Syracuse Medical Malpractice and Personal Injury Lawyer Blog

New York Court Discusses Liability of Non-Treating Providers

Published on: January 27, 2020 | By DeFrancisco & Falgiatano

Mammograms are a critical component of preventative care. Many women do not undergo mammograms on a yearly basis, though, despite the clear health benefits. Other women undergo mammograms in mobile screening vans that typically offer mammograms during breast cancer awareness month. If a mammogram conducted in a mobile van is not properly performed or evaluated, and a woman subsequently suffers harm as a result, it can be difficult for the woman to pursue medical malpractice claims. This was demonstrated in a recent radiologic malpractice case arising out of Kings County, in which the court dismissed many of the plaintiff’s claims. If you were harmed by a negligent radiologist, it is wise to speak with a skillful Syracuse radiology malpractice attorney regarding what evidence you must produce to recover damages.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff underwent a mammogram at a mobile screening unit. The defendant radiologist was retained by the company that administered the mammogram to interpret the images. Thus, he interpreted the plaintiff’s mammogram and reported to the plaintiff’s primary care physician that the mammogram was normal, but that a recall was advised. The report also stated that the plaintiff had dense breasts that made her mammogram difficult to interpret. The plaintiff underwent examinations with her primary care physician and gynecologist, neither of which revealed abnormalities. The plaintiff was ultimately diagnosed with breast cancer approximately a year later. She subsequently filed a medical malpractice lawsuit against her gynecologist, primary care physician, and the radiologist for failing to diagnose her breast cancer in a timely manner. She also alleged negligent supervision and lack of informed consent claims. Following the close of discovery, the defendants filed motions for summary judgment, which the court granted in part.

Duty Owed by Non-treating Providers

Upon review, the court found that the plaintiff raised triable issues of fact as to whether the original mammography was adequate to obtain an interpretation, whether the defendant radiologist improperly categorized the mammogram as normal rather than inconclusive, and whether the aforementioned errors resulted in a delay in diagnosing the plaintiff’s breast cancer. The court dismissed the plaintiff’s lack of informed consent and negligent supervision claims, however. Additionally, the court dismissed the plaintiff’s claims that the radiologist should have obtained prior films for comparison or that he should have recommended a sonogram. Rather, the court stated that the radiologist was not the plaintiff’s treating physician, and therefore his role and legal obligation in her treatment was limited. Specifically, the court found that neither the radiologist nor the company that retained the defendant radiologist owed the plaintiff a general duty of care. Therefore, he did not have an obligation to obtain prior films from the plaintiff or advise her to seek further testing.

Court Analyzes Time Limitations Summary Judgment Motions in Medical Malpractice Cases in New York

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

Most medical malpractice cases filed in New York are decided on their merits. In other words, if the case proceeds to trial, the judge or jury will ultimately decide the issue of liability and damages based on the evidence presented. In some instances, however, the outcome of a case will be determined by a party’s failure to comply with procedural rules. This was demonstrated in a recent surgical malpractice case arising out of Kings County, in which the court denied the defendant’s motion for summary judgment as untimely. If you suffered injuries because of an improperly performed surgical procedure, it is prudent to meet with a diligent Syracuse surgical malpractice attorney to discuss what damages you may be able to recover.

Factual and Procedural Background of the Case

It is reported that the plaintiffs, husband, and wife, filed a medical malpractice lawsuit against the defendants after the defendants allegedly lost a prosthetic part in the plaintiff husband’s body during a hip replacement surgery. After the completion of discovery, the defendants filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims. The plaintiffs did not file a response to the defendants’ motion but instead filed a motion asking the court to dismiss the defendants’ motion as untimely. The court granted the plaintiffs’ motion to reject the defendants’ motion due to its untimely nature and denied the defendants’ motion as academic. The defendants subsequently filed an appeal.

Time Limits for Filing a Motion for Summary Judgment

Under the New York laws of civil practice, courts have the discretion to impose deadlines for when either party can file a motion for summary judgment, with the caveat that the deadline cannot be more than thirty days earlier or one hundred and twenty days later than the filing of the note of issue, unless leave of court is shown or good cause is established. In Kings County, the rules provide that a party must move for summary judgment within sixty days of when a note of issue is filed unless the party seeks leave of court or shows good cause for an untimely filed motion.

New York Court Discusses Depositions of Non-Party Physicians in Medical Malpractice Cases

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

In some cases in which a person is harmed by negligent treatment, multiple providers will participate in the person’s care, but not all of the providers will contribute to the person’s harm. Thus, it is not uncommon for either party to seek to depose non-party physicians as fact witnesses. There are limitations regarding what information can be elicited from a physician who is not an expert or a party, however, as demonstrated in a recent surgical malpractice case arising out of Bronx County. If you sustained damages due to an inappropriately performed surgery, it is wise to speak with a proficient Syracuse surgical malpractice attorney regarding what evidence is available to support your claims.

The Deposition of the Non-Party Physician

Allegedly, the plaintiff’s decedent underwent an elective knee replacement at the defendant hospital. Following the surgery, the decedent was transferred to a recovery room where he became unresponsive. The decedent was resuscitated, but he ultimately died due to an anoxic brain injury. His estate subsequently filed a medical malpractice lawsuit against the hospital and the defendant that performed the surgery. During discovery, the plaintiff’s counsel deposed the anesthesiologist that attended the decedent’s surgery. The defendants’ counsel objected to several questions presented to the anesthesiologist and directed her not to answer. Thus, the plaintiff sought a court order directing the anesthesiologist to answer.

Information Discoverable from a Non-Party Physician in a Medical Malpractice Case

Pursuant to the New York laws of civil procedure, counsel should be permitted to question witnesses at depositions freely, and any question posed should be answered unless the question is clearly improper or seeks privileged information. For example, in a malpractice action, it is improper to question a physician regarding the quality of care provided by another physician, if the question does not pertain to the potential negligence of the physician being questioned. If the question simply refers to the treatment offered by another physician, though, the physician being deposed cannot refuse to answer.

Court Discusses Jurisdiction Over Out-of-State Defendants in Medical Malpractice Cases in New York

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

It is not uncommon for a person seeking medical treatment to travel to another state or for a care provider to treat patients in more than one state. In a patient is harmed by treatment rendered by an out of state care provider, though, it can be difficult to determine the proper jurisdiction for pursuing a medical malpractice claim. Recently, a New York appellate court discussed a plaintiff’s burden of proof in establishing that a medical malpractice case was filed in the appropriate jurisdiction, in a case in which the plaintiff alleged she suffered harm due to treatment from a New Jersey oncologist. If you were injured by inadequate care provided by an oncologist, it is advisable to consult a capable Syracuse oncology malpractice attorney to discuss the proper procedure for pursuing a claim for damages.

The Plaintiff’s Treatment

Allegedly, the plaintiff was referred by the defendant New York hospital, to the defendant care center in New Jersey. The defendant care center provided the plaintiff with proton therapy treatment, which caused her to go blind. As such, the plaintiff filed a medical malpractice lawsuit against the defendant care center and the defendant providers, who specialized in radiation oncology. The New Jersey defendants filed a motion to dismiss based on lack of personal jurisdiction. The trial court denied the motion and ordered the parties to engage in jurisdictional discovery. Discovery was conducted, and the New Jersey defendants again filed a motion to dismiss for lack of personal jurisdiction, which the court again denied. The New Jersey defendants appealed.

Jurisdiction Over Out of State Providers

On appeal, the court reversed the trial court ruling, finding that the plaintiff failed to produce evidence sufficient to show that the court could properly exercise jurisdiction over the New Jersey defendants. Specifically, the plaintiff was required to prove that the defendants, on their own volition, reached into the state of New York for the purposes of engaging in sustained and substantial business transactions that were directly related to the plaintiff’s claims, in order for the court to exercise jurisdiction under the New York long-arm statute.

New York Court Discusses Vicarious Liability in Gynecologic Malpractice Case

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

It is not uncommon for a physician that treats a patient to refer the patient to a specialist for the diagnosis or treatment of certain conditions. When multiple providers treat a person for a single issue, and the care provided is inadequate, it can be challenging to assess which care provider is ultimately responsible for the person’s harm. In a recent gynecologic malpractice case, a New York appellate court discussed the duties imposed on a care provider with regards to treatment by a specialist to whom the provider transfers a patient’s care. If you suffered harm due to negligent care rendered by a gynecologist, it is wise to speak with a seasoned Syracuse gynecologic malpractice attorney regarding what compensation you may be able to pursue.

Facts Regarding the Plaintiff’s Treatment

Allegedly, the plaintiff visited the defendant gynecologist for a routine examination. During the examination, the defendant gynecologist felt a palpable mass that was tender to the touch in the plaintiff’s right breast. As such, the defendant gynecologist referred the plaintiff to the defendant breast surgeon for further examination. Upon examination, the defendant breast surgeon was unable to locate a palpable mass, which he reported to the defendant gynecologist. The mass in the plaintiff’s right breast was ultimately determined to be breast cancer. The plaintiff subsequently sued the defendants for malpractice for delaying her cancer diagnosis. The defendant gynecologist filed a motion for summary judgment, which the court granted. The plaintiff then appealed.

Liability for Negligence When a Patient is Referred to Another Provider

Under New York law, it is axiomatic that a defendant in a medical malpractice case must prove that he or she did not deviate from the applicable standard of care or that any deviation did not cause the plaintiff’s alleged harm, in order to obtain a dismissal of the plaintiff’s claims. While a defendant in a medical malpractice case cannot be held vicariously liable for the malpractice of a care provider to whom the defendant refers a patient, the defendant can be held liable for his or her own negligent conduct that causes a patient harm.

New York Court Discusses Liability for Medical Providers Covered Under the Federal Tort Claims Act

Published on: December 27, 2019 | By DeFrancisco & Falgiatano

In any medical malpractice case, it is essential for the injured person to name the correct parties as defendants. In some cases, however, it is not immediately clear who the correct parties or entities are, and a plaintiff who names the incorrect parties may have his or her claims dismissed. This was demonstrated in a recent obstetric malpractice case arising out of New York in which the defendants moved to substitute the United States as the defendant because the individually named defendants were eligible for coverage under the Federal Tort Claims Act. If you were harmed by a negligent obstetrician, you should consult a trusted Syracuse obstetric malpractice attorney to discuss which claims you may be able to pursue against the parties that caused your harm.

The Plaintiff’s Treatment and Alleged Harm

The plaintiff received care at the defendant hospital throughout her pregnancy. In January 2011, she was admitted to the defendant hospital for the induction of labor. She ultimately filed a medical malpractice claim against the defendant hospital and two individual treatment providers, alleging that they deviated from the standard of care in negligently failing to perform required diagnostic procedures and failing to diagnose the plaintiff’s placenta previa in a timely manner. The plaintiff did not file an administrative complaint regarding her allegations with the Department of Health and Human Services (HHS).

The defendant hospital had a contract to provide medical services with an integrated service system (ISS), which was the recipient of a grant from HHS to provide preventative health care. As a result, ISS was considered eligible for coverage under the Federal Tort Claims Act (FTCA). Thus, the defendants filed a motion to dismiss, arguing that the correct defendant was the United States.

New York Court Discusses Standard for Setting Aside a Verdict in the Interest of Justice in a Medical Malpractice Case

Published on: December 24, 2019 | By DeFrancisco & Falgiatano

In most medical malpractice cases, the plaintiff will rely on a jury to assess the evidence presented at trial to determine if the defendant should be held liable for the plaintiff’s harm. While a jury determines the key issues in a case, the judge determines what evidence each party is permitted to introduce to the jury and what guidance and instructions the jury receives. As such, if a judge permits a defendant to introduce testimony that should be precluded or bars the plaintiff from setting forth relevant evidence, the plaintiff may subsequently receive an adverse verdict. In such cases, the plaintiff may be able to have the verdict set aside in the interest of justice. Recently, a New York appellate court assessing the verdict in an orthopedic malpractice case discussed the standard for vacating a verdict in the interest of justice. If you sustained damages due to a negligent orthopedist, it is in your best interest to speak with a skillful Syracuse orthopedic malpractice attorney regarding your case.

Evidence Introduced at Trial Regarding the Plaintiff’s Harm

Allegedly, the plaintiff filed a malpractice lawsuit against the defendant orthopedic surgeon arising out of a negligently performed knee replacement. The plaintiff introduced evidence at trial that the defendant improperly fitted a prosthesis into the plaintiff’s knee, overstuffed the knee, and deviated from the accepted standard in providing post-operative care, all of which led to the need for revision surgery. Following the liability portion of the trial, the jury found in favor of the defendant. The plaintiff filed a motion to set aside the verdict in the interest of justice, which the court denied. The plaintiff then appealed the judgment and the order denying the motion.

Setting Aside a Verdict in the Interest of Justice

Pursuant to the New York laws of civil practice, the court may set aside a verdict in the interest of justice upon the motion of a party or by its own initiative. The rule is predicated on the belief that the judge presiding at a trial is in the best position to assess whether any errors were committed at trial. A motion to set aside a verdict in the interest of justice can arise out of errors in the trial court’s ruling regarding the admissibility of evidence, newly discovered evidence, surprise, or mistakes in charging the jury.

New York Court Discusses Confidential Settlement Agreements in Medical Malpractice Cases

Published on: December 19, 2019 | By DeFrancisco & Falgiatano

In many medical malpractice lawsuits, there will be more than one defendant. Thus, it is not uncommon for a plaintiff to settle his or her claims against one defendant but to allow the remaining claims to proceed to trial. Typically, plaintiffs will wish to keep the terms of any settlement agreement confidential to protect their rights to seek a fair resolution of any remaining claims. The Supreme Court, Bronx County, New York, assessed when a plaintiff may be required to disclose the terms of a confidential settlement agreement in a recent orthopedic malpractice case. If you sustained an injury or illness because of inadequate care provided by an orthopedic surgeon, it is important to consult a capable Syracuse orthopedic malpractice attorney regarding your potential damages.

Facts and Procedure of the Case

Reportedly, the plaintiff filed a medical malpractice lawsuit against the defendant orthopedic surgeon, defendant orthopedic medical group, and defendant hospital. Specifically, the plaintiff alleged that the defendants inappropriately administered an antibiotic to treat an MRSA infection that the plaintiff developed following arthroscopic knee surgery. The plaintiff subsequently settled her claims against the defendant hospital. The remaining defendants then sought to compel the plaintiff to disclose the terms of the settlement agreement, which were confidential. The plaintiff opposed the motion, stating she was only obligated to disclose the amount of her settlement with the hospital after a verdict had been issued against the remaining defendants.

Discovery of the Terms of a Confidential Settlement Agreement

Upon reviewing the defendants’ motion, the court stated that settlement agreements are favored under New York law, as they allow parties to avoid costly and time-consuming litigation and help to preserve judicial resources. Additionally, the court noted that it benefits society to allow parties to develop their own resolution to a dispute rather than relying on court intervention. The court also explained that in many cases, confidentiality is required to protect the parties involved and to encourage a just resolution.

Recent New York Medical Malpractice Case Highlights Risks of Proceeding Without an Attorney

Published on: December 16, 2019 | By DeFrancisco & Falgiatano

While in some legal matters, a person may be tempted to proceed without a lawyer, medical malpractice cases are complex and involve a juxtaposition of medical and legal issues. Thus, it generally is in the best interest of a person seeking to recover damages in a medical malpractice case to be represented by an attorney. This was demonstrated in a recent medical malpractice case arising out of the United States District Court for the Northern District of New York, in which the plaintiff proceeded pro se, and many of his claims were dismissed. If you sustained injuries due to a negligent care provider, it is wise to engage an experienced Syracuse medical malpractice attorney to assist you in your pursuit of damages.

Facts Surrounding the Plaintiff’s Alleged Harm

It is reported that the plaintiff treated with the defendant physicians at the defendant mental health center. During a treatment appointment, he requested that a student physician leave the room, and the doctor refused. The plaintiff attempted to file a grievance against the doctor but was asked to return on a later date. When he returned, he was questioned by the first doctor who was named as a defendant as to whether he had ever been admitted as an inpatient. Later that day, the plaintiff was picked up by the police and involuntarily committed to the defendant mental health center with diagnoses of delusional disorder and schizophrenia.

Allegedly, on the day after the plaintiff was admitted, the second doctor who was named as a defendant mocked him and told him he would be admitted for weeks. The plaintiff produced multiple forms of identification and proof that he was not delusional, but was not released for a week. Following his release, he filed a lawsuit asserting numerous claims against the defendants, including medical malpractice claims arising out of fraud and negligence. The defendants moved to dismiss the plaintiff’s claims.

New York Court Differentiates Ordinary Negligence and Medical Malpractice Claims

Published on: December 9, 2019 | By DeFrancisco & Falgiatano

In any civil lawsuit, it is essential for the plaintiff to assert the proper claims against the defendant, and the failure to do so can result in the dismissal of a case. For example, while negligence and medical malpractice claims bear many similarities, there are key distinctions between the two causes of action, and it is important for anyone seeking damages from a medical provider to ensure they are asserting the correct claim. This was evidenced in a recent case decided by a New York appellate court, in which the court reviewed the dismissal of the plaintiff’s negligence claim against a hospital due to the fact that her complaint sounded in medical malpractice. If you were harmed by negligent care rendered in a hospital, it is critical to retain a seasoned Syracuse hospital malpractice attorney to assist you in pursuing the appropriate claims for your harm.

Facts and Procedural Background of the Case

It is reported that the plaintiff donated blood at the defendant hospital’s blood donation center. After making her donation, she lost consciousness and fell and sustained injuries. She then filed a lawsuit against the defendant, asserting a negligence claim. Specifically, she alleged the defendant was negligent for failing to follow protocols for diminishing reactions in blood donors, failing to screen for health problems and obtain a thorough medical history, and failing to provide a medical examination before drawing blood.

It is alleged that the defendant filed a motion to dismiss, asserting the plaintiff’s complaint set forth a medical malpractice claim, but the plaintiff failed to file the required certificate of merit. The plaintiff argued that no certificate of merit was required because the allegations in her complaint merely asserted a negligence claim, not a malpractice claim. The court denied the defendant’s motion, and the defendant appealed.