Syracuse Medical Malpractice and Personal Injury Lawyer Blog

Court Analyzes Evidence Sufficient to Demonstrate a Triable Issue of Fact in a Medical Malpractice case in New York

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

Generally, in medical malpractice cases in the state of New York, the plaintiff will file a complaint and a bill of particulars setting forth the alleged wrongdoings of the defendant, and then the parties will engage in discovery. In many instances, after discovery is closed, the defendant will ask the court to dismiss the plaintiff’s claims via a motion for summary judgment. If the plaintiff can demonstrate the existence of a valid factual dispute as to whether the defendant committed malpractice, though, the plaintiff’s case may proceed to trial. Recently, a New York court discussed the evidence needed to demonstrate a triable issue of fact, in a case in which the plaintiff alleged that the defendant’s negligence led to the plaintiff’s mother’s death. If you or a loved one suffered harm at the hands of a primary care doctor, it is wise to meet with a trusted Syracuse primary care malpractice attorney to evaluate whether you have a viable claim.

Factual and Procedural History

It is reported that the plaintiff’s mother, who was 70-years-old, suffered a fall at home. She was then admitted to the hospital by the defendant primary care physician, who had been caring for her for eight years. Approximately two weeks later, the defendant transferred the mother to the defendant nursing and rehabilitation center to undergo physical therapy and strengthening. While she was admitted to the center, the mother’s condition deteriorated, and after three weeks, she was transferred back into the hospital.

Allegedly, she died one week later from cardiopulmonary arrest, with urosepsis as a significant factor that contributed to her demise. The plaintiff then filed a medical malpractice lawsuit against the defendants, alleging that her mother was injured during her admission to the defendant center. The defendants each filed motions for summary judgment, which were denied. The defendant primary care physician then appealed. Continue Reading ›

New York Court Discusses Notice Requirements in Medical Malpractice Claims Against the State

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

Even if patients suffer devastating losses as a result of incompetent medical care, they may be denied the recovery of compensation if they do not abide by their duties under the law. For example, if a patient suffers harm in a facility that is considered a State actor, the patient must provide the State with notice of his or her claims within a certain time frame, or they may waive the right to pursue claims against the State. In some instances, though, a court may grant an exception to the notice requirement, as demonstrated in a recent New York birth injury case. If your child suffered harm during delivery, it is wise to confer with a skillful Syracuse birth injury lawyer to discuss your legal rights and duties.

Factual and Procedural History

Allegedly, the plaintiff-mother visited the defendant hospital, which is owned by the State, to give birth. During the delivery of the plaintiff-mother’s son, the doctors employed by the defendant used forceps, which caused injuries that ultimately led to the infant’s death. The plaintiff-mother and plaintiff-father then filed a motion for leave seeking permission to file a late claim, pursuant to the Court of Claims Act, which dictates the manner in which claims against the State must proceed. The trial court denied the motion, after which the plaintiffs appealed. On review, the appellate court reversed the trial court ruling, granting the plaintiffs leave.

Notice Requirements Under the Court of Claims Act

Pursuant to the Court of Claims Act, a court has the discretion to permit a plaintiff to file a late claim. In determining whether to grant such permission, the court will weigh several factors, including whether the State had notice of the key facts of the claim, whether the claim seems to have merit, whether the Plaintiff has any other remedy, and whether the State had a reasonable opportunity to investigate the circumstances out of which the claim arose. The court will also look at whether the failure to serve a timely notice of the claim upon the State caused substantial prejudice, and whether the plaintiff’s delay in filing the claim was reasonable. There is no one factor that is controlling, and the absence or presence of any factor is not determinative.

Sufficiency of Expert Reports in Medical Malpractice Cases in New York Discussed

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

While it is uncommon, men can be diagnosed with breast cancer. Regardless of whether a person diagnosed with breast cancer is male or female, it is a serious disease that requires aggressive treatment. As such, it is critical to obtain an accurate diagnosis as promptly as possible. Thus, a doctor that fails to diagnose a male patient with breast cancer in a timely manner may be sued for medical malpractice. Recently, a New York appellate court discussed the standards imposed on expert affidavits in support of and in opposition to a motion for summary judgment in a case in which the plaintiff sued his primary care physician for failing to diagnose his breast cancer. If you sustained an injury or suffered the worsening of illness due to your doctor’s failure to provide you with the correct diagnosis, it is prudent to speak to a dedicated Syracuse primary care malpractice lawyer to assess your case.

Factual History

It is alleged that the plaintiff was a patient of the defendant primary care physician and regularly treated with her at the defendant practice. The plaintiff, who is male, regularly complained of breast pain and other breast-related symptoms. The defendant did not order diagnostic imaging or any other tests, however. Ultimately, the plaintiff was diagnosed with breast cancer. He then filed a medical malpractice case against the defendants due to their failure to diagnose him when his symptoms first presented. Following discovery, the defendants filed a motion to dismiss, which the plaintiff opposed. The trial court denied the motion, and the defendants appealed. Following a review, the appellate court affirmed the denial.

Sufficiency of Expert Reports in Medical Malpractice Cases in New York

In seeking a dismissal of a plaintiff’s case via summary judgment, a defendant bears the burden of proving, prima facie, that she or he did not depart from the standard of care or that if a departure did occur, it did not proximately cause the plaintiff’s harm. In the subject case, the court found that the defendants’ expert affidavit only addressed the issue of whether the defendants deviated from the applicable standard. In other words, it only briefly mentioned causation in a conclusory manner. Continue Reading ›

Court Discusses the Scope of Permissible Discovery in Medical Malpractice Cases in New York

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

In medical malpractice cases, even if plaintiffs believe they were harmed by negligent medical care, they need evidence to support their claims. In many instances, the evidence sought is testimony from the parties that cared for or observed the care of the plaintiff. Thus, if a person with information regarding the plaintiff’s treatment and symptoms refuses to testify, it can frustrate the plaintiff’s attempts to obtain relevant information. Recently, a New York appellate court discussed the scope of permissible discovery in a hospital malpractice case in which a non-defendant physician refused to answer certain questions during his deposition. If you were injured because of inadequate care in a hospital, you might be owed compensation and should contact a capable Syracuse hospital malpractice attorney to evaluate your possible claims.

History of the Case

Allegedly, the plaintiff was a patient at the defendant hospital. Due to the negligence of the defendant and numerous staff members, who were also named as defendants, he suffered significant injuries, including pressure ulcers and an amputation of his left leg above the knee. As such, the plaintiff filed a medical malpractice lawsuit against the defendants.

It is reported that during the discovery phase of the case, the plaintiff deposed a doctor who worked in the division of wound healing at the defendant hospital. The doctor, however, refused to answer certain questions. The plaintiff’s attorney then obtained an order from the court, allowing him to continue the deposition of the witness. The witness then sought a protective order asking the court to limit the scope of the deposition, which the court granted as well. The plaintiff then appealed the second order.

New York Court Discusses Elements of a Lack of Informed Consent Claim

Published on: September 8, 2020 | By DeFrancisco & Falgiatano

In New York, there are many acts and omissions that may constitute grounds for a medical malpractice claim. For example, if a doctor neglects to adequately inform a patient regarding the risks and potential consequences of a procedure, he or she may be liable for failing to obtain the patient’s informed consent. In some instances, though, the complete failure to get permission from a patient prior to performing surgery may constitute a tort other than malpractice. This was shown in a recent New York surgical malpractice case in which the court discussed the elements of a lack of informed consent claim as opposed to a claim for assault and battery. If you suffered harm because of a surgical error, you should speak to a committed Syracuse surgical malpractice attorney as soon as possible to evaluate what claims you may be able to assert in a civil lawsuit.

Factual and Procedural History

It is reported that the plaintiff underwent a surgical repair of a hernia that was performed by the defendant doctor at the defendant hospital. After the procedure, the plaintiff suffered injuries and complications. He then filed a medical malpractice lawsuit against the defendants alleging, in part, that the defendant doctor failed to obtain his informed consent by failing to advise him of the potential consequences of the surgery, and performing procedures that the plaintiff did not agree to undergo. The defendant filed a motion to dismiss, arguing that the plaintiff’s claims sounded in assault and battery rather than medical negligence. The trial court denied the defendant’s motion, and he appealed.

Elements of a Lack of Informed Consent Claim

Pursuant to New York law, a medical professional may be deemed liable for an intentional act of battery, instead of medical malpractice, if the professional performs a procedure for which the plaintiff did not provide any consent at all. If a surgeon merely exceeds the scope of the consent provided by a plaintiff, however, any acts that fall outside of the permission granted by the plaintiff may form the basis of a valid lack of informed consent claim.

Dismissal of Medical Malpractice Case in New York Demonstrates the Need for Expert Reports

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

It is the well-established law in New York that a plaintiff that wishes to recover damages through a medical malpractice case against a defendant must do more than merely allege that the defendant caused the plaintiff’s harm. Rather, in all cases except those involving blatant negligence, the plaintiff must produce an expert report that establishes the defendant’s liability. Thus, if a plaintiff fails to produce expert testimony, it will typically result in the dismissal of his or her claims, as shown in a recent ophthalmology malpractice case in New York. If you sustained injuries due to negligent care rendered by an eye doctor, it is advisable to confer with a seasoned Syracuse ophthalmology malpractice attorney to assess your possible claims for damages.

Facts of the Case

It is reported that the plaintiff was treated at a facility that was funded by the federal government for retinopathy and macular edema in both eyes. The doctors at the facility routinely provided the plaintiff with injections in both eyes. Following one of the injections in 2016, his left eye became swollen, and he began experiencing light sensitivity and pain. His symptoms lasted about ten days and then resolved. Following injection in 2017, however, he again experienced adverse effects. He was then diagnosed with dry eye syndrome and a disorder that caused opacities in both eyes.

Allegedly, the doctor who administered the injections then advised the plaintiff that it was possible that he had allergic reactions to the injections. The plaintiff then filed a medical malpractice lawsuit against the federal government in federal court, alleging the negligence of the doctors at the facility caused him to suffer pain, obstructions to his vision, and diminished sight. The defendant filed a motion for summary judgment, which the court granted due to the plaintiff’s failure to provide an expert report.

New York Court Discusses Statute of Limitations for Wrongful Death Claims in Malpractice Suits

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

Medical malpractice cases in New York, like all other New York cases, must be filed within the timeframe proscribed by the statute of limitations, otherwise, the plaintiff may lose the right to recover compensation. While medical malpractice claims must be commenced within two and a half years from the date of harm, when a lawsuit is instituted after the injured party’s death, there may be a dispute over when the statute of limitations begins to run. This was demonstrated in a recent New York case in which the plaintiff’s decedent died due to complications from cancer. If you were diagnosed with cancer and subsequently sustained injuries due to the carelessness of the doctor responsible for your treatment, it is important to speak to a skillful Syracuse oncology malpractice attorney promptly to avoid waiving your right to recover damages.

Factual and Procedural History

Allegedly, the plaintiff’s decedent was treated by the defendants for cancer. He ultimately passed away due to complications related to his cancer in August 2015. In May of 2016, the plaintiff instituted an action against the defendants alleging claims of medical malpractice and wrongful death arising out of their treatment of the decedent. Specifically, the complaint alleged the defendants were negligent during the decedent’s hospitalization in July and August 2013. The defendants filed a motion to dismiss the plaintiff’s lawsuit, arguing that her claims were barred by the statute of limitations. The trial court granted the motion, and the plaintiff appealed.

Statute of Limitations in New York for Wrongful Death Claims in Malpractice Suits

Under New York law, when someone entitled to pursue a claim dies, the representative of his or her estate can pursue a claim on behalf of the estate within one year of the person’s death. In the subject case, the plaintiff demonstrated that she was granted letters of administration in February of 2016, and she commenced the claim by May of 2016. As such, the appellate court ruled that she pursued her claims within the time afforded by law.

New York Court Discusses Dismissal of Medical Malpractice Claims for Failure to Prosecute

Published on: August 18, 2020 | By DeFrancisco & Falgiatano

Generally, in a medical malpractice case in New York, it is the plaintiff’s duty to move the case forward. Thus, if the plaintiff fails to pursue his or her claims against the defendant, it may result in a dismissal. Recently, a New York court discussed when the dismissal of a medical malpractice claim for failure to prosecute is warranted in a case in which the plaintiff failed to comply with an order directing her to file a note of issue. If you were hurt by reckless or negligent medical care, it is in your best interest to speak to a Syracuse medical malpractice attorney to discuss what steps you must take to prove liability for your harm.

Facts and Procedural History of the Case

The facts of the case are sparse. It is reported, however, that the plaintiff filed a medical malpractice lawsuit against numerous defendants. Ultimately, the trial court issued an order directing the plaintiff to file a note of issue. The plaintiff did not comply with the court’s directive, however. As such, the defendants each individually filed motions to have the plaintiff’s claims against them dismissed, and the plaintiff filed a motion to extend the time to file a note of issue. The trial court granted the defendants’ motions, thereby terminating all of the plaintiff’s claims. The plaintiff then appealed.

Dismissal of a Case for Failure to File a Note of Issue

On appeal, the court reversed the trial court ruling and granted the defendant’s motion for additional time to file the note of issue. The court noted that while a plaintiff’s failure to abide by a court order directing her to file a note of issue may provide grounds for the dismissal of a complaint, a court is barred from dismissing an action based on the plaintiff’s failure to prosecute claims against the defendant unless certain statutory conditions are met. For example, under the applicable statute, a 90-day demand to file a note must be served on the plaintiff. Thus, either the defendant or the court must file a 90-day demand to file a note of issue before a court is permitted to dismiss a lawsuit for failure to prosecute.

New York Court Denies Petition to Serve Late Notice of Medical Malpractice Claim

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

While delays may greatly impair a patient’s health, they may also impair the patient’s right to pursue damages for negligent treatment. For example, a patient harmed by a doctor’s delay in prescribing diagnostic testing may lead to a delayed diagnosis, which can cause irreparable harm to the patient’s health. Similarly, if a patient that has been harmed by a doctor’s failure to provide a timely diagnosis does not provide the defendant with the proper notice of a potential claim or pursue claims against the defendant in a timely manner, it may permanently impair the plaintiff’s ability to recover damages, as demonstrated in a recent hospital malpractice case. If you were harmed by the careless acts of hospital employees, it is advisable to confer with a talented Syracuse hospital malpractice attorney as soon as possible to avoid waiving your right to pursue compensation.

Facts of the Case

It is reported that the plaintiff visited the defendant hospital with complaints of breast symptoms. While she was there, she was examined by the defendant gynecologist and released. The plaintiff was ultimately diagnosed with breast cancer four months later. She then proceeded to file a medical malpractice claim against the defendants, arguing they caused her to suffer significant harm by failing to diagnose her in a timely manner and failing to refer her to obtain the diagnostic testing required to assess an accurate diagnosis.

Allegedly, however, the plaintiff did not file her lawsuit until approximately nine months after the alleged harm. As such, she petitioned the court for leave to serve late notice of her claim. The trial court granted the plaintiff’s petition, after which the defendants appealed. On appeal, the court reversed the trial court ruling and dismissed the plaintiff’s claims.

New York Court Discusses Evidence Demonstrating Medical Malpractice

Published on: August 7, 2020 | By DeFrancisco & Falgiatano

In some instances, the negligence of a medical professional is so egregious that it is clear it constitutes medical malpractice. In such cases, while it may not be disputed that the standard of care was breached, there may be disagreement as to which party was liable for the breach, and ultimately for the plaintiff’s harm. This was demonstrated in a recent gynecologic malpractice case in which the plaintiff suffered harm due to a one year delay in receiving the results of a breast biopsy. If you suffered harm due to a gynecological error, it is prudent to speak with a zealous Syracuse gynecologic malpractice attorney to discuss your potential claims.

Facts of the Case

It is reported that the majority of the facts of the case are undisputed. Specifically, the plaintiff was a patient of the defendant gynecologist. Following her annual visit, she was referred to the defendant radiologist for a biopsy. After the biopsy was performed, the specimen was sent to the defendant lab, where it was analyzed and determined to show cancerous cells. The defendant lab faxed the test results to the defendant physician that performed the biopsy, who then faxed a report to the defendant gynecologist, stating that the procedure had been performed and reporting the positive findings.

Allegedly, approximately one year later, the defendant gynecologist again referred the plaintiff for a biopsy, after which he was faxed the pathology report from the initial biopsy. He then finally advised the plaintiff of the results of her initial biopsy. The plaintiff subsequently filed a medical malpractice lawsuit against the defendants. The defendant lab filed a motion to dismiss, arguing that the plaintiff could not recover against it under the undisputed facts of the case. The court ultimately denied the motion.