, you might be owed compensation, and it is advisable to speak to a knowledgeable Syracuse surgical malpractice attorney.

The Plaintiff’s Harm and Subsequent Claims

Allegedly, the defendant performed a LAP-Band procedure on the plaintiff. The plaintiff suffered a perforated bowel during the procedure, which was not discovered until days later, when she was recovering in the hospital. She then underwent a second procedure to repair the perforation. The plaintiff filed a medical malpractice lawsuit against the defendant, arguing that his failure to prevent and identify the bowel perforation during the initial procedure constituted medical negligence. After discovery closed, the defendant filed a motion for summary judgment, arguing that he did not depart from the applicable standard of care. The trial court granted the motion, and the plaintiff appealed.

Habit Testimony in Medical Malpractice Cases

In support of his motion for summary judgment, the defendant submitted an affidavit from a medical expert that opined the defendant did not deviate from the standard. The court noted, however, that the expert’s opinion relied largely on improper evidence.

New York Court Discusses Pursuing Medical Malpractice Claims in Forma Pauperis

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

While many people know that criminal defendants are afforded numerous rights under the law, they may not be aware that civil litigants have rights as well. For example, people are not precluded from pursuing medical malpractice claims simply because they cannot afford to hire an attorney or pay filing fees. A plaintiff seeking to pursue claims in forma pauperis must meet certain conditions, though, and the court may dismiss any claims that do not comply with the applicable standards. Recently a New York court issued a ruling discussing the right to pursue pro se claims in forma pauperis in a case arising out of harm allegedly suffered at a hospital. If you were harmed while receiving treatment in a hospital, it is prudent to meet with a Syracuse hospital malpractice attorney to discuss your rights.

The Plaintiff’s Alleged Harm and Claims

Allegedly, the plaintiff visited the defendant hospital for medical treatment. While she was at the hospital, she was administered medication prior to being warned of the side effects and risks associated with its use. She then suffered a serious negative reaction to the medication. She filed a medical malpractice lawsuit against the defendant in a federal court sitting in New York. The plaintiff filed the complaint without the assistance of an attorney and filed a motion requesting permission to proceed in forma pauperis. The court granted her motion but ultimately dismissed her claims due to a lack of subject matter jurisdiction.

Pursuing Medical Malpractice Claims in Forma Pauperis

Under federal law, a court must dismiss an in forma pauperis action on its own accord if it is malicious or frivolous, does not state a claim for which relief may be granted, or seeks damages from a party that is immune to liability. While pleadings filed without the assistance of an attorney are held to less stringent standards than those drafted by trained lawyers, a pleading must nonetheless comply with the applicable rules of substantive and procedural law. This includes the requirement that a plaintiff must establish that a court has jurisdiction over a matter.

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.