Syracuse Medical Malpractice and Personal Injury Lawyer Blog

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.

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.