Syracuse Medical Malpractice and Personal Injury Lawyer Blog

New York Court Discusses Penalties for a Plaintiff’s Failure to Prosecute in a New York Hospital Malpractice Case

Published on: November 5, 2019 | By DeFrancisco & Falgiatano

While many people who suffer harm due to medical malpractice wish to resolve any lawsuit arising out of the malpractice as quickly as possible, some people delay in pressing the case forward. In cases where a delay constitutes a violation of the rules of civil procedure, it may result in the injured party’s case being dismissed altogether. Recently, a New York court discussed the ramifications of a plaintiff’s failure to prosecute a claim in a hospital malpractice case. If you or someone you loved were harmed by negligent care rendered in a hospital, it is in your best interest to speak with a diligent Syracuse hospital malpractice attorney to discuss your options for seeking damages.

Facts of the Case

It is alleged that the plaintiff’s decedent was a resident of the defendant nursing home and received care at the defendant hospital prior to her death. In November 2014, after the plaintiff’s decedent passed away, the plaintiff instituted a malpractice claim against the defendants, alleging that they breached the applicable standards of care, thereby causing the decedent’s death.

Reportedly, on March 20, 2019, the defendants served a 90-day notice on the plaintiff for failing to prosecute the case. The notice advised the plaintiff’s that a default would be entered against her if she did not take action. The plaintiff then filed a motion to vacate the notice or in the alternative for an extension of time to file a note of issue.

New York Court Discusses Avoiding Dismissal of a Malpractice Claim

Published on: October 31, 2019 | By DeFrancisco & Falgiatano

When a child suffers harm at birth, it is often due to the negligence of the doctor that cared for the mother during her pregnancy or the doctor that delivered the child. Thus, if it can be established that the doctors failed to provide appropriate care, the child and his or her parents may be awarded damages. If a defendant ob-gyn establishes that the care he or she provided was adequate, though, the plaintiff’s case may be dismissed. Recently, a New York appellate court discussed the shifting burdens of proof in medical malpractice cases and what the plaintiff must prove to avoid dismissal via summary judgment. If you or your child suffered harm due to the negligence of your ob-gyn doctor, it is wise to consult a capable Syracuse ob-gyn malpractice attorney regarding what you must prove to recover compensation.

Facts of the Case

It is reported that the plaintiff filed a medical malpractice claim against two groups of defendants on behalf of her infant son. Specifically, the plaintiff alleged that the negligent care of the collective defendants caused the minor plaintiff to suffer injuries due to a premature birth. The parties conducted discovery, after which each group of defendants moved for summary judgment. The court granted the defendants’ motions, after which the plaintiff appealed.

Avoiding Dismissal of an Ob-Gyn Malpractice Claim

It is well established that a plaintiff seeking to recover damages in an ob-gyn malpractice case must show that the defendant deviated from the applicable standard of care and that the deviation caused the plaintiff’s harm. Thus, if a defendant sets forth prima facie evidence that he or she did not depart from the standard of care, or that any such departure did not cause the plaintiff’s harm, the burden will shift to the plaintiff to show a material issue of fact exists as to whether the defendant was negligent.

New York Court Discusses Liability of Residents in Medical Malpractice Cases

Published on: October 29, 2019 | By DeFrancisco & Falgiatano

Many hospitals and facilities not only provide medical care, but they also act as learning institutions for doctors in training. Thus, in many cases, a patient will be treated by a resident who is supervised by an attending physician. The duties imposed on supervised medical personal differ from those exercising independent judgment, as explained in a recent medical malpractice case decided by the Appellate Division of the Supreme Court of New York, and in some cases, a resident may not be held liable for an injured patient’s harm. If you were injured by negligent medical care, it is advisable to speak with a dedicated Syracuse medical malpractice attorney to discuss your potential claims.

The Plaintiff’s Treatment

It is alleged that the plaintiff’s decedent underwent gallbladder removal surgery, during which his liver was lacerated. He subsequently died from bleeding complications. The plaintiffs then filed wrongful death and lack of informed consent claims against the defendant medical center, and defendant resident. As to the defendant resident, the plaintiffs alleged that he failed to test the decedent’s blood coagulation profile or to address the decedent’s coagulation issues prior to the surgery. The defendant resident filed a motion for summary judgment, which the court denied. The defendant appealed.

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

Published on: October 21, 2019 | By DeFrancisco & Falgiatano

Medical malpractice cases largely hinge on the sufficiency and persuasiveness of the expert reports submitted by either party. If the defendant does not have a compelling expert report, he or she may be found liable as a matter of law, whereas if the plaintiff lacks a strong report, his or her case may be dismissed via a motion for summary judgment. In a neurosurgery malpractice case recently decided by a New York appellate court, the court analyzed what constitutes a report sufficient to withstand dismissal via summary judgment. If you were injured by an improperly performed neurological surgery, it is prudent to consult a capable Syracuse neurosurgery malpractice attorney regarding your harm and what compensation you may be owed.

Facts Regarding the Plaintiff’s Treatment

It is alleged that the plaintiff was involved in a motorcycle accident, after which he developed extreme back pain. He underwent conservative treatment measures, which failed, after which he presented to the defendant neurosurgeon. The defendant diagnosed the plaintiff with spondylolisthesis at the L5-S1 vertebrae, and degenerative disc disease at the L4-L5 vertebrae and recommended surgery. The plaintiff sought a second opinion but ultimately underwent surgery.

It is reported that during the surgical procedure, the defendant removed the damaged discs, decompressed the plaintiff’s nerves, and fixated the spine. After the surgery, the plaintiff experienced severe back pain and discomfort in his left leg, which he stated was different than the pain he experienced before the surgery. He subsequently filed a malpractice lawsuit against the defendant. The defendant and the plaintiff both filed motions for summary judgment. The court granted the defendant’s motion, and the plaintiff appealed.

New York Court Discusses Grounds for Precluding Evidence in a Nursing Malpractice Case

Published on: October 15, 2019 | By DeFrancisco & Falgiatano

In nursing malpractice cases, like any other civil case, it is essential for both parties to comply with deadlines and to answer discovery requests in promptly, so that the case may be resolved in an equitable and efficient manner. Thus, if a party fails to abide by the statutory deadlines and obligations, it may waive the right to produce evidence at trial. Recently, the appellate division of the New York Supreme Court discussed what constitutes sufficient grounds to preclude a party from introducing evidence in a nursing malpractice case. If you suffered harm due to inappropriate care rendered by a nurse, you should meet with a knowledgeable Syracuse nursing malpractice attorney regarding your harm and what compensation you may be owed.

Factual and Procedural Background

It is reported that the plaintiff’s decedent was a resident at the defendant’s nursing and rehabilitation facility. During her stay, she suffered a pulmonary injury and a leg injury. She was subsequently transferred to a hospital, where she died. The plaintiff asserted a nursing malpractice claim against the defendant. During discovery, the plaintiff requested information regarding the nurses that worked at the defendant facility during the time the plaintiff’s decedent was admitted. The defendant refused to provide the information, and the plaintiff filed a motion to compel.

Allegedly, the defendant then provided the plaintiff with certain identifying information pursuant to a court order. The plaintiff subsequently moved to prohibit the defendant from producing any evidence at trial and to strike the defendant’s answer due to the defendant’s refusal to comply with discovery demands. The court denied the plaintiff’s motion, after which the plaintiff appealed.

Court Discusses Shifting Burden of Proof in New York Hospital Malpractice Cases

Published on: October 8, 2019 | By DeFrancisco & Falgiatano

If a person suffers injuries in a hospital, the hospital may be liable for the person’s harm. The standard for imposing liability against a hospital in a medical malpractice case is the same as the standard from proving the liability of an individual defendant, in that a plaintiff must show a deviation from the standard of care caused his or her harm. The failure to establish proximate cause can be fatal to a plaintiff’s claims, as illustrated in a recent hospital malpractice case decided by the appellate division of the Supreme Court of New York. If you sustained injuries in a hospital due to inadequate care, it is important to meet with a zealous Syracuse hospital malpractice attorney to discuss whether you may be able to recover damages.

Factual Background

It is alleged that the plaintiff, who was 87-years-old, visited the emergency room of the defendant hospital due to an infection in her foot. The defendant’s staff assessed the plaintiff as being at risk for falling and placed the plaintiff on fall protocol. The following morning, however, the plaintiff fell from her bed and fractured her hip. She required surgery to treat her fracture. She subsequently filed a medical malpractice claim against the defendant. The defendant filed a motion for summary judgment, arguing that the plaintiff could not establish liability. The court granted the defendant’s motion, and the plaintiff appealed.

Proving a Hospital’s Liability

A defendant hospital seeking to have a case dismissed via summary judgment bears the burden of proving either that there was no deviation from the applicable standard of care or that any deviation was not the proximate cause of the plaintiff’s alleged harm. If the defendant meets this burden, the plaintiff must produce evidence of a triable issue of fact in response to the defendant.

New York Court Discusses Effects of Failure to Comply with Procedure in a Medical Malpractice Case

Published on: September 30, 2019 | By DeFrancisco & Falgiatano

If a person dies due to medical malpractice, the administrator of the person’s estate can file a lawsuit seeking compensation on behalf of the estate. Regardless of the merits of the underlying claim, however, if the party seeking damages does not comply with the procedural requirements for pursuing claims on behalf of the estate, the claim may be dismissed. This was demonstrated in a recent medical malpractice case which was dismissed due to the plaintiff’s inappropriate filings. If you suffered the loss of a loved one due to medical malpractice it is critical to retain a skilled Syracuse medical malpractice attorney to help you seek damages.

Factual and Procedural Background

Reportedly, in 2015, the plaintiff filed a lawsuit against the defendant, setting forth causes of action of medical malpractice on behalf of her decedent’s estate, arising out of nursing home negligence in January through September 2013. The plaintiff’s decedent died on September 30, 2013, but the plaintiff was not named as the administratrix of the decedent’s estate until January 2018. The case was dismissed by the court for the failure to prosecute. The plaintiff filed a motion to reinstate the action.

Dismissal of a Case Due to Improper Commencement

On appeal, the court affirmed the dismissal of the case and denied the plaintiff’s motion. The court stated that the action was improperly commenced and should have been dismissed at the outset, due to the plaintiff’s failure to obtain proper letters of administration. Further, the court noted that the plaintiff’s attorney lacked any authority to act until the proper party was substituted. As the case was dismissed due to the failure to prosecute, however, the court was limited to addressing the arguments set forth in the plaintiff’s motion.

New York Court Analyzes Sufficient Evidence to Withstand Summary Judgment in Medical Malpractice Cases

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

Under New York law, the burden shifts in medical malpractice cases from the plaintiff to the defendant, who must prove that he or she is entitled to judgment as a matter of law. If the defendant meets this burden, the case will be dismissed, unless the plaintiff produces sufficient evidence to establish an issue of fact exists as to whether the defendant committed malpractice. Recently, in a case in which the plaintiff alleged that her son was harmed by urological malpractice, a New York appellate court analyzed what constitutes sufficient evidence to raise a triable issue of fact. If you were harmed by urology malpractice it is essential to engage a knowledgeable Syracuse urology malpractice attorney to assist you in pursuing a claim for damages.

Factual and Procedural Background

It is reported that the plaintiff mother took the plaintiff son to the emergency room due to complaints of pain. He was later diagnosed with testicular torsion and lost his right testicle. The plaintiffs subsequently filed a malpractice lawsuit against the urologist who treated plaintiff son in the emergency room, alleging that the failure to properly diagnose and treat the plaintiff son caused the loss of his right testicle. The defendant moved for summary judgment. In response, the plaintiffs submitted an affidavit of a Connecticut physician certified in pediatric emergency medicine.

It is alleged that the court found that the plaintiffs’ expert affidavit was insufficient to establish a triable issue of fact and granted the defendant’s motion. Specifically, the court stated that the plaintiffs’ expert was not qualified to opine on urological care and that he failed to establish that the standards of care in Connecticut were the same as those in New York. The plaintiffs appealed.

Court Discusses Proximate Cause in New York Surgical Malpractice Case

Published on: September 23, 2019 | By DeFrancisco & Falgiatano

Surgeons are highly skilled and trained and are required to provide treatment commensurate with their training. Surgeons sometimes fall short of the standard of care, however, and when they do, they should be held accountable for any harm they cause. A New York appellate court recently discussed what constitutes sufficient evidence of surgical malpractice, in a case in which the plaintiff alleged a spinal surgeon caused her injuries. If you or a loved one were harmed by a negligent surgeon, it is critical to meet with a zealous Syracuse surgical malpractice attorney to discuss whether you may be able to recoup damages for your harm or the harm of your loved one.

Factual Background

It is alleged that the plaintiff injured her back in a workplace accident in February 2010. She was subsequently referred to the defendant surgeon after epidural steroid injections failed to alleviate her symptoms. An MRI in June 2010 revealed compression of the lumbar spine, and the defendant recommended surgery. Approximately one month later, the defendant performed a discectomy and decompression surgery on the plaintiff. Following the surgery, the plaintiff reported decreased strength in her right leg. An MRI was performed, and the results indicated an impingement on a nerve. The plaintiff was discharged and had three follow-up appointments with the defendant.

Reportedly, in September 2010, the plaintiff was advised she would have to undergo additional surgery if her symptoms did not improve. The plaintiff continued to treat with the defendant for a few additional months and then sought treatment from a second spinal surgeon. The second surgeon recommended another discectomy or fusion surgery. The plaintiff underwent a discectomy, which only partially improved her symptoms. She subsequently filed a medical malpractice lawsuit against the defendant, arguing in part that the defendant proximately caused the plaintiff’s injuries by not recommending surgery when he evaluated her in August 2010. The jury found in favor of the plaintiff, after which the defendant filed a motion to set aside the verdict. The court granted the motion and plaintiff appealed.

New York Court Discusses Substitution of Parties in Medical Malpractice Cases

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

In many medical malpractice cases filed in New York, the court dismisses the case due to procedural errors, regardless of whether the plaintiff has a valid claim. For example, in instances in which a person is deceased due to medical malpractice, the claim must be pursued by a personal representative rather than the deceased individual. An appellate court of New York recently discussed the procedural aspects of pursuing a claim following a person’s death due to medical malpractice, in a case in which the plaintiff alleged hospital malpractice caused the death of his child. If you or your child were injured by hospital malpractice it is crucial to retain an experienced Syracuse hospital malpractice attorney to provide you with a strong chance of a successful outcome under the facts of your case.

Factual and Procedural History of the Case

Allegedly, the plaintiff father’s child was treated at the defendant hospital. The child subsequently died, after which the plaintiff father filed a hospital malpractice case, naming the deceased child as the plaintiff. The child’s mother was named as a plaintiff as well, in her individual capacity. The plaintiff father then filed a motion to substitute himself as the administrator of the child’s estate as a plaintiff and to amend the caption. He also sought leave to amend the complaint to include a wrongful death claim. The defendant hospital filed a cross-motion to dismiss the complaint on the grounds the motion for substitution was untimely. The court denied the plaintiff father’s motion and granted the defendant’s, after which the plaintiffs appealed.

Motion for Substitution Under New York Law

Under the New York Rules of Civil Procedure, a motion for substitution must be made within a reasonable time. In determining whether a motion for substitution is timely, the court will evaluate several factors, including whether the party seeking substitution was diligent, whether the claim or defense has potential merit, and whether the other party will suffer prejudice as a result of the substitution.