Syracuse Medical Malpractice and Personal Injury Lawyer Blog

New York Court Finds Failure to Substitute Constitutes a Failure to Prosecute a Medical Malpractice Case

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

If a person dies due to inadequate medical care, the person’s loved ones may still be able to pursue a claim against the negligent medical providers. There are certain procedural requirements that must be complied with in pursuing a medical malpractice claim following the death of a loved one, and the claim must be pursued in a timely manner.

Recently, a case ruled on by a New York court illustrated the dangers of failing to pursue a claim, as the plaintiffs lost the right to pursue damages due to a delay in substituting the appropriate party. If you or a loved one suffered damages due to inadequate medical care, it is essential to retain a trusted Syracuse medical malpractice attorney as soon as possible to avoid waiving your right to recover.

Procedural Background

Allegedly, the plaintiff sued the defendant nursing and rehabilitation center for medical malpractice and violations of the Public Health Law arising out of nursing home negligence that occurred in 2013. The plaintiff’s decedent died on September 30, 2013. The plaintiff did not institute her lawsuit until April 6, 2018, which was two years after the passing of the applicable statute of limitations. The defendant filed a motion to dismiss the action as untimely.

New York Court Discusses Standards for Evaluating the Sufficiency of a Medical Malpractice Expert Report

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

In many cases, a medical malpractice claim is only a strong as the plaintiff’s expert report. If a plaintiff’s expert cannot adequately prove that a doctor breached the standard of care, it can result in a dismissal of the plaintiff’s claim, and, therefore, results in a loss of the plaintiff’s right to recover damages.

The Appellate Division of the Supreme Court of New recently discussed the standards for evaluating the sufficiency of a plaintiff’s expert report, in a case in which the court found the plaintiff’s expert failed to show a breach of the standard of care and dismissed the plaintiff’s case. If you sustained damages due to a doctor’s failure to treat you in an appropriate manner, it is important to retain a skillful Syracuse medical malpractice attorney who will assist you in obtaining an expert that can help you show your doctor should be liable for your harm.

Facts Regarding the Plaintiff’s Treatment

Reportedly, the plaintiff was treated by the defendant, an ophthalmologist, due to pain in his right eye, trouble focusing, and a drooped eyelid. The defendant examined the plaintiff and assessed the plaintiff as suffering from glaucoma. He advised the plaintiff to return in six months, or sooner if his symptoms worsened. Six months after his treatment with the defendant, the plaintiff was diagnosed with a meningioma, a benign brain tumor, and underwent surgery. The plaintiff subsequently filed a medical malpractice claim against the defendant for failing to properly diagnose the plaintiff or recommend further testing. Following the completion of discovery, the defendant filed a motion for summary judgment, which the court granted. Plaintiff appealed.

New York Court Discusses Sufficiency of Evidence in Medical Malpractice Cases

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

If a medical malpractice case proceeds to trial, whether a not the jury finds in favor of the plaintiff largely hinges on the testimony and evidence offered by each party. Generally, a jury is free to credit or discredit the evidence presented and a jury’s verdict will not be disturbed unless it is clear the verdict could not have been reached through a fair interpretation of the facts of the case.

The Appellate Division of the Supreme Court of New York recently explained the standard for evaluating a jury’s verdict in a medical malpractice case, in a case where the jury found in favor of the defendant. If you suffered damages due to incompetent medical treatment, you should consult a knowledgeable Syracuse medical malpractice attorney to discuss the circumstances surrounding your treatment and whether you may be able to recover damages for your harm.

The Plaintiff’s Treatment and Subsequent Lawsuit

Allegedly, the defendant performed a procedure on the plaintiff, which was intended to prevent her from becoming pregnant. During the procedure the defendant placing a coil into each of the plaintiff’s fallopian tubes, which caused inflammation and the closure of the tubes. The tubes placed during the procedure contain nickel. The defendant did not test the plaintiff for a nickel allergy before or after the procedure. The plaintiff subsequently tested positive for a nickel allergy. She then filed a medical malpractice case against the defendant. The case was tried in front of a jury and the jury found in favor of the defendant. The plaintiff filed a motion to set aside the verdict as against the weight of the evidence. The trial court denied the order, after which the plaintiff appealed.

Court Rules a Nurse Was Qualified to Offer Expert Testimony in New York Medical Malpractice Case

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

In almost all medical malpractice cases both the plaintiff and the defendant will need to engage experts to prove their claims. Just as medical malpractice cases are not limited to claims against doctors, the experts in medical malpractice cases are not required to be doctors. Rather, any medical care provider qualified to offer an opinion on the disputed issue can be an expert.

This was illustrated in a case heard by a New York appellate court, in which the court affirmed that a nurse’s expert testimony was properly admitted. If you suffered harm due to inadequate medical care, you should meet with a skilled Syracuse medical malpractice attorney as soon as possible to discuss the facts of your case and your options for seeking compensation from the parties responsible for your harm.

Facts Regarding the Decedent’s Care

It is alleged that the decedent was admitted to the defendant hospital and diagnosed with cancer. For the next two months, he was treated as an inpatient, with the exception of ten days when he was discharged to his home. He ultimately died of cancer, after which his wife filed a lawsuit against the defendant hospital, alleging malpractice due to the hospital’s failure to properly prevent and treat the decedent’s pressure ulcers while he was admitted at the hospital. The case proceeded to trial, after which a jury found in favor of the plaintiff, awarding her $500,000 for the defendant’s conscious pain and suffering prior to his death. The defendant moved to set aside the verdict or for a new trial, which the trial court denied. The defendant then appealed.

New York Court Overturns Dismissal of Medical Malpractice Case Due to Disputed Facts

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

Medical malpractice cases are typically fact-intensive and whether a plaintiff’s case is successful often depends on an expert’s interpretation of the facts. In cases where the defendant seeks to have a case dismissed, the defendant must show that there is no evidence that it breached the applicable standard of care, or if it did the breach was not the cause of the plaintiff’s harm. In arguing the care provided was not negligent, however, the defendant cannot pick and choose which facts should be considered.

This was recently explained by an appellate court in New York in a case in which the court overturned a ruling dismissing the plaintiff’s claims against the defendant on the grounds that there was a factual dispute as to the care provided. If negligent medical care caused you harm, you should consult an experienced Syracuse medical malpractice attorney to analyze the facts surrounding your treatment and whether you may be able to pursue damages.

The Plaintiff’s Treatment

It is reported that the plaintiff presented to the defendant physician assistant three times over an 11 day period in 2008 with complaints of ear pain, sinus pain, and headaches. The defendant physician assistant diagnosed the plaintiff with an ear infection and sinusitis and prescribed him antibiotics. His symptoms continued to worsen and he visited the emergency department of the defendant hospital twice during the 11 day period, where he allegedly complained of a severe headache and stated he believed he had suffered a stroke.

New York Court Dismisses Medical Malpractice Case Due to Insufficient Evidence

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

To avoid liability in a medical malpractice case in the New York court system, the medical care provider must prove that he or she did not deviate from the accepted standards of care and practice. The plaintiff can refute this claim by producing an expert who will testify that the provider did, in fact, deviate from the accepted standard for care, and the deviation caused the plaintiff’s harm.

If the plaintiff is unable to produce an expert to testify with a reasonable degree of certainty that the provider breached the standard of care, the plaintiff’s case will be dismissed, as shown in a recent case in the New York courts, in which the plaintiff alleged he was injured during a colonoscopy. If you were injured during a standard medical procedure, you should speak with a seasoned Syracuse medical malpractice attorney to analyze whether you may be able to seek damages from the negligent care provider.

Factual Background

It is alleged that the plaintiff underwent a colonoscopy in June 2016. The colonoscopy, which was performed for screening purposes, did not indicate any significant issues. Following the colonoscopy, the plaintiff was observed in the recovery room for several hours. He reported abdominal pain and discomfort, but did not vomit, and was discharged the same day. A few days later, he followed up with his primary care physician, reporting heartburn, nausea, and dyspepsia, and was prescribed an antacid. The following day he went to the emergency room, where he was diagnosed with a perforated colon and underwent a colectomy. The plaintiff subsequently filed a medical malpractice lawsuit against the doctor that performed the colonoscopy, alleging the defendant negligently performed the colonoscopy and failed to diagnose the plaintiff’s perforated colon. The defendant filed a motion for summary judgment, alleging the plaintiff could not prove he deviated from the standard of care.

Court Analyzes Notice to Public Corporation Required to Pursue Medical Malpractice Claims Under New York Law

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

In medical malpractice cases, as with all cases, it is important to follow any procedural rules. If a plaintiff does not properly comply with the laws regarding notice and statutory limitations periods, he or she may waive the right to recover damages regardless of whether the defendant medical professional provided inadequate care. For example, under New York medical malpractice law, a plaintiff pursuing a medical malpractice claim against a public corporation is required to provide the corporation with notice of the essential facts of the claim within 90 days of the alleged harm.

Recently, a New York appellate court discussed the notice requirements and what constitutes actual notice, in a medical malpractice case pursued against a municipal rescue squad. If you sustained permanent injuries because of negligent care from a medical professional, it is important to consult a trusted Syracuse medical malpractice attorney in a timely manner to avoid waiving your right to recover.

Plaintiff’s Injury and Subsequent Care

Allegedly, the plaintiff tripped and fell down a flight of stairs while she was at a restaurant. The defendant fire and rescue squad responded to a call for emergency medical services. The defendant’s emergency medical technician (EMT) evaluated the plaintiff and provided her with care until a paramedic arrived. The plaintiff was transported to the hospital by the paramedic, and upon her arrival at the hospital reported a loss of sensation in her legs. The plaintiff was ultimately diagnosed a partial paraplegic.

Court Affirms New York Jury’s Finding that Doctor’s Negligence did not Cause the Alleged Harm

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

Medical malpractice claims typically allege that a medical provider negligently breached the standard of care and therefore, the provider should be responsible for any harm the injured party sustained because of the inadequate care. To recover under a medical malpractice claim alleging negligence, in addition to proving that the medical provider’s care was negligent, you must show that the negligence was the actual cause of your damages.

This was illustrated in a recent case decided by the appellate division of the Supreme Court of New York, in which the court affirmed a jury’s verdict in favor of the defendant medical provider, despite finding he provided negligent care. If you were harmed by inadequate medical care, you should seek a consultation with a trusted Syracuse medical malpractice attorney in a timely manner to discuss what options you have for pursuing damages from the responsible parties.

Plaintiff’s Allegations and the Jury Ruling

The plaintiff sued the defendant doctor for allegedly improperly performing diagnostic arthroscopic knee surgery, without her consent. The plaintiff claimed that as a result of the surgery, which was unnecessary, she suffered neurovascular injuries. During the trial, the defendant and plaintiff each presented evidence from experts certified in orthopedic surgery and neurosurgery. The jury ultimately found that the defendant deviated from the standard of care in his pre-surgical examination of the plaintiff, but the deviation was not the proximate cause of the plaintiff’s alleged injuries. Additionally, the jury found that the defendant did not deviate from the standard of care in any other way in his treatment of the plaintiff and that the defendant obtained the plaintiff’s informed consent prior to performing the surgery. The plaintiff filed a motion to set aside the jury’s verdict, alleging that the jury’s verdict was contrary to and against the weight of the evidence. The court denied the motion, and the plaintiff appealed.

New York Court Finds an Issue of Fact Exists as to When Treatment Ended in a Medical Malpractice Case

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

Under New York law, medical malpractice actions must be filed within two and a half years of the last date of treatment or they may be barred as untimely. Depending on the nature of the relationship between the patient and treatment provider, however, the last date of treatment may be up for debate.

Recently, the Supreme Court of New York held that an issue of fact existed as to whether an injured party’s treatment with a medical practice could be imputed to the surgeon that allegedly caused her harm. If you suffered injuries or illness due to insufficient medical care, it is in your best interest to consult a seasoned Syracuse medical malpractice attorney as soon as possible to determine whether you may be able to seek compensation from one or more of the medical providers that caused you harm.

Plaintiff’s Treatment

Reportedly, on March 18, 2011, the plaintiff underwent a bilateral mastectomy with a first surgeon and immediately after underwent a bilateral breast reconstruction with a second surgeon. The plaintiff subsequently contracted a MRSA infection at the surgical site, and receive treatment for the infection from the second surgeon until November 14, 2011. She also continued to receive treatment from the first surgeon at the practice that employed both surgeons until October 2012. On September 30, 2014, the plaintiff filed a medical malpractice lawsuit against both surgeons. The second surgeon filed a motion for summary judgment, arguing the plaintiff’s claims against her were barred by the two and a half year statute of limitations for medical malpractice actions in New York. The court denied the motion and the second surgeon appealed. On appeal, the court affirmed.

Medical Malpractice Lawsuits Involving Multiple Myeloma

Published on: December 28, 2018 | By DeFrancisco & Falgiatano

If you or someone close to you suffered from multiple myeloma and you believe that the doctor was negligent in your diagnosis or treatment, you should consider contacting a seasoned Syracuse medical malpractice attorney. At DeFrancisco & Falgiatano Personal Injury Lawyers, we are dedicated to truly understanding what happened in your case so we can guide you appropriately. We know how emotionally draining this process can be, which is why we will handle your case with the utmost compassion. Our goal is to protect your rights and resolve your case in the most fair and timely manner possible.

Multiple Myeloma

Multiple myeloma is a type of cancer that impacts the plasma cells in the blood. Plasma cells assist your body in fighting infections by creating antibodies that identify and attack germs but when a patient has multiple myeloma, the plasma cells inside the bone marrow often produce or perform abnormally. These atypical plasma cells start to divide nonstop and make more abnormal cells to the extent that they crowd out healthy blood cells. The condition is progressive and it is often deadly within three years of the diagnosis.