Syracuse Medical Malpractice and Personal Injury Lawyer Blog

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.

A Court’s Discretion to Dismiss a Case Demonstrated in a Recent Medical Malpractice Action in New York

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

While it is generally imprudent to file a civil lawsuit without the assistance of an attorney, it can be an especially poor decision in a medical malpractice case, given the complexities of the issues and the strict requirements for proving a health care provider’s liability under New York law. The dangers of proceeding pro se were illustrated in a recent orthopedic malpractice case that the court dismissed due to the plaintiff’s failure to appear at numerous conferences. If you were injured due to an improperly performed orthopedic surgery, it is smart to speak to an experienced Syracuse orthopedic malpractice attorney regarding your potential claims.

Facts Regarding the Plaintiff’s Treatment

It is alleged that the plaintiff underwent shoulder surgery that was performed by the defendant orthopedic surgeon. The plaintiff alleged that he was misinformed regarding the manner in which the surgery would be performed and the potential side effects of the surgery and that the defendant performed the surgery in a negligent manner, causing the plaintiff to suffer permanent injuries and significant pain. Thus, the plaintiff filed a medical malpractice lawsuit against the defendant. The plaintiff subsequently filed a note of issue but failed to move the case forward. Additionally, the plaintiff failed to appear at two conferences scheduled by the court without explanation. As such, the court dismissed the plaintiff’s action. The plaintiff appealed, asking for his lawsuit to be restored, but the appellate court affirmed the trial court ruling.

A Court’s Discretion to Dismiss a Case Under New York Law

Pursuant to the New York Uniform Civil Rules For The Supreme Court And The County, a court has the discretion to order a dismissal of a complaint in a case where the plaintiff either fails to appear or is not ready to proceed. In the subject case, the appellate court noted that the plaintiff failed to appear at multiple conferences that were scheduled following the filing of the note of issue. Thus, the trial court properly ordered the dismissal of the plaintiff’s complaint.

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

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

It is well established that a plaintiff that seeks to demonstrate medical malpractice must produce expert testimony that is sufficient to demonstrate that the defendant health care provider should be held liable for the plaintiff’s harm. Not all expert reports are sufficient, however, as an expert must not only be qualified, but his or her report must also be based on reliable scientific methods. Recently, a New York court discussed what standards an expert report must meet to be admissible in a case in which the court dismissed the plaintiff’s hospital malpractice claims due to the lack of evidentiary support. If you were harmed by negligent medical care while you were admitted to a hospital, it is wise to meet with a Syracuse hospital malpractice attorney to discuss what recourse may be available for your harm.

Factual History of the Case

It is reported that the plaintiff began treating for insomnia at the defendant hospital, which received federal funding. During the course of his treatment, he took an anti-depressant but did not exhibit any complex sleep behaviors. In 2011 and 2012, however, the plaintiff exhibited such behaviors, in that he threw himself out of bed, and left his bed and fell into a wall, causing him to sustain personal injuries. He then filed a malpractice claim against the federal government, as the hospital was federally funded, alleging that the hospital’s negligence led to his harm. The defendant filed a motion for summary judgment, arguing entitlement to judgment as a matter of law because the plaintiff’s expert’s opinions on causation were inadmissible under the Federal Rules of Evidence, and without expert testimony, the plaintiff could not sustain his claim.

Sufficiency of Expert Reports in Medical Malpractice Cases

In a medical malpractice case, to prove causation, the plaintiff must show that the defendant’s departure from the standard of care was a significant factor in bringing about the plaintiff’s harm. Thus, where expert testimony is required, the expert must establish the nexus between the malpractice the defendant allegedly committed, and the harm suffered by the plaintiff. The court stated that even if the plaintiff’s experts were qualified to offer testimony, their reports were unreliable.

Court Discusses Evidence Sufficient to Avoid Dismissal Via Summary Judgment in a Medical Malpractice Case in New York

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

A patient harmed by incompetent medical care may be able to pursue claims against the provider that caused his or her injuries, regardless of whether the context in which the plaintiff received treatment. For example, if a person who is incarcerated receives incompetent care, he or she can seek damages from the doctor that provided the negligent treatment. The standards that apply in a medical malpractice case asserted by an incarcerated patient are the same as those that apply in a typical medical malpractice case, as demonstrated in a recent neurology malpractice case decided by a New York appellate court. If you sustained damages due to the negligent acts or omissions of a neurologist, it is in your best interest to speak with a proficient Syracuse neurology malpractice attorney to discuss what you must prove to recover damages.

Facts Regarding the Plaintiff’s Treatment

It is alleged that the plaintiff, who was incarcerated, was treated at a medical center by the defendant neurologist. Specifically, the defendant performed a surgical procedure on the plaintiff to attempt to address an aneurysm behind the plaintiff’s eye. During the procedure, the defendant placed a stent in the artery, which ultimately failed. The defendant then performed a test that indicated the artery could be permanently blocked by occlusion. Following the test, the defendant ordered the plaintiff to follow up with him in two weeks.

Reportedly, the plaintiff did not follow up with the defendant, however. The plaintiff subsequently suffered permanent harm, after which he filed a medical malpractice lawsuit against the defendant. The defendant ultimately filed a motion to dismiss, which the court denied. The defendant appealed the denial, and on appeal, it was affirmed.

New York Court Discusses Pursuing Medical Malpractice Claims Under the Federal Tort Claims Act

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

A variety of health care providers’ actions or failure to act may give rise to a claim for medical malpractice. For example, not only may improperly rendered care form the basis for a medical malpractice lawsuit, but the failure to obtain a patient’s informed consent prior to performing a procedure may as well. A plaintiff asserting multiple claims in a medical malpractice action must meet the requirements for proceeding with each claim, however, as each claim is analyzed separately, as demonstrated in a recent ob-gyn malpractice case in New York. If you or your child suffered harm due to negligent care provided by an obstetrician or gynecologist, it is advisable to consult a seasoned Syracuse ob-gyn malpractice attorney regarding your potential claims.

Factual and Procedural History

It is alleged that the plaintiff treated at the defendant health center during her pregnancy. The defendant was a federally qualified health center eligible for coverage under the Federal Tort Claims Act. The plaintiff’s baby suffered numerous birth injuries due to the defendant’s failure to conduct proper fetal monitoring or to deliver the baby in a timely manner. Thus, the plaintiff filed a lawsuit against the defendant pursuant to the Tort Claims Act, alleging medical negligence and lack of informed consent, and arguing that she suffered the loss of consortium of her child. The defendant filed a motion to dismiss the plaintiff’s lack of informed consent and the loss of consortium claims.

Pursuing Medical Malpractice Claims Under the Federal Tort Claims Act

The Federal Tort Claims Act is the sole remedy for claims against the United States or any of its employees. Thus, prior to commencing a lawsuit under the Tort Claims Act, a plaintiff must file an administrative claim with the correct federal agency, and the claim must be denied. Filing the claim is a jurisdictional requirement that cannot be waived. As such, if a plaintiff fails to meet this requirement, his or her claim must be dismissed due to the court’s lack of subject matter jurisdiction.

Court Analyzes the Impact of Judicial Estoppel on Medical Malpractice Claims in New York

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

If a person harmed by medical malpractice in New York wishes to seek compensation via a medical malpractice lawsuit, it is important that the person understands how other unrelated cases may impact his or her malpractice case. For example, if a medical malpractice plaintiff files for bankruptcy during the pendency of his or her malpractice litigation, it could impair the plaintiff’s rights to recover a damages award, as discussed in a recent New York case. If you were injured by incompetent medical care, it is wise to speak to a knowledgeable Syracuse medical malpractice attorney to discuss what factors may impact your case.

Procedural History of the Case

It is reported that in 2006 the plaintiff and her husband filed a medical malpractice lawsuit against the defendant, alleging that the defendant provided the plaintiff with negligent medical care, which caused her to suffer unspecified injuries. Then, in 2008 while the medical malpractice lawsuit was still pending, the plaintiff filed for bankruptcy. She did not list her pending medical malpractice case as an asset in the bankruptcy proceeding, which was fully administered and closed in 2009.

Allegedly, in 2016, the plaintiff once again filed for bankruptcy. She did not list her pending medical malpractice case in the second bankruptcy proceeding, either. The second bankruptcy was fully administered and closed in August of 2016. Then, in November, the plaintiff moved to reopen her initial bankruptcy to list the pending medical malpractice action as an asset of the estate. The court granted the plaintiff’s motion, and the bankruptcy schedule was ultimately amended to include the medical malpractice action. The defendant then filed a motion to dismiss the medical malpractice lawsuit, arguing that the plaintiff lacked the capacity to sue due to judicial estoppel. The court granted the defendant’s motion, and the plaintiff appealed.

Court Analyzes Medical Malpractice Versus Ordinary Negligence in a Case Alleging Harm Sustained at a New York Spa

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

Self-proclaimed med-spas that offer both medical and cosmetic procedures are increasingly prevalent throughout New York. Med-spas blur the lines between healthcare and aesthetics, and in many cases, it is not clear whether harm caused by negligent care at a med-spa sounds in medical malpractice or ordinary negligence. This was demonstrated in a recent New York appellate case in which a plaintiff’s claims for failure to obtain informed consent prior to a laser hair removal procedure were dismissed after the court ruled that the procedure was not medical in nature. If you suffered harm due to a negligently performed medical procedure, it is prudent to speak with a skillful Syracuse medical malpractice attorney regarding your potential claims for damages.

Facts of the Case

It is alleged that the plaintiff visited the defendant spa, where she underwent a laser hair removal treatment. The plaintiff subsequently suffered burns and other injuries due to the treatment, after which she filed a lawsuit against the defendant alleging, in relevant part, that the defendant failed to obtain the plaintiff’s informed consent regarding the potential risks of the treatment prior to performing the treatment. The plaintiff also set forth claims of negligent hiring and supervision and ordinary negligence. Specifically, the plaintiff alleged that the defendant failed to render the treatments in a professional or competent manner and failed to properly test the plaintiff prior to performing the treatment. The defendant filed a motion to dismiss the plaintiff’s claims in their entirety. The trial court denied the motion, and the defendant appealed.

Medical Malpractice Versus Ordinary Negligence

On appeal, the court found that the trial court properly denied the defendant’s motion for summary judgment as to the negligence claims, finding that questions of fact existed that precluded the dismissal of such claims. With regards to the plaintiff’s lack of informed consent and negligent supervision claims, however, the court reversed the trial court ruling, dismissing the plaintiff’s claims.

New York Executive Orders Diminish Liability for Medical Malpractice During the COVID-19 Pandemic

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

The COVID-19 pandemic has changed every aspect of life in New York for the foreseeable future and has caused an unprecedented strain on hospitals and healthcare providers. In response to the pandemic, the governor issued several executive orders placing restrictions on activities in an effort to slow the spread of the disease. While the orders largely aim to protect public health, a portion of the orders arguably diminishes the protections of people seeking medical treatment, as it reduces healthcare providers’ liability for medical malpractice. If you believe you were harmed due to incompetent medical care during the COVID-19 pandemic or at any other time, it is wise to talk to a capable Syracuse medical malpractice attorney regarding what damages you may be able to recover via a civil lawsuit.

Medical Malpractice During the COVID-19 Pandemic

Reportedly, Governor Cuomo signed legislation at the beginning of March 2020 that enacted the State’s budget, limiting liability for health care providers and facilities for health care services provided pursuant to a COVID-19 emergency rule or else accordance with pertinent law, unless the acts were grossly negligent, constituted reckless misconduct, or willful or intentional conduct, or intentional infliction of harm.

Governor Cuomo also issued an Executive Order on March 23, 2020, stating in part that any statute, law, ordinance, rule, or regulation that hindered, prevented, or delayed people from coping with the disaster or providing aid was temporarily suspended. Further, the order specifically provided that all physicians, nurse practitioners, registered nurses, physician assistants, and specialist assistants are immune from civil liability for any death or injuries that are alleged to have directly resulted from their omissions or acts in the course of providing medical services in response to the COVID-19 pandemic throughout the State. Notably, however, there are exceptions for cases in which a death or injury was caused by the gross negligence of the medical professional in question.

New York Court Discusses Seeking Testimony Relative to a Plaintiff’s Claims in a Medical Malpractice Case

Published on: April 30, 2020 | By DeFrancisco & Falgiatano

In many instances in which a patient suffers harm due to incompetent medical care, more than one care provider will contribute to the patient’s harm. Thus, in many medical malpractice cases, a patient may need to obtain information from a provider not only regarding the care provided by the provider but also regarding the sufficiency of the care provided by other practitioners as well. Thus, if a provider refuses to answer certain questions in a deposition, the patient may not be able to obtain the information needed to prove liability. As such, in some cases, a patient may be able to compel a provider to attend a deposition and answer a proposed line of questioning, as shown in a recent New York case. If you were harmed by negligent medical care, it is in your best interest to consult a seasoned Syracuse medical malpractice attorney to discuss your options for seeking the evidence you need to prove your medical provider caused your harm.

Factual Background of the Case

Allegedly, the plaintiff filed a medical malpractice claim against numerous defendants, including a hospital, a radiology practice, and an individual radiologist, arising out of harm caused by the defendant radiologist’s failure to properly diagnose the plaintiff’s heart issues. During the course of discovery, the plaintiff’s attorney deposed the defendant radiologist; however, the defendant radiologist refused to answer certain questions regarding the plaintiff’s treatment she underwent after she was treated by the defendants. Thus, the plaintiff’s attorney filed a motion to compel the defendant radiologist’s continued deposition. The trial court denied the plaintiff’s motion, after which the plaintiff appealed.

Seeking Testimony Relative to the Plaintiff’s Claims

On appeal, the appellate court reversed the trial court ruling and ordered the defendant radiologist to submit to his continued deposition. Specifically, the court stated that under New York law, the defendant radiologist could be questioned as an expert in the radiology practice area regarding the plaintiff’s subsequent medical records, her subsequent CT scans and reports, and the findings set forth in a report following a subsequent angiogram. Further, the court stated that such questions did not solely relate to the alleged negligence of other defendant physicians, but were relevant to the issue of whether the defendants’ collective negligence in failing to diagnose and treat the plaintiff proximately caused the plaintiff’s harm. As such, the appellate court found that the trial court erred in denying the plaintiff’s motion to compel the defendant to answer questions regarding the plaintiff’s treatment at two other hospitals and order the defendant radiologist to submit to a further deposition.