Syracuse Medical Malpractice and Personal Injury Lawyer Blog

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.

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

Published on: September 6, 2019 | By DeFrancisco & Falgiatano

Generally, a plaintiff has the right to decide where to pursue his or her medical malpractice claim. There are limitations, however, in that a court cannot render rulings in a case in which it has no jurisdiction over an entity or person who is named as a defendant. In a recent hospital malpractice case arising out of the Appellate Division of the Supreme Court of New York, the court explained when the exercise of jurisdiction over an out of state defendant is valid. If you or a family member were rendered insufficient care in a hospital and suffered harm as a result it is critical to meet with a knowledgeable Syracuse hospital malpractice attorney regarding your options for seeking compensation for your harm.

Facts and Procedure of the Case

It is reported that the plaintiff’s decedent received treatment at the defendant hospital, which was located in Pennsylvania, where he was cared for by several physicians. The plaintiff filed a medical malpractice and wrongful death case against the defendant hospital and numerous individually named physicians, all of whom practiced solely in Pennsylvania. The defendants collectively filed a motion for summary judgment, arguing that the court lacked personal jurisdiction and the case must be dismissed. The court granted the motion and the plaintiff appealed.

Exercising Jurisdiction Over Out of State Defendants

On appeal, the court rejected the plaintiff’s assertion that the defendant hospital consented to jurisdiction by registering as a foreign corporation in New York, or that the named defendants consented to jurisdiction by obtaining licenses to practice medicine in New York. Additionally, the court was not persuaded by the plaintiff’s argument that the defendants waived the right to object with regards to personal jurisdiction, due to the fact that the parent company of the defendant hospital accepted service on behalf of the defendants. The court explained that the acceptance of service, standing alone, did not constitute a waiver or an objection to personal jurisdiction. Continue Reading ›

New York Court Discusses Standing to Pursue Medical Malpractice Claims on Behalf of an Estate

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

In New York medical malpractice cases, if a plaintiff seeks to recover damages on behalf of an estate, he or she must comply with the New York Rules of Civil Procedure, otherwise, the plaintiff runs the risk of having his or her case dismissed. This was demonstrated in a recent hospital malpractice case decided by the Appellate Division of the Supreme Court of New York, in which the court discussed when a plaintiff’s case could be dismissed due to lack of standing to recover on behalf of the estate. If you or a loved one were injured by inadequate care rendered by a hospital it is vital to speak with a seasoned Syracuse hospital malpractice attorney to discuss what evidence you must produce to recover damages.

Factual and Procedural Background of the Case

Reportedly, in 2016, the plaintiff filed medical malpractice and wrongful death claims against the defendant hospital and defendant nursing home that cared for his mother prior to her death. The plaintiff filed the case as the proposed administrator of his mother’s estate. The defendants subsequently filed separate motions to dismiss, arguing that the plaintiff lacked the capacity to sue on behalf of the estate since official letters of administration had not been granted. The court granted the defendant nursing home’s motion on June 1, 2016, and the defendant hospital’s motion on October 18, 2016.

It is alleged the plaintiff then filed a second suit that was virtually identical as a voluntary administrator of the estate. The defendant again moved to dismiss the plaintiff’s case, arguing he was not permitted to bring claims on behalf of the estate. The plaintiff was then granted letters of administration. Thus, he opposed the defendant’s motion, arguing it should be denied because he had letters of administration, and moved to amend the pleadings to recognize him as the administrator. The court ruled that the prior lawsuit was terminated by the May 26 order and granted the defendant’s motion and the plaintiff appealed.

New York Court Discusses a Primary Care Physician’s Liability for Harm Caused by Third-Parties

Published on: August 28, 2019 | By DeFrancisco & Falgiatano

While most medical malpractice cases are straightforward and merely allege harm caused by inadequate care provided by a doctor, some cases allege a physician should be held liable for inappropriate acts committed by a third party. In a recent case, the Supreme Court of New York, Bronx County analyzed whether a primary care physician could be held liable under for medical malpractice for criminal acts committed by a physical therapist the plaintiff was referred to by the physician. If you sustained harm due to the negligent care or referral of a primary care physician, it is prudent to meet with a trusted Syracuse primary care physician malpractice attorney as soon as possible to discuss whether you may be entitled to compensation.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff treated with the defendant neurologist who diagnosed the plaintiff with a concussion and a spinal injury. The defendant neurologist prescribed physical therapy for the plaintiff and then referred the plaintiff to the defendant primary care physician (PCP). In turn, the primary care cleared the plaintiff for physical therapy following a physical examination. The plaintiff underwent physical therapy with the defendant student therapist, at the direction of the defendant PCP.

Allegedly, during one of the therapy sessions, the defendant student sexually assaulted the plaintiff. The plaintiff subsequently filed a medical malpractice lawsuit against the defendants alleging, in part, that the defendant PCP improperly prescribed medications and physical therapy, and knew or should have known that the defendant student would engage in sexual abuse and failed to protect the plaintiff from harm. The defendant PCP filed a motion for summary judgment, which the court ultimately granted.

Court Affirms Dismissal of New York Emergency Room Malpractice Case Due to Failure to Serve Complaint

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

When a person wishes to pursue a medical malpractice claim in New York, he or she must not only prove that the defendant doctor negligently caused his or her harm, the person must also serve the defendant with the lawsuit within the statutorily prescribed timeframe. In other words, even if a lawsuit is filed within the appropriate time period, a party’s claim may nonetheless be dismissed if it is not properly served. A court of the appellate division of the Supreme Court of New York recently illustrated the importance of timely service, in a case in which the court affirmed the dismissal of an emergency room malpractice case. If you were harmed by inadequate care rendered by an emergency room physician, it is crucial to meet with a trusted Syracuse emergency room malpractice attorney regarding your harm and your potential claims.

Facts and Procedure of the Case

It is reported that the plaintiff visited the emergency department of the defendant hospital in November 2012. In December 2014, the plaintiff filed a malpractice lawsuit against the defendant hospital and defendant doctor, arising out of the defendant doctor’s alleged failure to diagnose the plaintiff with a large pneumothorax during his November 2012 emergency room visit. In September 2015, the plaintiff filed a motion to extend his time to serve the defendant doctor with the summons and complaint, which the court granted. In January 2016, a process server allegedly delivered a copy of the summons and complaint to a person of appropriate age and discretion at the defendant doctor’s place of business. Additionally, the process server mailed a copy of the summons and complaint to the defendant doctor at his place of business.

It is alleged that on April 2016, the plaintiff moved for leave to file a default judgment against the defendant doctor, due to his failure to enter an appearance or file a response to the complaint. The court granted the motion. The defendant doctor subsequently filed a motion to vacate the order granting the default judgment and to determine the validity of the service of process. The plaintiff filed a cross-motion for an extension of time to serve the defendant doctor with the complaint and summons. The court ultimately found that the defendant doctor was not properly served, vacated the order granting default judgment, and dismissed the plaintiff’s complaint as it pertained to the defendant doctor. The plaintiff appealed.

New York Court Addresses Doctor’s Liability for Prescribing Opioids

Published on: August 13, 2019 | By DeFrancisco & Falgiatano

Primary care physicians provide patients with generalized care for a variety of conditions, including chronic pain. While opioid painkillers can provide essential relief to many people with chronic pain, they must be administered with caution and patients taking opioids must be carefully monitored, to prevent abuse and diversion. If a physician negligently fails to use proper care when prescribing opioid painkillers, he or she may be held liable for any harm the patient suffers as a result, as demonstrated in a recent case ruled upon by the Appellate Division of the Supreme Court of New York. If you or a loved one sustained damages due to pain medication that was inappropriately prescribed by your primary care physician, it is advisable to meet with a skillful Syracuse medical malpractice attorney to discuss your options for seeking recourse for your injuries.

Facts of the Case

It is alleged that the plaintiff’s decedent was involved in a car accident in 2007, in which she injured her left shoulder. She subsequently underwent surgery for her shoulder and was prescribed narcotic pain medication. She then began repeatedly requesting pain medication, but she was denied. The plaintiff’s decedent underwent additional surgery and was again prescribed pain medication by her orthopedic surgeon. She admitted that she was taking her medication in greater quantities and more frequently than prescribed. She requested additional medication, but her request was denied, and she was advised she would not receive any more medication.

It is reported that the plaintiff’s decedent then treated with another doctor, who noted that plaintiff’s decedent had track marks on her arm and diagnosed her with an opioid dependency, and a second doctor, who discharged her from his practice for using cocaine. The decedent then began treating with the defendant. She advised the defendant that she received pain medication from her orthopedic doctor, but she was looking for a local doctor. The defendant prescribed the decedent high-dose Oxycontin and Xanax. He never lowered her dosage or contacted the decedent’s orthopedic doctor. The decedent died of acute intoxication of fentanyl, heroin, Oxycontin, and Xanax.

New York Court Discusses a Hospital’s Liability for a Resident’s Acts

Published on: August 2, 2019 | By DeFrancisco & Falgiatano

In many cases in which a person is injured by inadequate medical care there will be more than one entity or care provider liable for his or her harm. For example, hospitals can be held accountable for harm caused by a resident due to an improperly performed procedure. Recently, the appellate division of the Supreme Court of New York analyzed when a hospital may be deemed liable for the negligent care provided by a surgical resident. If you suffered harm due to the negligence of a hospital or any other care provider, it is essential to consult an experienced Syracuse hospital malpractice attorney regarding what you must prove to hold the hospital liable for your injuries.

Factual Background

It is alleged that the plaintiff underwent an attempted lumbar fusion surgery at the defendant hospital. The vascular part of the surgery was performed by the defendant surgeon, who was assisted by a resident. Early on in the procedure, the defendant surgeon encountered problems with the plaintiff’s iliac veins, which began profusely bleeding. The defendant surgeon attempted to repair the veins, which lead to increased tearing and blood loss. The plaintiff was then hospitalized for several months while he recovered. He then filed a medical malpractice lawsuit against the defendants. The defendants filed a motion for summary judgment. The trial court granted the motion, after which the plaintiff appealed.

A Hospital’s Liability for a Resident’s Negligence

On appeal, the court held, in part, that the hospital met its burden of proof by showing that the resident it agreed to hold harmless and defend did not exercise any independent judgment during the surgery. The court noted that, under New York law, a resident who aids a doctor during a medical procedure cannot be held liable for medical malpractice if the resident did not exercise any independent medical judgment, unless the doctor’s directions so greatly deviated from the standard of care the resident was obligated to intervene. Continue Reading ›

Court Discusses Standard for Setting Aside a Jury’s Verdict in a New York Medical Malpractice Case

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

In most New York medical malpractice cases, the plaintiff will request a trial by a jury of his or her peers. Thus, if the case proceeds to trial, the jury will determine issues of fact and credibility, and render a verdict based on its assessment. Although jury trials are an essential part of our country’s civil litigation process, in some instances a jury issues a verdict that is against the weight of the evidence. In such cases, there are procedures in place that allow parties to seek recourse for verdicts they deem unfounded. A New York appellate court recently discussed the basis for setting aside the verdict in a surgical malpractice case. If you were injured by surgical malpractice it is important to engage an assertive Syracuse surgical malpractice attorney who will aggressively advocate on your behalf throughout each stage of your case.

Factual Background of the Case

Allegedly, the decedent was admitted to the defendant medical center to undergo a hip replacement. Following the surgery, she developed gastrointestinal bleeding. She subsequently died due to cardiac and respiratory arrest as a result of the bleeding. The plaintiff, the executor of the decedent’s estate, filed a surgical malpractice lawsuit against the defendant surgeon. The plaintiff also asserted a vicarious liability claim against the defendant medical center, alleging it was liable for the actions of the defendant surgeon. Following a trial, the jury found in favor of the defendant. The plaintiff filed a motion to set aside the verdict, arguing that it was against the weight of the evidence. The court denied the plaintiff’s motion, after which he appealed.

Setting Aside a Jury Verdict as Against the Weight of the Evidence

Under New York law, a court may not disregard a jury’s verdict as against the weight of the evidence, unless the evidence is so heavily in favor of the party asking the verdict to be set aside that the verdict could not have been reached by a fair interpretation of the evidence. Here, the court noted that in a medical malpractice case, the plaintiff has the burden of proving that it is more likely than not that the defendant deviated from the accepted standard of care, and that the deviation proximately caused the plaintiff’s alleged harm. Further, the court stated that hospitals and medical centers can be held vicariously liable for the negligence of their employees. Continue Reading ›

New York Court Discusses Impact of Orders Regarding the Admissibility of Evidence in Medical Malpractice Cases

Published on: July 28, 2019 | By DeFrancisco & Falgiatano

New York medical malpractice cases typically hinge on the sufficiency of each party’s expert testimony. If a party fails to provide an expert report, or his or her expert reports are deemed inadmissible, it can have a devastating effect on the party’s position. In a recent OB-GYN malpractice case in which the plaintiff alleged her child suffered harm due to negligent pre-natal care, the Appellate Division of the Supreme Court of New York addressed the impact of orders limiting the admissibility of evidence on both parties. If your child suffered an injury due to inadequate medical care during your pregnancy it is essential to meet with a capable Syracuse OB-GYN malpractice attorney to discuss the facts of your case and to develop a plan for seeking damages for your child’s harm.

Factual Background

Allegedly, the plaintiff mother began suffering pregnancy complications, including bleeding and leaking fluid, when she was twenty-five weeks pregnant. She was referred to the defendant obstetrician-gynecologist, who examined her and scheduled a follow-up appointment. Prior to the next appointment, the plaintiff mother once again began bleeding and therefore went to the emergency room. She was subsequently transferred to another hospital, where she went into labor. Because the plaintiff infant was in a breech position, he was delivered via a cesarean section.

Reportedly, the plaintiff mother was twenty-eight weeks pregnant at the time of the plaintiff infant’s birth. The plaintiff infant was diagnosed with cerebral palsy. The plaintiffs subsequently filed a lawsuit against the defendant obstetrician gynecologist, alleging his malpractice caused the plaintiff infant to suffer severe and permanent injuries. The defendant filed a motion for summary judgment, which the court denied, finding there were triable issues of fact. The defendant then filed a motion to deem the plaintiff’s expert witnesses’ testimony inadmissible. The court denied that motion and the defendant appealed.

New York Court Discusses Waiver of Privilege in a Radiology Malpractice Case

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

In any New York medical malpractice lawsuit, certain information will be protected from disclosure based on a privilege afforded by the law. For example, there is certain information that is privileged under New York Public Health and Education laws, and a defendant can refuse to produce information under the privilege. If the defendant waives the privilege, however, it loses the right to argue that the protected information cannot be used as evidence. Recently, a New York court discussed the standards of reviewing privilege and waiver in a radiology malpractice case. If you suffered harm because of inappropriate radiological care, it is critical to speak with a knowledgeable Syracuse radiology malpractice attorney regarding the circumstances surrounding your harm and what compensation you may be able to recover.

Facts and Procedures of the Case

Allegedly, the plaintiff’s decedent presented to the defendant hospital for a CT guided needle biopsy to be performed by the defendant radiologist. The defendant physician mistakenly placed the biopsy needle in the decedent’s aorta, ultimately resulting in her untimely death. The plaintiff’s estate filed a radiology malpractice lawsuit against the defendants. During discovery, plaintiff’s counsel sought to depose a neurologist who examined the defendant radiologist for the purposes of determining his mental and physical capacity and competence in rendering care. The neurologist also produced a written report of his findings. The defendants filed a motion for a protective order, arguing that the neurologist’s testimony and report were privileged. The trial court granted the motion and the plaintiffs appealed.

Privilege in Medical Malpractice Cases

The court noted that the testimony and report were privileged under Public Health Law § 2805–m(2) and Education Law § 6527(3). The court stated, however, that when a party discloses a privileged document it typically waives the privilege unless the party intended for the document to remain confidential and took reasonable steps to prevent its disclosure. The court indicated that in the subject case, the document was originally disclosed by the examining neurologist in a different lawsuit. The defendant’s act of filing the report in the other lawsuit, however, permitted the report to be disclosed to the public at large. Specifically, the court noted that the defendant did not file the report under seal or take any other steps to prevent its disclosure. Thus, the court found that the defendant had waived the statutory privilege by disclosing the report. As such, the court reversed the trial court ruling.