Rochester Medical Malpractice and Personal Injury Lawyer Blog

Published on: January 23, 2020

Court Discusses Expert Qualifications in Medical Malpractice Cases in New York

A plaintiff pursuing medical malpractice claims in New York must prove that the defendant medical provider deviated from the standard of care, causing the plaintiff harm. In most cases, this is established via the opinion of a medical expert. Although it is beneficial to retain an expert that practices in the same specialty as the defendant, it is not required. If an expert practices in a different area of medicine, however, the plaintiff must prove that the expert is nonetheless qualified to opine on the disputed issues. In a recent orthopedic malpractice case, a New York appellate court discussed what constitutes sufficient evidence to demonstrate an expert is qualified. If you were harmed by negligently rendered orthopedic care, it is prudent to meet with a trusted Rochester orthopedic malpractice attorney to discuss what evidence you must produce to recover compensation.

Facts and Procedural History of the Case

It is reported that the plaintiff underwent a right hip replacement in 2008. Two years later, he underwent a catheterization due to heart blockage and a heart attack. Later that year, due to an infection, he had to undergo a total hip replacement revision surgery. He subsequently filed a medical malpractice lawsuit against the providers that performed his catheterization as well as his orthopedist and family care physician, alleging they were negligent and that their negligence caused him to develop an infection, which required additional surgery. The defendants filed a motion for summary judgment, which the court denied. The defendants appealed.

Qualifications of Medical Experts

A defendant seeking dismissal of a medical malpractice case via summary judgment must show either that there was no departure from the standard of care, or that any departure did not cause the plaintiff’s alleged harm. In the subject case, the trial court found that the defendants set forth prima facie evidence that they were entitled to summary judgment, but that the plaintiff raised a triable issue of fact by way of an expert report in response, which warranted a dismissal of the defendants’ motion. The appellate court disagreed. Specifically, on review, the appellate court found that the plaintiff failed to establish that his expert witness was qualified to offer an opinion on the applicable standard of care that applied to the family physician or orthopedist.

Published on: January 20, 2020

New York Court Discusses a Hospital’s Vicarious Liability in Medical Malpractice Cases

by DeFrancisco & Falgiatano

It is common for people experiencing acute or critical medical issues to visit a hospital for treatment. If the care provided in the hospital harms, rather than helps, a person, the person may seek damages against the care providers that provided the inadequate treatment. Additionally, in some cases, the injured person may be able to recover damages from the hospital as well. In a recent hospital malpractice case, a New York appellate court explained when a hospital may be liable for negligent care provided to a patient during his or her hospitalization. If you suffered harm due to incompetent care rendered in a hospital, you should consult a skillful Rochester hospital malpractice attorney regarding your potential claims against the parties that caused your harm.

Facts and Procedure of the Case

It is alleged that the plaintiff filed a medical malpractice lawsuit against the defendant physicians and hospital, arguing they deviated from the applicable standard of care, resulting in the death of the plaintiff’s decedent. The complaint alleged, in part, that the named defendant physicians were employees of the defendant hospital, and that they were acting within the scope of their employment when they harmed the decedent. After discovery was completed, the defendant hospital filed a motion for summary judgment, arguing that it was not liable for the negligence of the individually named defendants. The court granted the motion, after which the plaintiff appealed.

A Hospital’s Vicarious Liability for Malpractice

Under New York law, a hospital may be held vicariously liable for the negligence committed by its employees within the scope of their employment, pursuant to the doctrine of respondeat superior. A hospital will generally not be deemed responsible for the negligent acts or omissions of a private physician that is not an employee of the hospital, but is merely working there as an independent contractor, however. An exception to the general rule arises, though, in cases in which a patient visits the emergency department of a hospital, seeking treatment from the hospital and not a particular doctor, or in cases where the hospital exercised control over a doctor, or the doctor acted as an agent of the hospital.

Published on: January 14, 2020

New York Court Discusses What a Defendant Seeking a Dismissal of a Surgical Malpractice Case Must Prove

by DeFrancisco & Falgiatano

In medical malpractice cases in New York, the plaintiff is required to set forth a bill of particulars that explains in detail the manner in which the defendant care provider caused the plaintiff’s harm. In turn, the defendant bears the burden of refuting each claim set forth in the bill of particulars. If the defendant can successfully prove that he or she is not negligent, the case may be dismissed in its entirety. If the defendant fails to address all of the plaintiff’s allegations, however, the plaintiff will be permitted to proceed with his or her claims, as demonstrated in a recent surgical malpractice case ruled on by a New York appellate court. If you suffered injuries due to an improperly performed surgery, it is advisable to speak with a dependable Rochester surgical malpractice attorney to discuss what you must prove to recover damages.

The Plaintiff’s Care and the Pleadings in the Case

It is reported that the plaintiff underwent surgery at the defendant hospital. Several months later, she was diagnosed with a ventral hernia, which was later revealed to be an incisional hernia. The plaintiff ultimately filed a surgical malpractice lawsuit against the defendant, alleging, in part, that the surgery increased her risk of sustaining an incisional hernia, and that the defendant was negligent due to its failure to diagnose and treat the hernia in a timely manner. After discovery was completed, the defendant filed a motion for summary judgment. The trial court denied the motion, and the defendant appealed.

A Defendant’s Burden of Proof in Seeking a Dismissal of a Surgical Malpractice Case

Under New York law, to succeed on a medical malpractice claim, a plaintiff must establish that the defendant deviated from the applicable standard of care, and the deviation proximately caused the plaintiff harm. In turn, to succeed on a motion for summary judgment in a medical malpractice case, a defendant must establish that either there was no deviation, or the deviation did not cause the plaintiff’s alleged harm. If the defendant does not meet this burden, however, summary judgment will not be granted.

Published on: January 8, 2020

New York Court Discusses When a Change of Venue is Appropriate in Medical Malpractice Cases

by DeFrancisco & Falgiatano

Generally, a person injured by medical malpractice has the discretion to choose where to file a lawsuit seeking damages. If the defendant believes a lawsuit was filed in an improper county, though, the defendant can challenge the plaintiff’s selection and petition the court to move the case to another location. Recently, the Supreme Court, Appellate Division, Second Department, New York, discussed the basis for transferring a matter to another venue, in a case alleging medical malpractice against numerous defendants. If you were injured by negligent medical care, it is critical to retain a knowledgeable Rochester medical malpractice attorney to assist you in pursuing your claims in the appropriate venue.

Factual and Procedural Background

Allegedly, the plaintiffs filed a medical malpractice action in Dutchess County against numerous care providers. The chosen venue was based upon the purported location of the main office of one of the defendants. The defendants then filed motions to change the venue of the case to Tompkins County. The plaintiffs objected to the defendants’ motions, but the trial court granted the motions on the grounds that Dutchess County was not a proper county for pursuing the claims, despite the plaintiffs’ objections. The plaintiffs then appealed.

What Constitutes Proper Venue in a Medical Malpractice Case

In New York, a defendant can file a motion to change the place of a trial where the county chosen by the plaintiff is not the proper county. To successfully prove a change of venue is warranted, the defendant must not only show that the plaintiff’s chosen venue is improper but also that the venue chosen by the defendant is proper. If the defendant meets this burden, the burden then shifts to the plaintiff to show that the chosen venue is, in fact, proper.

Published on: December 26, 2019

Court Discusses Evidence Needed to Defeat Summary Judgment in a New York Medical Malpractice Case

by DeFrancisco & Falgiatano

There are basic elements that each party must meet in a medical malpractice case to show that judgment should be entered in their favor. In other words, the plaintiff must show harm caused by the defendant’s departure from the applicable standard of care. If the plaintiff meets this burden, the defendant must then establish that he or she complied with the standard of care or that any departure did not cause the plaintiff’s alleged harm. If the defendant offers sufficient proof that judgment should be granted in his or her favor, the burden shifts back to the plaintiff to show why his or her claims against the defendant should not be dismissed. Recently, in a New York appellate case in which the plaintiff asserted that she was harmed by a radiologist’s failure to observe her fractures, the court discussed what constitutes sufficient evidence to defeat a defendant’s motion for summary judgment. If you suffered harm due to a mistake by a radiologist, you should meet with a dedicated Rochester radiology malpractice attorney to assess what you must prove to establish liability.

Facts Regarding the Plaintiff’s Treatment

The plaintiff visited the defendant radiologist with complaints of a swollen right heel and ankle. She underwent an x-ray, which the defendant interpreted as showing swelling but no acute dislocation or fracture. The plaintiff’s swelling failed to subside, however, and she underwent a second x-ray approximately one month later, which revealed multiple fractures. The plaintiff then underwent surgery to repair her fractures. She subsequently filed a medical malpractice claim against the defendant, arguing that the defendant’s failure to accurately diagnose her fractures caused her harm. The defendant filed a motion for summary judgment. The trial court denied the motion, and the defendant appealed.

Evidence Sufficient to Defeat a Motion for Summary Judgment

On appeal, the court stated that a defendant who files a motion for summary judgment in a medical malpractice case must establish either that he or she did not deviate from the standard of care or that the departure did not cause the plaintiff’s harm. If the defendant meets this burden, the plaintiff must offer evidence in rebuttal, but only regarding the elements for which the defendant offered sufficient proof.

Published on: December 24, 2019

New York Court Discusses Standard for Granting a New Trial in a Delayed Diagnosis Case

by DeFrancisco & Falgiatano

A delay in receiving an accurate diagnosis can cause irreparable harm, but how long of a delay is sufficient to constitute malpractice is typically within the purview of the jury. If the jury issues a defense verdict that is contrary to the evidence of record in a delayed diagnosis case, the plaintiff can petition the court for a new trial, but the courts will not overturn a jury’s ruling unless it is clearly warranted under the law. In a recent case decided by a court in the Appellate Division of the Supreme Court of New York, the standards for granting a motion for a new trial were thoroughly explained. If you sustained damages due to a delayed diagnosis, it is wise to speak with a seasoned Rochester misdiagnosis attorney regarding your options for pursuing recourse for your harm.

Facts Regarding the Plaintiff’s Treatment

It is alleged that the plaintiff was at a music festival with her husband when she became gravely ill. She was taken by ambulance to a nearby hospital where it was determined that she had critically low sodium levels, after which she was administered saline. Approximately six hours after she arrived at the hospital, she was deemed unresponsive, and three hours after that, she suffered a seizure. The attending physicians at the hospital subsequently ordered a neurological consultation with the defendant doctor’s medical group. The order did not indicate that there was an urgent need for the consultation.

Reportedly, the following day, the plaintiff underwent a neurological consult with a nurse practitioner. The defendant neurologist reviewed the nurse practitioner’s report and developed a differential diagnosis in which the defendant doctor concluded that the patient had many symptoms of central pontine myelinolysis. The following day, however, an MRI revealed that the plaintiff sustained a lumbar fracture and was suffering from cauda equina syndrome, which is a rare condition that, if left untreated, can result in permanent loss of function from the waist down. The plaintiff underwent surgery three days later.

Published on: December 19, 2019

Court Discusses Admissibility of Evidence of Prior Bad Acts in New York Medical Malpractice Cases

by DeFrancisco & Falgiatano

Many medical providers are employees of larger medical groups. As such, patients harmed by negligent medical care often not only pursue claims against the treating physician but also against the hospital or medical group that employed the physician. Depending on the facts of the case, however, the court may decline to allow a plaintiff to proceed against a doctor and the doctor’s employer in the same case. The standards for determining whether claims against a doctor and the medical group that employed the doctor should be severed were recently set forth in a primary care malpractice case reviewed by a New York appellate court. If you were injured by negligent care rendered by a primary care physician, it is advisable to meet with a proficient Rochester medical malpractice attorney to discuss what claims you may be able to pursue.

Procedural Background of the Case

Allegedly, the defendant primary care physician engaged in inappropriate physical contact with the plaintiff during a routine physical. The plaintiff subsequently filed a lawsuit alleging medical malpractice claims against the defendant physician and the defendant medical group that employed the defendant physician. The plaintiff also asserted negligent hiring and supervision, and vicarious liability claims against the defendant medical group. The defendant physician filed a motion to sever the claim against him from the remaining claims. The court granted the motion, and the plaintiff appealed.

Severance of Claims in a Medical Malpractice Lawsuit

In New York, a court may order a severance of certain claims or may order a separate trial of any issue or claim. In the subject case, the defendant physician alleged that the claims against the defendant medical group arose out of the allegation that the defendant physician engaged in similar conduct with another patient. The defendant physician further alleged evidence of whether he previously acted inappropriately with a patient would not be admissible in a trial on the issue of whether he was liable to the plaintiff for medical malpractice.

Published on: December 16, 2019

New York Court Explains Standard for Setting Aside a Verdict in Medical Malpractice Cases

by DeFrancisco & Falgiatano

One of the key elements in any medical malpractice case is proximate cause. In other words, the injured party must prove not only that the care provider deviated from the appropriate standard, but also that the deviation caused the injured party’s harm. Causation is often difficult to prove in medical malpractice cases, and parties do not always agree as to what constitutes adequate proof. This was demonstrated in a recent hospital malpractice case in which the defendants appealed the jury’s verdict in favor of the plaintiff as against the weight of the evidence, arguing that the plaintiff failed to prove the defendants caused her harm. If you were injured by negligent care rendered in a hospital, it is advisable to meet with a proficient Rochester hospital malpractice attorney to discuss what claims you may be able to pursue.

Facts Surrounding the Plaintiff’s Treatment

It is reported that the plaintiff was admitted to the defendant hospital for the treatment of an acute asthma attack. During her admission, the plaintiff was treated by multiple physicians, including two attending physicians, a pulmonologist, and a nephrologist, all of whom were named as defendants. The plaintiff became hypercapnic during her admission and ultimately suffered permanent and severe brain damage. She subsequently filed a malpractice lawsuit against the defendants. Following a trial, the jury awarded the plaintiff $90,000,000 for pain and suffering, as well as special damages. The defendants appealed, arguing that the verdict was against the weight of the evidence.

Proximate Cause Under New York Law

Under New York law, a court will not disturb a jury’s verdict unless it is contrary to the weight of the evidence. In other words, if the jury’s conclusion does not comply with rational reasoning given the evidence produced at trial. As such, any verdict that is not completely irrational should not be disturbed. A judge evaluating whether a verdict is against the weight of the evidence must assess whether the verdict relies on a fair evaluation of the evidence, viewing the facts in a light most favorable to the plaintiff.

Published on: December 9, 2019

New York Court Discusses Standard of Care for Treatment Outside of the Scope of a Doctor’s Specialty

by DeFrancisco & Falgiatano

While many malpractice cases arise out of incompetent care within a doctor’s specialty, such as the failure to diagnose or a delayed diagnosis, some arise out of harm caused by a doctor practicing outside of the scope of his or her expertise. This was demonstrated in a recent case in which the court discussed the standard of care imposed on a podiatrist that allegedly caused harm by performing a non-FDA approved therapy for Lyme disease on a patient. If you were harmed by an unapproved medical treatment or other negligent care provided by a podiatrist, it is advisable to speak with a seasoned Rochester podiatry malpractice attorney regarding your case.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff saw an advertisement in a magazine in which the defendant podiatrist stated he could treat Lyme disease. The plaintiff subsequently visited the defendant, who routinely stated he could cure non-podiatric issues, for treatment of Lyme disease. The defendant recommended that the plaintiff undergo ozone therapy, which is not an FDA-approved treatment. The plaintiff underwent three ozone therapy sessions. Following the third session, he fell asleep, and when he awoke, he was disoriented and confused. He was taken to a hospital where an examination revealed he had left-sided weakness and paralysis. He was admitted and hospitalized for approximately two weeks.

Allegedly, the plaintiff was evaluated for seizure and stroke but did not receive a definitive diagnosis. Following his discharge from the hospital, the plaintiff was unable to get out of bed for three months. He subsequently filed a medical malpractice lawsuit against the defendant, alleging that the ozone therapy caused inflammation in his brain, which led to his subsequent symptoms. The defendant filed a motion for summary judgment, which the trial court granted. The plaintiff then appealed.

Published on: November 28, 2019

New York Court Discusses What Constitutes Sufficient Evidence to Support a Failure to Diagnose Claim

by DeFrancisco & Falgiatano

In many medical malpractice cases, both parties will rely upon the medical records to support their position. While the absence of complaints of pain in a medical record may harm the case of a plaintiff alleging a failure to diagnose claim, it is not dispositive, as shown in a recent case decided by the appellate division of the Supreme Court of New York. If you sustained injuries due to a delayed diagnosis, it is in your best interest to consult an assertive Rochester misdiagnosis attorney to discuss what evidence you must produce to prove your care provider should be held liable for your harm.

Facts and Procedural Background of the Case

It is reported that the plaintiff visited the defendant hospital in September 2013, where he underwent a colonoscopy performed by the defendant gastroenterologist. Immediately after the colonoscopy, the plaintiff complained of severe abdominal pain. The attending physicians did not conduct any additional tests, however, and the plaintiff was discharged. Ultimately, the plaintiff was diagnosed with a perforated colon. He subsequently filed a lawsuit against the defendants, alleging medical malpractice and negligent hiring. The defendants filed a motion for summary judgment on both counts. The court granted the motion, after which plaintiffs appealed.

Evidence Sufficient to Withstand Summary Judgment

On appeal, the court affirmed the order as to the negligent hiring claims, stating that there was no evidence that any of the medical providers involved in the plaintiff’s care were unqualified or had a history of providing negligent care. The court reversed the portion of the order dismissing the medical malpractice claims, however.