Syracuse Medical Malpractice and Personal Injury Lawyer Blog

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.

Court Discusses Grounds for Modifying a Jury’s Damages Award in a Medical Malpractice Case in New York

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

Typically, a plaintiff pursuing claims for medical malpractice will ask a jury to assess both liability and what damages should be awarded to the plaintiff. While determining what constitutes appropriate compensation for pain and suffering is within the purview of the jury, if a jury issues a damages award that does not align with the law or evidence, the court may modify the award. The grounds for modifying damages awarded by a jury were discussed in a recent surgical malpractice case in New York in which the defendant filed a motion to reduce the damages the jury awarded the plaintiff. If you suffered an injury due to a negligently performed surgery, you may be able to recover damages for your harm and should speak to a diligent Syracuse surgical malpractice attorney.

Procedural History of the Case

It is reported that the defendant perforated the plaintiff’s small intestine while performing an endoscopy on the plaintiff, after which the plaintiff required a surgical procedure to repair the perforation. The plaintiff then filed a medical malpractice lawsuit against the defendant. At trial, the plaintiff’s expert testified that the plaintiff had a permanent scar on her abdomen that was almost eight inches long, and had an increased risk of developing hernias, bacterial overgrowth in her abdomen, and bowel obstructions due to the surgery.

Allegedly, the jury found in favor of the plaintiff, awarding the plaintiff $1,500,000 for past pain and suffering and $1,000,000 for future pain and suffering. The defendant filed a motion to set aside the jury’s verdict as excessive unless the plaintiff agreed to stipulate to lower damages. The trial court granted the motion, and the plaintiff appealed.

New York Court Discusses Grounds for Granting Leave to Renew Opposition to Dismissal of a Medical Malpractice Case

Published on: July 23, 2020 | By DeFrancisco & Falgiatano

It is not uncommon for a defendant in a medical malpractice case in New York to seek dismissal of the plaintiff’s case via a motion for summary judgment. When a plaintiff’s claims are dismissed by a court via summary judgment, the plaintiff may be able to appeal if the evidence of record demonstrates the court ruled incorrectly. If a plaintiff fails to produce evidence in opposition to a motion for summary judgment, though, he or she must file a motion for leave to renew to ask the court to consider the new evidence. In a recent emergency room malpractice case, a New York court discussed the grounds for granting a motion for leave to renew following the dismissal of a claim. If you were harmed by negligent care in an emergency room, it is advisable to engage a knowledgeable Syracuse emergency room malpractice attorney who will gather the evidence needed to provide you with a strong chance of a winning outcome.

Factual History

It is reported that the plaintiff visited the emergency department of the defendant medical center for a laceration on his right hand. While he was at the defendant medical center, he was treated by a physician’s assistant. Due to unspecified harm, the plaintiff eventually filed a medical malpractice claim against the defendant. The defendant ultimately filed a motion for summary judgment. In opposition to the motion, the plaintiff produced an expert affidavit from an orthopedist. The court granted the motion for summary judgment. The plaintiff then filed a motion for leave to renew his opposition to the defendant’s motion for summary judgment and attached an expert affidavit from a physician’s assistant. The court denied the plaintiff’s motion, and the plaintiff appealed.

Grounds for Granting a Motion for Leave to Renew

In New York, a motion for leave to renew must be based on new facts that were not presented in the prior motion, but that are sufficient to change the court’s prior ruling. It is within the court’s discretion as to whether to grant a motion that arises out of facts that were within the moving party’s knowledge at the time of the prior motion. Regardless of whether the motion is based on facts that were known to the moving party at the time of the original motion, however, the motion for leave to renew must nonetheless set forth a reasonable justification for failing to present such facts during the pendency of the prior motion.

New York Court Discusses Dismissal of Untimely Medical Malpractice Claims Against Public Corporations

Published on: July 19, 2020 | By DeFrancisco & Falgiatano

Birth injury cases, like all other civil lawsuits, must be filed within the statute of limitations. Additionally, when the defendant is a public corporation, there are strict time constraints regarding when a claim must be filed and served in addition to the normal statute of limitations, and if the plaintiff fails to file a claim in a timely manner, he or she may waive the right to recover compensation. This was shown in a recent case in which a child suffered a birth injury due to malpractice committed by an obstetrician-gynecologist at a hospital that was a public corporation. If your child suffered a birth injury because of negligent acts during delivery, it is prudent to discuss your harm with a dedicated Syracuse obstetrician-gynecologist malpractice attorney as soon as possible to assess what claims you may be able to pursue.

Facts of the Case

It is reported that in July 2007, the plaintiff mother presented to the defendant hospital, which was a public corporation, for the birth of the plaintiff infant. The plaintiff infant was delivered through an emergency cesarean section, and during the delivery, he suffered brain injuries. Thus, in February 2012, the plaintiffs served a notice of claim on the defendant, and in December 2012, the plaintiffs filed a medical malpractice lawsuit against the defendant. Subsequently, in January 2017, the plaintiffs filed a motion for leave to serve a late notice of a claim or to have late notice deemed timely, and to strike the defendant’s defenses that the plaintiffs’ claim was untimely. The court denied the plaintiffs’ motion and directed that the plaintiff’s complaint should be dismissed. The plaintiff then appealed.

Pursuing Medical Malpractice Claims Against Public Corporations

In New York, the law requires that a court considering whether to deem a late notice of a claim timely served must weigh, among other factors, whether the public corporation received actual notice of the claim within ninety days of when the claim accrued or shortly thereafter. The court should also consider whether the plaintiff presented a reasonable excuse for failing to serve a timely notice of the claim and for the delay in seeking permission to file a late notice of the claim and whether the public corporation suffered substantial prejudice in defending the case on its merits due to the delay.

Court Discusses Grounds for Denying Summary Judgment in Medical Malpractice Claims in New York

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

In New York medical malpractice cases, the plaintiff bears the initial burden of proving that the defendant’s failure to act in a manner that complies with the applicable standard caused the plaintiff to suffer harm. If the plaintiff meets this burden, the burden then shifts to the defendant, who must show that the evidence, on its face, demonstrates that the plaintiff’s claims must be dismissed. As such, if a defendant meets its burden of proof, a plaintiff can only avoid dismissal by showing that a triable issue of material fact exists. If a defendant does not meet its burden, however, the plaintiff’s claims will not be dismissed despite the strength of the plaintiff’s evidence in opposition to a motion for dismissal, as shown in a recent podiatry malpractice case. If you were harmed by negligent care rendered by a podiatrist, it is advisable to speak to a Syracuse podiatry malpractice attorney to analyze your possible claims.

Facts of the Case

It is reported that the defendant, a podiatrist, performed a plantar fasciotomy on the plaintiff’s left foot. Following the procedure, the plaintiff began experiencing numbness in her fifth toe, difficulty walking, and pain. The plaintiff then filed a medical malpractice claim against the defendant podiatrist and the defendant podiatrist’s employer. At the close of discovery, the defendants filed a motion for summary judgment, in which it asked the court to dismiss the plaintiff’s claims. The defendants’ motion was denied, after which they appealed.

The Defendant’s Burden in New York Medical Malpractice Cases

On appeal, the appellate court affirmed the trial court’s ruling. The appellate court stated that a plaintiff must prove that a defendant departed from the applicable standard of care and that the departure was the proximate cause of the plaintiff’s damages, in order to recover compensation under a medical malpractice claim. As such, a defendant moving for summary judgment must make a prima facie showing either that he or she did not depart from the standard of care or that any departure did not cause the plaintiff to suffer harm. If the defendant makes a prima facie showing, the burden shifts to the plaintiff to produce evidence or materials that demonstrate that a disputed issue of fact exists that must be resolved via trial.

New York Court Discusses Grounds for Setting Aside a Verdict in a Malpractice Case

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

Generally, parties in New York medical malpractice cases rely on juries to resolve issues of liability and damages. Juries do not always issue verdicts that comport with the evidence presented, however. Thus, if a jury’s verdict is against the weight of the evidence, the New York Civil Practice Laws and Rules permit a party to file a motion to set aside the verdict. Thus was demonstrated in a recent otolaryngologist malpractice case, in which a New York court discussed when a jury’s verdict should be set aside as against the weight of the evidence. If you suffered harm due to negligent care rendered by an otolaryngologist, you should consult a knowledgeable Syracuse otolaryngologist malpractice attorney to explore what evidence you must produce to obtain a favorable outcome.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff underwent a surgical procedure on her sinuses to treat chronic sinusitis. When the defendant was performing the procedure, she noticed a thinning of one of the bones in the plaintiff’s sinus cavity and therefore applied a dural patch to the bone. Following the procedure, the plaintiff suffered a diminished ability to smell or taste. The plaintiff then underwent a procedure with a second doctor who drained a cyst in her sinuses and repaired the bone in the area where the dermal patch had been applied.

It is alleged that the plaintiff then filed a lawsuit against the defendant for medical malpractice. After a trial, the jury found that the defendant departed from the accepted practice of medicine in failing to advise the plaintiff of the dermal patch following the surgery and that the defendant’s departure caused the plaintiff’s harm, and issued a verdict in favor of the plaintiff. The defendant then filed a motion to set aside the jury’s verdict as against the weight of the evidence.

New York Court Discusses Collateral Estoppel in a Chiropractic Malpractice Case

Published on: June 26, 2020 | By DeFrancisco & Falgiatano

Often, the negligence of numerous medical providers will contribute to a person’s harm. Thus, it is not uncommon for a plaintiff in a medical malpractice case to assert claims against numerous defendants. In some instances, a plaintiff may be able to settle with one defendant while claims against other defendants remain unresolved. Recently, a New York court explained the effect that settling claims with one defendant could have on the remaining claims against other defendants, in a case in which the plaintiff alleged she was harmed by chiropractic malpractice. If you suffered injuries due to negligent treatment provided by a chiropractor, it is advisable to speak to a dedicated Syracuse chiropractic malpractice attorney regarding your possible theories of recovery.

Facts of the Case

Allegedly, the plaintiff suffered injuries to her neck and back following treatment from the defendant chiropractor. She then received additional treatment from the defendant doctor, after which her condition worsened. She subsequently filed a medical malpractice lawsuit against the defendants and the chiropractic center and hospital, where the defendants respectively worked. The chiropractic defendants agreed to proceed to arbitration with the plaintiff, and during arbitration, it was determined that the defendant chiropractor’s negligence was a substantial cause of the plaintiff’s harm, and damages were awarded to the plaintiff.

It is reported that following arbitration, the plaintiff dismissed her claims against the chiropractic defendants. The hospital defendants then filed a motion for summary judgment, arguing that the issue of liability had been determined by the arbitration, and the plaintiff was precluded from pursuing claims for damages arising out of her alleged harm. The court denied the motion, and the hospital defendants appealed.

Court Discusses Expert Qualifications in a Medical Malpractice Case in New York

Published on: June 22, 2020 | By DeFrancisco & Falgiatano

In medical malpractice cases in the state of New York, the plaintiff will typically need to produce an expert report to demonstrate that the defendant violated the standard of care. While generally, the expert will be a person that practices in the same specialty as the defendant, a practitioner that specializes in a different area of medicine than the defendant may be qualified to opine as an expert in certain circumstances. This was discussed in a recent New York case in which the court reversed the dismissal of a plaintiff’s primary care malpractice case. If you were injured by incompetent care provided by a doctor in a primary care practice, it is critical to contact a skillful Syracuse primary care malpractice attorney to discuss what damages you may be able to recover.

History of the Case

It is reported that the plaintiff visited the defendant primary care physician with complaints of neck pain, scalp sensitivity, headaches, and other complaints. The defendant diagnosed the plaintiff with cervicalgia. Approximately a week later, the plaintiff’s daughter called the defendant and advised him that the plaintiff was suffering from vision loss. The defendant then advised that the plaintiff visit a specialist. The plaintiff was subsequently diagnosed with temporal arteritis and suffered irreversible blindness as a result.

Allegedly, the plaintiff then filed a medical malpractice lawsuit against the defendant. The defendant filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims. The defendant argued, in part, that the plaintiff’s expert report lacked probative value because it was provided by a doctor that practiced in general surgery rather than internal medicine. The court granted the defendant’s motion, and plaintiff appealed.

New York Court Discusses When a Delayed Diagnosis Constitutes Medical Malpractice

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

In some instances in which a patient suffers from multiple symptoms that do not have a clear cause, a doctor will be unable to provide the patient with a prompt diagnosis. While some degree of delay in diagnosing a patient may be reasonable, a substantial delay without just cause may constitute medical malpractice. Recently, a New York appellate court explained when a delay constitutes medical malpractice in a case in which a patient alleged she suffered harm due to a physician’s delay in diagnosing the patient with endocarditis. If you suffered damages due to your doctor’s failure to diagnose you in a timely manner, it is wise to speak to a trusted Syracuse medical malpractice attorney to discuss what damages you may be able to recover.

Facts Concerning the Plaintiff’s Care

It is alleged that the plaintiff visited the defendant urgent care center with numerous complaints. The defendant ultimately diagnosed the plaintiff with endocarditis, multiple days after the plaintiff first visited the defendant urgent care center. The plaintiff then filed a medical malpractice lawsuit against the defendant urgent care center and the defendant doctor who treated her at the center, alleging that the delay in diagnosing the plaintiff caused her to suffer permanent heart valve damage. The defendants filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims. The court denied the defendants’ motion, after which the defendants appealed. Upon review, the appellate court reversed the trial court’s ruling and dismissed the plaintiff’s case.

When a Delayed Diagnosis Constitutes Medical Malpractice

The appellate court noted that the defendants made a prima facie showing that they were entitled to judgment as a matter of law. Specifically, the defendants met their burden of proof under New York law by producing a detailed expert affidavit that stated that the defendant’s delay in diagnosing the plaintiff did not constitute a departure from accepted and good medical practice in treating the plaintiff. The appellate court found, however, that the plaintiff did not meet her burden of proof. Specifically, the expert reports provided by the plaintiff neither demonstrated that the defendants deviated from the standard of care or that any purported deviation caused the plaintiff’s alleged harm.