Syracuse Medical Malpractice and Personal Injury Lawyer Blog

New York Court Factors Weighed in Assessing the Sufficiency of an Expert Report in a Medical Malpractice Case

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

Medical malpractice cases often hinge on the sufficiency of each party’s expert affidavit. In other words, if the defendant produces expert testimony demonstrating that he or she did not depart from the standard of care, and the plaintiff fails to produce an affidavit that disputes the defendant’s expert’s assertions, the case may be dismissed. A New York appellate court recently discussed the factors considered in determining whether a plaintiff’s expert affidavit is insufficient to prevent dismissal or merely indicates issues that need to be resolved with regards to credibility, in an emergency room malpractice case. If you or a loved one suffered injuries due to inadequate care provided in an emergency room, it is wise to consult a trusted Syracuse emergency room malpractice attorney to discuss your case.

Facts Regarding the Plaintiff’s Harm

It is alleged that the plaintiff’s decedent was involved in a motor vehicle collision, after which she was removed from her vehicle and transported via ambulance to a nearby high school, where she was then picked up by a helicopter and transferred to the defendant medical center. At the defendant center, she was assessed by the trauma team, and it was determined she was suffering from pericardial tamponade. She was then transferred to an operating room but suffered a cardiac arrest during her transport.

Reportedly, the defendant surgeon performed a thoracotomy and repaired a tear in her atrium while members of the team performed CPR, but the efforts to restore a natural rhythm to the decedent’s heart failed, and she died. The plaintiff commenced a lawsuit against the defendant medical center, and defendant surgeon, alleging medical malpractice. The defendants filed a motion for summary judgment, which was denied. The defendants then appealed.

New York Court Discusses Grounds for Vacating Default Judgment in a Hospital Malpractice Case

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

Typically, courts aim to assess medical malpractice cases based on their merit. In other words, the courts will determine if either party has presented sufficient evidence in support of their position to obtain a judgment as a matter of law, or if the case should proceed to trial. In some instances, however, a court will grant a default judgment in favor of the plaintiff based on the defendant’s failure to comply with procedural requirements. Recently, a New York appellate court assessed when a default judgment should be entered against a defendant for failing to respond to a plaintiff’s complaint in a hospital malpractice case. If you were harmed by negligent care you received in a hospital, it is advisable to meet with a proficient Syracuse hospital malpractice attorney regarding your potential causes of action.

Procedural History of the Case

It is reported that the plaintiff was struck by a vehicle, which required her to undergo bilateral leg amputations. She filed a lawsuit against the defendant driver, and five years later, amended the complaint to assert medical malpractice claims against the defendant hospital where she underwent her amputations and the defendant surgeons who participated in her amputation. Each of the defendants was served, and the defendant hospital and first defendant surgeon filed motions to dismiss. The second defendant surgeon did not respond. The court granted the defendant hospital and first surgeon’s motions to dismiss. The defendant hospital then moved to reargue that the claim against the second surgeon should be dismissed, and the plaintiff filed a cross-motion to enter a default judgment against the second surgeon. The court granted the plaintiff’s motion, and the defendant hospital appealed. Additionally, the second surgeon filed a motion to vacate the judgment due to an excusable delay.

Grounds for Entering a Default Judgment

On appeal, the court noted that the defendant hospital employed the second surgeon at the time of the alleged harm, and therefore found that the hospital had standing to seek vacatur of the order granting default judgment. The court went on to explain that a defendant seeking to vacate a default granted for the failure to answer or appear must demonstrate a valid excuse for the default and a defense to the action that is potentially meritorious. Whether an excuse for a failure to respond is reasonable lies within the discretion of the court. Factors considered in determining whether an excuse is reasonable include the duration of the delay, whether there was prejudice to the opposing party, the public policy in favor of resolving a case on the merits, and whether the defendant acted willfully.

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

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

In all medical malpractice cases filed in New York, the burden of proof is transferred from the plaintiff to the defendant and then back to the plaintiff. In other words, the plaintiff must delineate the alleged malpractice committed by the defendant via a bill of particulars. In turn, if the defendant wishes to have the case dismissed, he or she must refute each allegation in the bill of particulars with an expert report. In a recent case before a New York appellate court, the court explained what constitutes an expert report sufficient to obtain a dismissal in a hospital malpractice case. If you suffered damages during or after your admission to a hospital due to incompetent medical care, it is prudent to speak with a reliable Syracuse hospital malpractice attorney to discuss what compensation you may be able to pursue.

Factual Background

It is reported that the decedent underwent a procedure at the defendant hospital during which a stent was placed in his esophagus. The following day, he was discharged and directed to follow-up with his primary care physician if he suffered certain symptoms. The decedent died five days later. The plaintiff then filed a medical malpractice lawsuit against the hospital and physician who performed the procedure, in which she alleged negligence during the procedure and in the post-discharge care of the decedent. The defendants filed a motion for summary judgment, which was granted with exception to the claims regarding post-discharge care. The defendants appealed.

Sufficiency of Defense Expert Reports in Medical Malpractice Cases

In a medical malpractice case, a defendant seeking dismissal of the plaintiff’s claims via summary judgment must establish either that he or she did not deviate from the standard of care or that any deviation did not cause the plaintiff’s alleged harm. In order to sustain this burden, the defendant must rebut and address each specific allegation of malpractice that is set forth in the plaintiff’s bill of particulars.

New York Court Discusses When a Delayed Diagnosis Constitutes Malpractice

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

While in some cases, a patient’s symptoms are straightforward, and the cause of the symptoms are easily ascertainable, in other instances, the journey to an accurate diagnosis can be lengthy. Simply because a patient does not immediately receive a correct diagnosis does not indicate that malpractice is present, however. Instead, in some cases, it may simply take longer to determine what illness is afflicting a patient. Recently, a New York appellate court discussed the evaluation of malpractice claims arising out of delayed diagnoses in a case in which it took several months for a plaintiff to receive a cancer diagnosis. If you were injured by a delay in receiving an accurate diagnosis, you should consult a capable Syracuse medical malpractice attorney regarding your possible claims.

Factual Background

It is reported that the plaintiff’s decedent presented to the defendant primary care physician with complaints of puffy eyes and nasal congestion. He was treated and sent home. A month later, the decedent called the defendant primary care physician and advised he was having difficulty swallowing, after which she referred him to a gastroenterologist. She did not order any other tests. The decedent ultimately underwent diagnostic imaging, which revealed that he had a mass in his chest. The defendant oncologist ultimately diagnosed the plaintiff with a form of lymphoma. After the decedent’s death, the plaintiff filed a medical malpractice lawsuit against the defendants, arguing that their failure to diagnose the decedent in a timely manner caused the decedent’s harm. The defendants each filed motions for summary judgment, which the court granted in part. The plaintiff appealed.

Medical Malpractice Arising Out of a Delayed Diagnosis

With regard to the claims against the defendant primary care physician, the court noted that the defendant established via her expert report that the treatment she provided the decedent with on the date of his initial visit complied with the standard of care. In return, the plaintiff’s expert failed to raise a triable issue of material fact regarding whether the defendant deviated from the standard of care. Thus, the court affirmed the order granting summary judgment with regard to that issue.

New York Court Discusses Medical Malpractice Arising Out of a Breach of Patient-Doctor Confidentiality

Published on: February 16, 2020 | By DeFrancisco & Falgiatano

Not all medical malpractice cases arise out of bodily harm; rather, in some instances, a medical malpractice case will arise out of the alleged breach of patient-doctor confidentiality. Regardless of the harm alleged, however, it is critical for the plaintiff to prove he or she suffered actual damages. This was explained in a recent primary care malpractice case in which the court found that a genuine issue of fact existed as to whether the defendant harmed the plaintiff, precluding dismissal via summary judgment. If you sustained damages due to a negligent primary care physician, it is wise to speak with a skillful Syracuse primary care malpractice attorney to discuss your potential damages.

Factual Background

It is reported that the plaintiff, who worked as a schoolteacher, began suffering from respiratory issues while at work. She attempted numerous treatments, but her symptoms persisted. Approximately a year later, the superintendent of the school district that employed the plaintiff asked the defendant primary care physician to examine the plaintiff pursuant to Education Law 913 to determine if the plaintiff was able to perform her job duties. The defendant examined the plaintiff and then sent a report of his findings to the superintendent.

Allegedly, the defendant annexed medical records from other providers that he received from the plaintiff to the report. The plaintiff then filed a medical malpractice lawsuit against the defendant, alleging he violated patient-doctor confidentiality by disclosing the records she provided to him. The defendant filed a motion for summary judgment, which the trial court denied. The defendant then appealed.

New York Court Discusses Speculative Expert Reports in Medical Malpractice Cases

Published on: February 10, 2020 | By DeFrancisco & Falgiatano

In all but the clearest of cases, a plaintiff alleging he or she suffered harm due to medical malpractice must retain an expert who will testify as to the manner in which the defendant healthcare provider caused the plaintiff’s harm. Similarly, the defendant must produce an expert report, refuting the plaintiff’s allegations. If either party fails to produce an adequate expert report, it may adversely affect their position in the case. This was demonstrated in a recent nursing malpractice case decided by a court in the Appellate Division of the Supreme Court of New York, in which the court dismissed the plaintiff’s claims due to the speculative nature of the plaintiff’s expert report. If you or a loved one suffered harm due to negligent care provided in a nursing facility, it is in your best interest to meet with a trusted Syracuse nursing malpractice attorney who will zealously pursue an outcome in your favor.

Facts of the Case

It is reported that the plaintiff’s decedent was admitted to the defendant rehabilitation and nursing center. During his admission, he received intravenous antibiotic therapy. He ultimately fell ill and died. The plaintiff then filed a medical malpractice lawsuit against the defendant center and defendant nurse, alleging they were negligent in failing to manage the decedent’s care properly and in failing to transfer him to a hospital for treatment. After discovery was completed, the defendants filed individual motions for summary judgment. The trial court denied the defendants’ motions, and the defendants appealed. On appeal, the court reversed the trial court ruling and granted the defendants’ motions, dismissing the plaintiff’s claims.

Requirements of Expert Affirmations

It is axiomatic that in a New York medical malpractice, the plaintiff must establish that the defendant deviated from the standard of care accepted in the community in which the defendant practices and that the deviation proximately caused the plaintiff to suffer harm. If the defendant demonstrates via an expert affidavit that there is no issue of material fact as to either element, the plaintiff’s claims should be dismissed unless the plaintiff is able to establish a triable issue of fact in opposition to the defendant’s expert report.

New York Court Discusses Evidence Evaluated in Ruling on a Defendant’s Motion for Summary Judgment

Published on: February 5, 2020 | By DeFrancisco & Falgiatano

In any medical malpractice case filed in New York, the plaintiff must set forth a bill of particulars establishing the manner in which the defendant’s care caused the plaintiff’s harm. In turn, if the defendant rebuts the specific allegations in the plaintiff’s bill of particulars, thereby sufficiently showing that he or she did not cause the plaintiff’s harm, the plaintiff’s claims against the defendant may be dismissed. The plaintiff can avoid dismissal, however, by demonstrating that there are factual issues that need to be resolved via trial. Recently, the Supreme Court, Appellate Division, Second Department, New York, discussed what constitutes sufficient evidence of an issue of fact to withstand a dismissal in a case in which the plaintiff alleged he was harmed by neurology malpractice. If you sustained damages due to negligent care provided by a neurologist, it is critical to engage a Syracuse neurology malpractice attorney who will fight diligently on your behalf.

Facts Regarding the Plaintiff’s Treatment and Procedural History

It is reported that the plaintiff suffered a fistula of a spinal artery, after which he was admitted to the defendant hospital, where he underwent diagnostic testing. Following the test, he experienced weakness in his left leg. He then underwent a surgical procedure to repair the fistula. The plaintiff ultimately filed a medical malpractice lawsuit against the practitioners who performed the diagnostic test and surgery and the hospital, arguing that the procedures were performed negligently, causing him to suffer neurological harm.

It is alleged that the plaintiff set forth a bill of particulars with broad allegations regarding the negligent acts and omissions of the hospital and physicians, and alleged that as a result of their malpractice he suffered neurological damages, which affected the function of his legs, bowel, and bladder. The plaintiff discontinued the action against the individual defendants, leaving only his claims against the hospital. The hospital then filed a motion for summary judgment, which the trial court granted. The plaintiff appealed.

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.