Syracuse Medical Malpractice and Personal Injury Lawyer Blog

New York Medical Malpractice Verdict of $3.1 Million Reduced on Appeal

Published on: September 26, 2017 | By DeFrancisco & Falgiatano

Defendants who lose medical malpractice cases at trial may have grounds to appeal the jury’s decision. Although the level of an appeals court’s discretion varies, the standard of review often requires a certain level of deference to the jury’s decision, and as a result, studies show that more cases are affirmed on appeal than overturned. That was not the outcome, however, in a recent New York medical malpractice case, in which the court decided that the $3.1 million awarded to the plaintiffs at trial was excessive.

The trial court ruled that the defendant, St. Peter’s Hospital, departed from the standard of care for accepted medical practice when two nurses failed to carry out a doctor’s order to conduct a CCT scan to rule out a lumbar bleed. This departure from the standard of care was determined to be a substantial factor in causing the plaintiff’s injury. The jury awarded the plaintiffs $3.1 million, $2.3 million of which was allocated to the plaintiff’s pain and suffering and $750,000 of which was allocated to loss of consortium.

The defendant appealed the decision. The appeals court first considered whether a new trial could be granted for the defendant. New York law provides that the court may only set aside a jury verdict if the verdict is not supported by legally sufficient evidence. The defendant asserted that the plaintiffs’ expert allegedly perjured herself by signing an affidavit regarding the issue of proximate cause when she lacked such qualifications. The appeals court noted that the jury decided this issue at trial and that therefore the court declined to grant the defendant’s motion for a new trial.

Medical Malpractice Claim Denied for New York Woman with Surgical Camera Lodged in Intestines

Published on: September 22, 2017 | By DeFrancisco & Falgiatano

A recent court decision highlights the careful distinctions courts make in interpreting the New York medical malpractice statute of limitations. In Leace v. Kohlroser, the plaintiff was treated by a gastroenterologist for Crohn’s disease. She underwent a capsule endoscopy under his care, and he advised her to swallow a capsule camera. The capsule camera transmitted images during a procedure, and the camera was supposed to pass through her in the normal course of digestion. Approximately a year later, the plaintiff received a CAT scan that revealed that the camera was still inside her intestines. The plaintiff alleged that she was never advised of the results of this CAT scan. Two years later, another CAT scan revealed the continued presence of the camera inside her intestines, and the camera had to be surgically removed.

The plaintiff filed a lawsuit against her doctors and his medical group for medical malpractice and lack of informed consent. The defendants moved to dismiss her lawsuit, asserting that it was time-barred under the 30-month statute of limitations under New York law. The trial court granted the defendants’ motion, and the plaintiff appealed the decision.

Although the general rule is that a medical malpractice lawsuit must be commenced within 30 months from when the medical error occurred, an action based upon the discovery of a foreign object allows the patient to file a lawsuit within one year of the date of discovery. However, the relevant New York statute draws a distinction between a “fixation device” and a “foreign object.” The extension does not apply to a “fixation device.” Case law has interpreted the meaning of “foreign object” to include items like surgical clamps or paraphernalia (e.g., scalpels, sponges, drains) inserted into a patient’s body to carry out a surgical procedure.

New York Malpractice Decision Raises Unique Considerations for Psychiatry Cases

Published on: September 18, 2017 | By DeFrancisco & Falgiatano

A New York appeals court recently decided the case of a teenager who committed suicide on the night he was discharged from the emergency room. The court acknowledged the tragic circumstances of his death but ultimately affirmed the trial court’s decision for the defendants. This case shows the unique evidentiary considerations facing plaintiffs when attempting to show New York psychiatry malpractice, which is not as observable as other forms of malpractice.The patient was admitted to the Cayuga Medical Center emergency room after his school nurse observed that he had mood swings and suspected that he might have used illegal drugs. The patient was previously treated at the same hospital, a year before, for suicidal ideation, self harm, and rapid mood swings, and the hospital’s psychiatrist diagnosed the patient with a mood disorder brought on by substance abuse. The psychiatrist did not examine the patient personally when he was admitted for the second time. Instead, the psychiatrist referred to his notes from the patient’s earlier visit, as well as a mental health evaluation conducted by the emergency room nurse, and consulted the patient’s outpatient therapist, who said that although the patient was abusing drugs, he had not expressed suicidal tendencies. The patient was released from the hospital. Later that same night, after returning home, he committed suicide.

The patient’s parents sued the psychiatrist, Cayuga Medical Center, and the management company, Cayuga Emergency Physicians LLP, alleging medical malpractice, among other causes of action. The trial court granted summary judgment in favor of the defendants, and the plaintiffs appealed the decision. The court of appeals affirmed the trial court’s decision because the plaintiffs could not show that the physicians breached the appropriate standard of care. Instead, the court found that the plaintiffs were merely alleging that the doctors erred in their professional judgment.

New York Woman Dies After Undergoing Buttock-Enhancement Procedure

Published on: September 15, 2017 | By DeFrancisco & Falgiatano

New York law imposes extensive regulatory requirements on medical professionals to help ensure that patients are receiving high-quality care. These safeguards are not always effective to prevent New York medical malpractice, and recent news reports show that doctors are performing unlicensed buttock-enhancement surgery. The silicone injection products are not FDA-approved, and the doctors are not qualified to perform the procedure. The consequences have included deformation, amputation, and even death.A New York woman seeking buttock-enhancement surgery met with a doctor in a local donut shop. The doctor then had the patient wait inside the donut shop until a “nurse” came to meet her and bring her to an apartment for silicone injections. The woman received the silicone injections in her buttocks and hips. She called 911 on the night following the procedure, reporting that she felt dizziness and chest pains. She was rushed to the hospital and slipped into a coma, after which she was later pronounced brain-dead. She was taken off life support a short time later. It’s possible that the injection was made into a blood vein, and as a result, the silicone entered her blood stream, where it passed to her heart and brain.

New York law enforcement searched the apartment where the procedure was performed. They found surgical supplies and drugs used to numb skin. The family of the deceased woman filed a lawsuit against the doctor, and it’s likely that criminal charges will also be brought against the doctor. In fact, an unlicensed Florida doctor was recently sentenced to 10 years in prison following a similarly botched procedure.

Pathology Malpractice Claim in New York Illustrates Importance of Expert Witness Testimony

Published on: September 8, 2017 | By DeFrancisco & Falgiatano

Pathology malpractice occurs when a physician fails to correctly assess a patient’s tissue or fluid sample. The result can delay a diagnosis or lead to the mistreatment of a patient’s medical condition. Often, the determination of whether the pathologist acted negligently turns on very technical details, which is why New York pathology malpractice claims generally require expert testimony to demonstrate the failure of a physician to exercise the requisite standard of care.The plaintiff underwent a colonoscopy, and after the results came back, the plaintiff was referred to a specialist. The specialist recommended a surgical procedure to remove one side of the colon. The plaintiff consented to the surgery after being apprised of the risks, benefits, and alternatives of the proposed surgery. Following surgery, the pathology report found that the cancer was grade III and poorly differentiated with a maximal thickness of 1.2 cm. Later, the plaintiff complained of severe pain. The conditions suggested an anastomotic leak; however, the surgical pathology report noted no perforations. The leak was then repaired with staples and sutures. The plaintiff and her husband brought a lawsuit alleging medical malpractice.

New York medical malpractice summary judgment proceedings require that the defendant(s) use medical records and competent expert witnesses to show that the defendant(s) did not deviate from accepted medical practice in the treatment of the plaintiff or that the injury was not a proximate cause of the plaintiff’s injuries. The expert testimony must be supported by facts and tailored to the claims presented. Conclusory statements are insufficient to establish a claim, particularly at the summary judgment stage of proceedings.

Report Shows History of Medical Malpractice at Syracuse VA Medical Center

Published on: September 5, 2017 | By DeFrancisco & Falgiatano

The United States established the Veterans Health Administration to provide health and medical services to veterans. The program helped establish hospitals, clinics, and medical centers aimed at assisting veterans and is run by the federal government, which means the medical professionals working at the facilities are usually considered federal employees.As with any medical center, physicians perform risky procedures and sometimes make mistakes that injure people and lead to New York medical malpractice claims. Through a Freedom of Information Act request, the Department of Veteran Affairs released information regarding thousands of claims against various VA medical centers for an approximately 20-year period. The report shows that the Syracuse VA Medical Center ended up paying out approximately $2 million in claims.

The claimants were not always permitted to file lawsuits for medical malpractice against VA medical centers. Because of governmental immunity, lawsuits were not permitted until the passage of the Federal Tort Claims Act in 1946. The law waives governmental immunity and gives veterans the right to recover money damages from the federal government for injuries caused by the medical malpractice of federal employees.

New York Court Allows Botched Spinal Surgery Lawsuit to Proceed

Published on: September 1, 2017 | By DeFrancisco & Falgiatano

Invasive surgical procedures necessarily carry with them risks, including a possibility of permanent injury. Although doctors are required to disclose the risks associated with a procedure under the doctrine of informed consent, New York medical malpractice law holds doctors to a certain standard of care when performing surgeries. Whether this standard was breached was at issue in a recent New York court decision after the plaintiff alleged that a botched spinal surgery worsened her condition and resulted in additional surgeries.

The plaintiff came to her doctor with complaints about chronic lower back and leg pain. After taking X-rays, the plaintiff and her doctor discussed possible surgical options. The plaintiff elected to undergo back surgery to repair the bulging disc in her back. The court record showed that there was no indication that there was anything wrong during the surgery; however, a day after the surgery, the plaintiff had a left foot drop. Her doctor recommended that the plaintiff continue with steroids and physical therapy and did not immediately recommend surgery. The plaintiff continued to experience significant pain going down the left leg and decreased sensation in her left foot. The plaintiff returned to her doctor, and after he re-evaluated the plaintiff, he suggested a further spinal procedure, six days after the first was completed.

The plaintiff’s lawsuit alleged that the defendants, which included her doctor and the hospital, (i) failed to obtain informed consent in advance of the surgery or on the day of surgery; and (ii) committed medical malpractice, based upon the performance of the initial surgery and the timing of the second surgery.