Syracuse Medical Malpractice and Personal Injury Lawyer Blog

New York Court Discusses Parameters of Continuous Treatment Doctrine in Failure to Diagnose Malpractice Case

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

Under New York law, a plaintiff who wishes to pursue a medical malpractice claim arising out of a doctor’s negligent failure to diagnose and treat the plaintiff in an appropriate time frame must file a lawsuit within two years and six months of the date of the alleged harm. While certain factors, such as the doctor’s ongoing treatment of the plaintiff will toll the statute of limitations, not all treatment constitutes continuous treatment for purposes of tolling the statute. A New York appellate court recently discussed what treatment is sufficient to toll the statutory period, in a case arising out of alleged ophthalmic malpractice. If you suffered harm due to your physician’s failure to provide you with a proper diagnosis in a timely manner you should consult a trusted Syracuse failure to diagnose malpractice attorney to discuss the circumstances surrounding your harm and what damages you may be able to recover.

Factual Background of the Case

It is alleged that the plaintiff filed a medical malpractice action against the defendant ophthalmic practice and defendant ophthalmologist due to the failure to promptly diagnose and treat the plaintiff’s glaucoma. The alleged malpractice occurred on February 25, 2011, July 15, 2011, and December 6, 2013. The defendants filed a motion to dismiss the plaintiff’s case as time-barred. The trial court denied the defendants’ motion, and the defendants appealed.

Care Under the Continuous Treatment Doctrine

A defendant arguing that a plaintiffs’ medical malpractice lawsuit is barred by the applicable statute of limitations must set forth prima facie evidence that the time in which the plaintiff was required to commence his or her lawsuit has expired. If the defendant establishes the statutory period has passed, the burden shifts to the plaintiff to raise a material issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine.
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New York Court Addresses Scope of Informed Consent

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

Any time a person needs to undergo a surgical procedure, the doctor performing the procedure is required to obtain the person’s informed consent. In other words, the doctor must explain to the person the risks, benefits, and potential outcomes of the surgery, and obtain consent from the person to proceed with the procedure. Even if a doctor obtains informed consent prior to performing a procedure, if the doctor exceeds the scope of the consent it may constitute surgical malpractice, as discussed in a recent case ruled on by a New York court of appeals. If your surgeon did not obtain your valid consent prior to your surgery and you suffered harm as a result you should speak with a trusted Syracuse surgical malpractice attorney who can assist you in seeking any compensation you may be owed.

Factual Background of the Surgical Procedure

Reportedly, the defendant doctor performed an exploratory laparoscopic surgical procedure on the plaintiff at the defendant hospital. Prior to undergoing the procedure, the surgeon obtained consent from the plaintiff to remove her fallopian tubes in the event a malignancy was discovered during the surgery. The plaintiff underwent the procedure, during which her fallopian tubes were removed despite the fact that no malignancy was found.

It is reported that the plaintiff then filed a surgical malpractice claim against the defendants. The defendants filed motions to dismiss the plaintiff’s claims for failure to serve the complaint in a timely manner and for failure to state a meritorious claim. The trial court denied the defendants’ motions, and the defendants appealed.
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New York Court Explains Proximate Cause in Hospital Malpractice Case

Published on: May 22, 2019 | By DeFrancisco & Falgiatano

There are several elements an injured party must establish to successfully prove a hospital malpractice claim. Thus, even if a person can show a hospital breached the standard of care, the breach may not be actionable if it did not result in any harm. this was illustrated in a case recently decided by a New York appellate court, in which the court dismissed the plaintiff’s complaint due to the failure to show that the departure from the standard of care resulted in the harm alleged. If you sustained an injury or illness due to hospital malpractice it is critical to engage a proficient Syracuse hospital malpractice attorney as soon as possible to help you pursue the full amount of damages you may be owed.

Facts Regarding the Plaintiff’s Treatment and Alleged Harm

Reportedly, the plaintiff presented to the defendant hospital when she was six weeks pregnant, with complaints of bleeding and severe pain. She underwent a blood test and an ultrasound to determine whether she had an intrauterine pregnancy, an ectopic pregnancy, or was suffering a miscarriage. The radiologist who interpreted the ultrasound determined that the plaintiff had a single intrauterine pregnancy. She was discharged from the hospital and directed to follow-up with her gynecologist.

It is alleged that the following day the plaintiff visited the defendant obstetrician, who ran additional bloodwork and advised the plaintiff that based on her bloodwork and the preliminary report from the radiologist that she was having a miscarriage. That same day, the defendant hospital issued an amended radiology report in which it stated that it was not certain whether there was a gestational sac in the uterus. The amended report was not sent to the defendant obstetrician. Approximately six weeks later, the plaintiff was diagnosed with an ectopic pregnancy and underwent surgery to remove her left fallopian tube.
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New York Court Discusses Reduction of Liability Based on Proportion of Fault in Multi-Defendant Malpractice Case

Published on: May 14, 2019 | By DeFrancisco & Falgiatano

When a patient is provided the wrong medication or the wrong dosage of a properly prescribed medication it may result in significant harm and in some cases, death. Often times multiple care providers will be responsible for administering the wrong dosage of medication to a plaintiff. In such cases, New York law provides that if a defendant is less than 50% responsible for the plaintiff’s harm, the defendant is only liable for its proportionate share of the plaintiff’s non-economic damages. A New York appellate court recently analyzed the nuances of this law in a medication error malpractice case in which one of the defendants settled prior to trial. If you were harmed due to a medication error, it is critical to retain a knowledgeable Syracuse medication error malpractice attorney to assist you in pursuing damages.

Facts Regarding the Decedent’s Treatment

Reportedly, the decedent was admitted to the defendant hospital for left-sided weakness and was subsequently diagnosed with having a transient ischemic attack. At the time of her admission, the decedent was taking a cholesterol-lowering medication that potentially could cause a breakdown of muscles and kidney damage when taken in large doses. While she was in the hospital, she was prescribed four times her prior dosage of the cholesterol-lowering medication.

It is alleged that the decedent was transferred to a rehabilitation facility, where she continued to receive the increased dosage of the cholesterol-lowering medication. The decedent’s condition deteriorated, and she ultimately died of kidney failure. The plaintiff, who was the executor of the decedent’s estate, file a medical malpractice lawsuit against the hospital and the rehabilitation facility.
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Court Rules the New York Continuous Treatment Doctrine Does Not Toll the Statute of Limitations for the Failure to Diagnose

Published on: May 4, 2019 | By DeFrancisco & Falgiatano

Medical malpractice cases, like any civil lawsuit, must be pursued within the time frame established by the statute of limitations. While the courts strictly construe the statute of limitations for pursuing a medical malpractice claim in New York, there are certain circumstances that allow a plaintiff to toll the statutory period, such as the continuous treatment doctrine. The United States District Court for the Northern District of New York recently held the continuous treatment doctrine does not toll the statute of limitations for a failure to diagnose, in a case in which the plaintiff who was harmed by his doctor’s failure to diagnose and treat his kidney cancer in a timely manner sought leave to amend his complaint to add additional claims. If you sustained damages due to your physician’s failure to diagnose or treat your illness, it is vital to recovery to meet with a proficient Syracuse medical malpractice attorney to discuss your case.

The Plaintiff’s Care

It is alleged that the plaintiff treated at the defendant hospital for kidney issues for several years. He began treating in 2006 when a lesion was observed on his kidney on a CT scan. Subsequent scans in 2009, 2010, and 2011, showed the lesion as well, but no diagnosis or treatment was provided for the lesion. In 2011, the plaintiff treated with a urologist who advised him to wait six months and then follow-up, and in 2012 he underwent an ultrasound that indicated the lesion was suspicious for carcinoma. He then underwent surgery to remove the lesion, which was diagnosed as renal cell carcinoma.

It is reported that the plaintiff subsequently filed a malpractice lawsuit against the hospital due to the delay in diagnosing his cancer. The plaintiff’s complaint only included the defendant’s negligent failure to diagnose his cancer from 2009 onward, as the earlier claims were precluded by the statute of limitations. The defendant then produced an expert report that stated that there was no progression of the cancer from 2009 to 2012. In response, the plaintiff filed a motion for leave to amend the complaint, to add additional negligence claims for the failure to properly diagnose his cancer from 2006 to 2009, arguing that the amendment was permitted under the continuous treatment doctrine.

Court Explains the Standard for Assessing a Jury’s Damage Award in a Obstetric Malpractice Case

Published on: April 26, 2019 | By DeFrancisco & Falgiatano

In an obstetric malpractice case in which the plaintiff alleges inadequate care harmed a child, the plaintiff bears the burden of proving not only that the defendant obstetrician’s negligent care was the cause of the harm, but also the damages caused by the harm. In most cases, a jury assessing damages for the harm caused to a child at birth will assess the cost of the child’s ongoing treatment and the financial detriment to the child in the future due to his or her injuries. While the court is reluctant to disturb a jury’s findings, in cases where the verdict is deemed unreasonable, the verdict may be overturned. This was demonstrated in a recent New York case in which the court found that the jury’s damages award for harm caused by obstetric malpractice materially deviated from what is reasonable. If your child was injured by obstetric malpractice it is vital to retain a capable Syracuse medical malpractice attorney to assist you in your pursuit of compensation.

Facts Regarding the Plaintiffs’ Care

Reportedly, the plaintiff’s mother was under the care of the defendant obstetrician during her pregnancy. She was diagnosed with cervical insufficiency, and the plaintiff was subsequently born at 24 weeks gestation and allegedly suffered multiple neurological injuries. The plaintiff’s mother subsequently filed a medical malpractice lawsuit against the defendant, alleging that the defendant deviated from the accepted standard of care by failing to offer her a cerclage to prevent premature birth and failing to obtain a maternal fetal medicine consult, which resulted in her the plaintiff’s harm. The case was tried in front of a jury, which awarded the plaintiff a total of $20 million in pain and suffering, lost earnings of $113,000, and additional damages for therapy. The defendant filed a motion to set aside the verdict as contrary to the weight of the evidence.

The Standard for Evaluating a Verdict

Under New York law, what constitutes an appropriate damages award is a question for the plaintiff, and it will usually not be disturbed unless the court finds the jury materially deviated from what would be considered reasonable compensation. In determining what constitutes reasonable compensation, the court should look at the relevant precedent of similar cases. In the subject case, the court reviewed cases relied upon by both the plaintiff and the defendant in support of what constituted reasonable damages. The court ultimately found the cases produced by the defendant to be more persuasive and determined the damages awarded to the plaintiff for pain and suffering materially deviated from what is reasonable in light of the nature and extent of his injuries. The court denied the defendant’s motion as to the remainder of the damages, however.
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New York Court Discusses Sufficiency of Evidence Needed to Defeat Summary Judgment in a Surgical Malpractice Case

Published on: April 18, 2019 | By DeFrancisco & Falgiatano

In surgical malpractice cases, there is a shifting burden from the defendant to the plaintiff to provide competent evidence to prove whether there is sufficient evidence to show that the defendant deviated from the accepted standard of care. In most cases, each party will produce an expert affidavit supporting his or her position. A New York appellate court recently discussed what could constitute sufficient evidence to rebut a defendant’s prima facie showing that he did not commit surgical malpractice, in a case in which the defendant sought a dismissal via summary judgment. If you were injured due to a surgical error, you should retain a capable Syracuse surgical malpractice attorney to assist you in your pursuit of compensation from your negligent care providers.

Facts Regarding the Plaintiff’s Surgery

Allegedly, the plaintiff underwent surgery to extract a stone from his left ureter. The surgery was performed by the defendant and was completed without incident. Approximately one day later, however, the plaintiff returned to the hospital with complaints of pain in his abdomen and an inability to urinate. He underwent a CT scan which revealed a perforation in his bladder. He then underwent a second surgery to repair the perforation. The plaintiff subsequently sued the defendant in a medical malpractice lawsuit. The defendant filed a motion for summary judgment, to which the plaintiff responded by filing an unsworn expert affidavit. The court subsequently denied the defendant’s motion, after which he appealed.

Elements of Proof in a Medical Malpractice Action

The elements of proof in a medical malpractice action are a deviation from the accepted standard of care, and evidence the deviation proximately caused the plaintiff’s harm. A defendant seeking the dismissal of medical malpractice claims via summary judgment must establish by prima facie evidence that he or she did not depart from the standard of care, or that the departure did not harm the plaintiff. If the defendant makes a sufficient prima facie showing, the burden then shifts to the plaintiff to show a triable issue of material fact. Further, a court should not grant summary judgment where the parties produce conflicting opinions from medical experts.
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Court Discusses what is Discoverable in a New York Medical Malpractice Case

Published on: April 18, 2019 | By DeFrancisco & Falgiatano

Physicians must undergo years of specialized schooling before they are permitted to practice medicine. As such, we expect that they should be able to provide acceptable medical care and diagnose and treat any illness in an appropriate time frame. When a patient is harmed due to his or her physician’s failure to treat an illness facts and information regarding the patient’s treatment from the date of the initial visit through the ultimate diagnosis is essential to proving the physician’s delay in diagnosing the plaintiff constitutes malpractice. A New York appellate court recently analyzed what documents the plaintiff is permitted to request while seeking that information, in a case in which the plaintiff alleged he suffered the loss of his leg due to a delayed diagnosis. If you sustained harm because of a delayed diagnosis it is critical to speak with a seasoned Syracuse medical malpractice attorney as soon as possible to determine your options for seeking compensation.

Facts Regarding the Plaintiff’s Treatment

Allegedly, the plaintiff injured his left foot, after which he underwent surgery which was performed by the defendant. The plaintiff then suffered an ischemic injury, which resulted in the swelling, gangrene, and infection, and ultimately the loss of the plaintiff’s leg from the knee down. The plaintiff filed a medical malpractice lawsuit against the defendant, alleging his harm was caused by the defendant’s failure to manage and treat the ischemic injury. During discovery, the plaintiff filed a motion to compel the audit trail of his treatment records, which he argued was relevant to the timing and sequence of his care following his surgery. Specifically, each time the records were accessed an entry was created which included information about the plaintiff’s care. The court denied the plaintiff’s motion, after which the plaintiff appealed.

Discoverable Materials in Medical Malpractice Cases

Under New York law, any information that is material and necessary must be disclosed in a civil action, regardless of the burden of proof. This has been interpreted to mean that any facts that will narrow issues and are relevant to the underlying dispute must be disclosed. As such, necessary means helpful, not indispensable. Further, any information that is sought in good faith that may be used in support of the party’s position in a case is to be considered material. A party seeking materials must show that the request is reasonably calculated to lead to relevant evidence. In the subject case, the court found that the plaintiff met his burden of showing that the audit trail was reasonably likely to lead to relevant evidence. Further, the defendant failed to show the court that the request was improper. Thus, the court reversed the trial court order and granted the plaintiff’s motion to compel.
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New York Court Rules Dead Man’s Statute Does Not Preclude Evidence of Written Consent in a Medical Malpractice Case

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

Prior to surgery, the physician performing the surgery will typically obtain the patient’s informed consent. The process of obtaining informed consent involves advising the patient of any potential risks to the surgery and asking if the patient understands the risks and consents to the surgery regardless of the risks it presents. A failure to obtain informed consent can form the basis of a surgical malpractice claim if the patient suffers harm as a result of the surgery.

Determining whether valid consent was obtained is a fact-specific analysis. Recently, a New York court evaluated whether the Dead Man’s Statute precluded a deceased patient’s written consent form from evidence in support of the defendant surgeon’s motion for summary judgment. If you suffered harm due to surgical malpractice you should speak with a trusted Syracuse medical malpractice attorney as soon as you can to discuss whether you may be able to recover compensation.

The Plaintiff’s Decedent’s Surgery

Reportedly, the plaintiff’s decedent, who suffered from morbid obesity and sleep apnea, underwent arthroscopic surgery on his knee. The surgery was performed without incident by the defendant surgeon, while the decedent was under general anesthesia administered by the defendant anesthesiologist. Immediately after the surgery, the decedent was unresponsive. He then went into cardiac arrest. The surgical team made efforts to resuscitate the decedent, but they were unsuccessful, and he died.
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New York Court Explains Grounds for Late Notice of a Birth Injury Claim Against a Public Corporation

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

Many hospitals are not privately owned but are actually public corporations. If a child suffers a birth injury due to medical malpractice at a hospital that is a public corporation, different procedural rules apply for pursuing a claim for damages against the hospital. For example, notice of any claim must be provided within 90 days of when the claim accrues. An appellate division of the Supreme Court of New York recently discussed when a plaintiff will be granted leave to file late notice of a claim, in a case arising from a birth injury. If you live in Syracuse and your child suffered an injury at birth, it is important to speak with a skilled Syracuse birth injury attorney regarding your case as soon as possible.

Reportedly, the plaintiff’s mother presented to the emergency department of the defendant hospital on November 23, 2010. She was 40 weeks and 4 days pregnant at the time, and complained of vaginal leakage, decreased fetal activity, and pain. She was examined and then discharged and sent home. Two days later, the plaintiff was born via an emergency cesarean section at the defendant hospital. The plaintiff was diagnosed with cerebral palsy and brain damage due to perinatal and neonatal asphyxiation.

It is alleged that the plaintiff’s father served the hospital with notice of a claim on August 29, 2013, and the hospital acknowledged receipt of the notice. Then, in March 2014, the plaintiff’s father filed a medical malpractice lawsuit on behalf of the plaintiff, alleging that the malpractice of the hospital’s employees caused the plaintiff’s harm. Specifically, it was alleged that the hospital breached the applicable standard of care in discharging the plaintiff’s mother when she first visited the hospital. Further, it was alleged the hospital breached the standard of care in failing to deliver the plaintiff via a cesarean section in a timely manner.