Syracuse Medical Malpractice and Personal Injury Lawyer Blog

Expert Witness Testimony Excluded from Evidence on the Issue of Standard of Care in Medical Malpractice Lawsuit

Published on: November 30, 2017 | By DeFrancisco & Falgiatano

Medical malpractice claims require testimony from expert witnesses in order to articulate the relevant standard of care for the medical professional who allegedly committed the negligent act. Not all expert testimony is admissible in New York medical malpractice cases. In fact, the United States Supreme Court articulated several factors that expert testimony must meet in order to be admissible. A November 16, 2017 decision, Norman v. All About Women PA, et al., case number K14C-12-003, reviewed an expert’s testimony on the standard of care in a medical malpractice lawsuit.

The plaintiff went to a clinic and received a diagnostic laparoscopy procedure, and during the operation, her bladder was punctured. She also alleged that the doctor closed her up without fixing the wound, requiring additional surgeries and hospital visits. The plaintiff filed a medical malpractice lawsuit and offered the expert testimony of a doctor to define the relevant standard of care broadly accepted within the medical community.

New York law has two primary elements in medical malpractice lawsuits. The plaintiff must establish that the actions of the medical professional deviated from the accepted standard of care and that such a deviation caused an injury to the plaintiff.

Doctor’s Failure to Timely Respond to Spinal Injury Leads to Paralysis, Alleges Plaintiff

Published on: November 23, 2017 | By DeFrancisco & Falgiatano

When it comes to surgery, timing can be everything. If the body reacts in unexpected ways to a surgical procedure, the physician performing the operation needs to react quickly in order to prevent long-term injuries or even death. It’s unfortunate, but instances of New York surgical malpractice are not uncommon. In a recent surgical malpractice case, the plaintiff alleged that he suffered permanent injuries because the surgeon performing the operation failed to act fast enough and caused permanent injuries.

The plaintiff was admitted to a medical center to treat what doctors speculated was a spinal epidural abscess. This condition involves the build-up of pus in the spine. The result is a compressed spinal cord and can be treated by antibiotics or, alternatively, by draining the build-up of pus. The medical center’s resident physician was assigned to the plaintiff’s care, and he correctly surmised that the plaintiff had a spinal epidural abscess before he consulted with another doctor.

What the plaintiff alleged in the lawsuit was troubling. Even though the assigned physician had initially speculated that the plaintiff had an abscess, the physician allegedly did not order an MRI or another method to confirm the diagnosis. In addition, he did not seek to remove the abscess until the plaintiff could no longer move his legs.

Plaintiff Alleges that Mental Health Facility Intentionally Destroyed Evidence in Hospital Malpractice Case

Published on: November 16, 2017 | By DeFrancisco & Falgiatano

New York hospital malpractice cases require the review of voluminous medical records. Hospitals and health care providers are required to maintain these records, so a claim should simply be a matter of reviewing what’s disclosed or produced in the pre-trial discovery process. The facts surrounding a medical malpractice decision in which a behavioral health center destroyed physical medical records even after a lawsuit was pending are especially shocking. Without the records, this put the plaintiff at a serious disadvantage to prove the case. The court reviewed what should happen in an evidence spoliation case involving medical malpractice.

In this case, the decedent had a history of mental health problems. When his wife of over three decades passed away, he attempted suicide, which resulted in a December 2013 emergency room visit. The decedent was then admitted to a mental health facility. The decedent and his son, who was his legal guardian at the time, signed a voluntary admission form. The decedent was discharged from the clinic a few months later. Tragically, however, he committed suicide 10 days later.

The family of the decedent requested that the mental health facility retain the decedent’s records because they were considering a potential medical malpractice claim. The facility’s compliance chief ordered that the decedent’s paper records be sequestered. The family hired an attorney, who began discussions about the scope of document preservation with the facility. However, a new employee, who testified that she was not aware that records needed to be maintained, scanned the records electronically and then shredded the paper version.

Misinterpretation of Genetic Testing Results Leads to OB-GYN Errors Lawsuit for Unnecessary Surgeries

Published on: November 9, 2017 | By DeFrancisco & Falgiatano

Genetic testing is a medical breakthrough that allows people to know whether they are at risk for certain life-threatening conditions. For example, genetic testing can be used to determine whether someone is at an elevated risk for certain types of cancer. If the physician analyzes the testing correctly, he or she may suggest that a patient undergo preventative surgery to greatly reduce the risk of cancer developing. Unfortunately, as a recent lawsuit shows, sometimes doctors can negligently perform genetic testing and perform completely unnecessary surgeries on a patient. A New York medical malpractice lawyer can help you bring a claim if this has happened to you.

The plaintiff, a woman in her mid-30s, went to visit an obstetrician-gynecologist, who reviewed her genetic testing and concluded that she had a 50% probability of being diagnosed with breast cancer and an 80% chance of being diagnosed with uterine cancer. As a result of the genetic testing, the plaintiff stated that she underwent the recommended procedures, a double mastectomy and a hysterectomy, to reduce her chances of getting those forms of cancer.

Her OB-GYN tested her for two specific gene mutations after the plaintiff notified her physician of a family history of cancer. The lawsuit alleges that the results were negative, but the nurse practitioner misinterpreted the results, and the plaintiff was allegedly told that she had a gene mutation that increased her risk of breast and uterine cancers. The nurse practitioner, who misinterpreted the results, referred the plaintiff to specialists, including a gynecologist, who performed her hysterectomy, and another surgeon, who performed her double mastectomy and reconstruction. The lawsuit complaint alleges that neither of the doctors independently confirmed the genetic testing results.

Former High School Tennis Star Awarded Seven Figures in New York Orthopedic Malpractice Lawsuit

Published on: November 2, 2017 | By DeFrancisco & Falgiatano

Athletes and people living active lifestyles risk injuries such as pulling muscles or tearing ligaments. Orthopedic specialists often work with athletes to help repair those types of sports-related injuries. The experience of a New York woman who received a surgical biopsy from an orthopedic surgeon shows what can go wrong in certain circumstances. The case between a high school tennis athlete and her orthopedic surgeon provides an example of a New York orthopedic malpractice case.

The plaintiff, formerly an all-star tennis player in high school, went to see an orthopedic surgeon about a benign bone growth, also known as osteochondoroma, in her left leg. The surgeon conducted the surgical biopsy and cut a nerve in the plaintiff’s leg. The resulting injury allegedly put her in a wheelchair and required months of physical therapy in order to regain the ability to walk. The plaintiff underwent another procedure to have the growth removed by another surgeon, although she still has pain in her leg that will allegedly continue for the rest of her life.

The plaintiff’s lawsuit against the surgeon alleged orthopedic malpractice. The elements for orthopedic malpractice in New York include: (i) the plaintiff was under the care of an orthopedic specialist; (ii) in the course of treatment, the orthopedic specialist failed to conduct him or herself in accordance with the standards of orthopedic specialists in New York; and (iii) the plaintiff was injured because of the orthopedic specialist’s negligence.

VA Hospital Investigation Alleges Widespread Malpractice Involving New York Podiatrist

Published on: October 31, 2017 | By DeFrancisco & Falgiatano

VA hospitals have the important role of serving United States veterans’ medical needs. As a federal government program, it’s subject to different laws, rules, and regulations than private hospitals or surgical centers. In an unfortunate news report, there are widespread allegations of medical malpractice, involving physicians from VA hospitals. The report notes that physicians who commit malpractice or fall beneath the standard of care are reassigned or asked to resign, and no report is allegedly made on their medical record.The news report revolves around one doctor in particular who allegedly drilled the wrong screws into one patient’s ankles, incorrectly severed another patient’s tendon, and performed unnecessary surgeries on veterans. Deposition testimony from the VA hospital revealed that he was considered a “dangerous surgeon” by the hospital surgery chief. However, the VA allegedly did not terminate his employment with the VA or report him to a national database or licensing board. Instead, the doctor was allowed to resign and establish a private practice in New York.

New York hospital malpractice claims against VA hospitals are treated differently from claims for malpractice against private companies. Instead, federal law governs the procedures for filing claims against the United States government. The federal tort claims act disclaims governmental immunity and sets forth the procedures for patients to recover compensation for negligent medical acts. Some of the key distinctions from non-governmental malpractice claims include a two-year statute of limitations for claims, all claims being processed through federal court, and the claimant being required to file a federal tort claims act form before any case can proceed. Sometimes there are circumstances in which there are providers who are not employees of the VA who may have also provided negligent care. In that situation, people could have concurrent state and federal actions.

New York Spinal Cord Injury Lawsuit Leads to Court’s Decision on Appropriate Use of Medical Expert Testimony

Published on: October 25, 2017 | By DeFrancisco & Falgiatano

People often seek chiropractic treatment to help with chronic neck or back pain. Chiropractors are credentialed differently from medical doctors and are regulated by a different New York licensing body, but they are still required to perform their treatments under a standard of care. The appeals court in a New York spinal cord injury case was asked to consider whether the expert witnesses in a chiropractic malpractice lawsuit had to have chiropractic expertise, or if more general medical knowledge would be sufficient.

The plaintiff hired the defendant, a chiropractor, to help alleviate chronic neck and back pain, along with headaches. After developing a treatment plan, the plaintiff visited the defendant for treatment 77 times. The treatment typically involved three spinal adjustments. Later, the plaintiff came into the defendant’s office for treatment after she returned from a jet skiing vacation. The plaintiff alleged that the defendant manipulated her spine in a violent or uncomfortable way, and she stopped attending treatments with the defendant. She began experiencing numbness, nausea, pain, and tingling and was admitted to a hospital shortly thereafter. The plaintiff alleged that the defendant caused her to experience trauma to the discs in her back and that she had to undergo back surgery as a result.

The plaintiff filed a lawsuit alleging chiropractic malpractice against the defendant. When the defendant moved for summary judgment, it was supported with affidavits from an orthopedic surgeon and a radiologist. Both experts testified that the plaintiff’s injuries were not caused by the defendant’s treatments. However, the trial court did not grant the defendant’s summary judgment motion because the experts did not demonstrate that they were qualified to opine on matters of chiropractic treatment.

Surgery Double-Booking Investigation Underscores Potential for New York Medical Malpractice Claims

Published on: October 17, 2017 | By DeFrancisco & Falgiatano

Patients are required to put a tremendous amount of trust into their physicians, who perform highly specialized procedures with the potential for tremendous risk. Unless told otherwise, most patients probably assume their surgeon is giving them their undivided attention during an operation. As recent regulatory scrutiny shows, however, the practice of double-booking surgeries occurs in hospitals across the country.The practice of double-booking works as follows. At teaching hospitals, more experienced surgeons train residents or fellows in performing surgeries. That means the attending, or more senior, surgeon can delegate the task of performing different surgeries to different trainees. In practice, the attending surgeon might perform an operation in one room while having a trainee performing a surgery on a different patient in another room.

Double-booking is not prohibited by law, but the policies of hospitals determine whether or not to allow the practice. Reports have alleged that health complications result from double-bookings. For instance, a Boston Globe investigative report noted examples of patients waiting under anesthesia while hospital staff attempted to locate surgeons who were not present. Trainees ended up performing those surgeries without oversight.

The reasons for why this practice has continued vary depending on who is presenting their case. Hospitals argue that it allows more patients to receive treatment because the surgeries are still performed with the utmost care. Critics say that the practice is about physicians bringing in more revenue because they can bill for multiple surgeries and have trainees perform a portion of them.

Medical Malpractice Mandatory Arbitration Clause Case Denied Review by United States Supreme Court

Published on: October 13, 2017 | By DeFrancisco & Falgiatano

Mandatory arbitration provisions in contracts are becoming increasingly common. The United States Supreme Court has viewed them favorably. Most notably, the landmark decision AT&T Mobility LLC v. Concepcion held that the Federal Arbitration Act of 1925 preempts other laws that restrict companies from requiring customers to rely on mandatory arbitration. Medical practices also use mandatory arbitration provisions, although they prevent those injured by medical negligence from filing a lawsuit in the courts system. Since this case involves federal law, it is applicable to people injured by New York medical negligence as well.

The United States Supreme Court declined to hear an appeal of a North Carolina Supreme Court decision that struck down a mandatory arbitration provision signed by a patient, who later alleged medical malpractice against his physician. The plaintiff was an elderly man, who had a limited education and was rarely asked to read for his work. When he arrived at the doctor’s office, he was given a stack of forms, which included medical history information, along with the mandatory arbitration form. No one in the doctor’s office explained the form to him, nor told him it was optional. The plaintiff simply assumed that the document was a formality.

The plaintiff later underwent hernia surgery. There were complications with the surgery, and the plaintiff had to undergo additional surgeries to prevent the amputation of his leg. The plaintiff filed a lawsuit for medical malpractice, but the defendant moved to have it dismissed on the ground that it was subject to mandatory arbitration. After a series of appeals, the North Carolina Supreme Court eventually heard the case.

Appeals Court Expounds on Expert Net Opinion Rule in Medical Malpractice Decision

Published on: October 9, 2017 | By DeFrancisco & Falgiatano

Medical malpractice cases rely heavily on expert medical opinions because negligence is established by the breach of a physician’s standard of medical care. Not all expert testimony is admissible at trial, however. Each jurisdiction maintains rules of evidence to guide which sort of expert testimony is admissible. For example, NY CPLR Section 4515 sets forth the rules for admitting expert testimony in New York medical malpractice cases.

In a recent case, a plaintiff sought the services of a plastic surgeon and underwent abdominoplasty, also known as a “tummy tuck,” at the age of 57. The plastic surgeon later conducted multiple unsuccessful scar revisions, but the surgeries were botched. The plaintiff’s plastic surgeon refunded her medical expenses.

The plaintiff sought the treatment of other doctors to help correct the botched tummy tuck. Eventually, the plaintiff consulted with the defendant in the case, who recommended a less invasive, in-office procedure, which she underwent in June 2008. In several follow-up appointments, the plaintiff complained of abdominal pain and vaginal irritation. The plaintiff was referred to another doctor, who diagnosed her with an umbilical hernia, and she filed a lawsuit against the surgeon who performed the less invasive procedure.