Syracuse Medical Malpractice and Personal Injury Lawyer Blog

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.

New York Court Explains Standard for Granting a Motion for Judgment as a Matter of Law in Medical Malpractice Cases

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

Surgeons are required to possess the skills and training of other surgeons in their local community. As such, for a plaintiff to recover on a surgical malpractice claim he or she must show, in part, that the defendant surgeon performed the operation in a manner that deviated from the accepted practice in the community. If a surgeon performed a surgery in an accepted manner, a malpractice claim will not lie, even if the manner was not the preferred method. This was illustrated in a recent New York case in which the court affirmed the defendant’s motion for judgment as a matter of law, due to a lack of evidence that the defendant deviated from the standard of care. If you were injured due to a negligently performed surgical procedure, you should meet with a skillful Syracuse medical malpractice attorney regarding your case to assess what damages you may be able to recover.

Factual and Procedural Background

The plaintiff underwent a brachioplasty, which was performed by the defendant. A brachioplasty, which is commonly referred to as an arm lift, is a surgical procedure that reshapes a patient’s arms. The plaintiff subsequently filed a surgical malpractice lawsuit against the defendant arguing he negligently performed the surgery thereby causing her harm. The case proceeded to trial, and at the close of the plaintiff’s case, the defendant filed a motion for judgment as a matter of law, which the court granted. The plaintiff appealed. On appeal, the court affirmed.

Court Discusses Standard for Granting Extension of Time to Serve New York Medical Malpractice Complaint

Published on: March 25, 2019 | By DeFrancisco & Falgiatano

There are multiple facets that must combine for a plaintiff’s medical malpractice claim to be successful. First, the plaintiff must possess sufficient facts and evidence to show that the defendant medical provider should be held liable for the plaintiff’s alleged harm. Additionally, the plaintiff must comply with the procedural rules that dictate the manner in which a claim is prosecuted. For example, even if a plaintiff can present a strong case against a defendant, if the plaintiff fails to serve the initial pleading in a lawsuit in a timely manner, it may detrimentally affect his or her claim. In some cases, a plaintiff may be granted an extension of time to serve a lawsuit. A New York court recently discussed the standards for determining whether to grant a plaintiff an extension to serve a Complaint in a medical malpractice case. If your medical provider rendered negligence care that caused you to sustain an injury or illness, it is important to retain a knowledgeable Syracuse medical malpractice attorney to assist you in pursuing your claim.

Procedural Background

Reportedly, the plaintiff instituted a medical malpractice action in November 2016 by filing a Complaint. The Complaint set forth allegations that the defendant committed medical malpractice due to the failure to remove broken glass from the plaintiff’s leg. The defendant was reportedly served with the Complaint in December 2016. In February 2017, however, the defendant filed an answer to the Complaint and set forth the affirmative defense of lack of personal jurisdiction. The plaintiff then moved for an extension of time to serve the defendant with a Complaint. The defendant filed a counter motion to dismiss the Complaint due to lack of personal jurisdiction. The trial court granted the plaintiff’s motion and denied the defendant’s motion, after which the defendant appealed.

New York Court Discusses Standard for Granting Summary Judgment in Medical Malpractice Cases

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

In medical malpractice cases, the burden shifts from the plaintiff, who must set forth evidence of the defendant’s malpractice, to the defendant, who must set forth evidence that he or she comported with the standard of care. When there is conflicting evidence the issue of whether the defendant committed malpractice is typically presented to a jury. In some cases, however, the evidence allows the court to find in favor of one party prior to a trial.

A New York appellate court recently discussed the standards for granting a motion for summary judgment in a medical malpractice case in which the court affirmed judgment in favor of the defendant. If you suffered harm because of a medical practitioner’s negligent failure to conduct necessary tests or diagnose an illness in a timely manner to ensure medical treatment, you should speak with a skilled Syracuse medical malpractice attorney regarding whether you may be able to recover damages for your harm.

The Decedent’s Treatment and Subsequent Death

Allegedly, the plaintiff’s decedent was a resident in a nursing home owned by the defendant for approximately fifteen months prior to her death in January 2012. The decedent suffered from several chronic health conditions, but her immediate cause of death was indicated as cardiopulmonary arrest caused by heart disease and atherosclerosis. Following an autopsy, the decedent’s final cause of death was determined to be aspiration pneumonia. The plaintiff then filed a lawsuit against the defendant alleging, in part, medical malpractice. Specifically, the plaintiff alleged that the defendant committed malpractice by failing to diagnose the decedent’s dysphagia, and failing to prevent or treat the decedent’s aspiration pneumonia. The defendant filed a motion for summary judgment which the trial court granted. The plaintiff subsequently appealed.

New York Court Dismisses Medical Malpractice Case for Plaintiff’s Failure to Participate in Discovery

Published on: March 12, 2019 | By DeFrancisco & Falgiatano

In medical malpractice cases, a plaintiff’s right to recover damages depends on both the factual evidence in support of his or her claim and whether he or she complies with the procedural requirements set forth under the law. Even if a plaintiff has clear evidence of malpractice, he or she may be precluded from recovering from the defendant if he or she refuses to comply with the obligations imposed by the law.

This was evidenced in a recent case in which the appellate division of the Supreme Court of New York affirmed the dismissal of the plaintiff’s case due to a willful refusal to participate in discovery. If you or a loved one suffered damages due to medical treatment that fell below the standard of care, you should speak with a knowledgeable Syracuse medical malpractice attorney as soon as possible to analyze the circumstances that brought about your harm and your options for pursuing compensation.

Facts Regarding the Decedent’s Treatment

Reportedly, in 2007, the plaintiff took her grandson to the emergency department of the defendant hospital for treatment. The child was examined and discharged that day. He passed away at home five days after his visit to the defendant hospital. The plaintiff filed a medical malpractice lawsuit against the defendant hospital in 2009. Subsequently, in 2015, the defendant filed a demand for the plaintiff to prosecute the case, pursuant to the New York statute imposing penalties for the failure to disclose information. The plaintiff then filed a motion for an extension of time to file a note of issue. The court granted the motion but ordered the plaintiff to appear for a deposition on or before May 27, 2016. The plaintiff failed to appear for a deposition, and in July 2016 the defendant filed a motion to dismiss the plaintiff’s complaint. The court granted the motion, after which the plaintiff appealed.