Rochester Medical Malpractice and Personal Injury Lawyer Blog

Published on: August 7, 2020

Court Discusses Sufficiency of an Expert Affidavit in a Medical Malpractice Case in New York

In many instances in which a patient is harmed by negligent medical care, more than one care provider will have provided the patient with inadequate treatment. Thus, it is not uncommon for multiple defendants that practice in different specialties to be named in a medical malpractice lawsuit. While the parties in a medical malpractice case generally need to retain medical experts to testify regarding the standard of care, one expert usually cannot offer an opinion as to multiple specialties. This was demonstrated in a recent New York case in which a mother and child both suffered injuries during the child’s birth. If you or your child sustained an injury during childbirth, it is advisable to consult an experienced Rochester birth injury attorney to discuss what evidence you must introduce to prove liability.

Facts of the Case

It is reported that the plaintiff mother was treated by the defendant gynecologist, who induced labor when the plaintiff was thirty-nine weeks pregnant. During the birth, the plaintiff mother and the plaintiff infant suffered unspecified injuries. Thus, the plaintiffs filed a medical malpractice lawsuit against the defendant gynecologist, as well as the hospital, anesthesiologist, and pediatrician, and orthopedic surgeon that participated in delivering the plaintiff infant and caring for both plaintiffs after the birth. The defendants moved to have the case dismissed via summary judgment, arguing they did not breach their respective standards of care. The trial court granted the motion, and the plaintiff appealed.

Sufficiency of an Expert Affidavit in a Medical Malpractice Case in New York

On appeal, the plaintiff argued in part that the defendant’s expert affidavit regarding the care provided by the anesthesiologist, pediatrician, and orthopedic surgeon lacked probative value. The appellate court agreed and reversed the trial court’s order to the extent it dismissed those defendants. Specifically, the court noted that it was true that under New York law, an expert does not have to be a specialist in a certain field in order to be able to testify competently regarding the accepted practices in that field.

Published on: July 28, 2020

New York Court Dismisses a Medical Malpractice Claim Due to Plaintiff’s Failure to Show a Breach of the Standard of Care

by DeFrancisco & Falgiatano

In many instances, a doctor’s failure to conduct the tests needed to provide a patient with an accurate diagnosis constitutes medical malpractice. In some cases, however, even if a doctor’s diagnosis is delayed, the doctor may not be held liable for any harm suffered by the patient if the applicable standard of care does not require a doctor to consider all possible diagnoses. This was demonstrated in a recent New York pediatric malpractice case in which the court dismissed the plaintiff’s claims due to the plaintiff’s inability to show that the failure to diagnosis a rare condition constituted a breach of the standard of care. If your child suffered harm because of a delayed diagnosis, it is in your best interest to speak to a trusted Rochester pediatric malpractice attorney to assess what damages you may be owed.

The Child’s Alleged Harm

It is alleged that the defendant pediatrician examined the plaintiff-child in early November 2008 for an infection. The defendant prescribed the plaintiff-child antibiotics. The defendant saw the plaintiff-child again one day later, and five days later, when his condition seemed to be improving. Six days after the initial visit, however, the plaintiff-mother called the defendant and reported that the plaintiff-child had a fever, and had recently undergone dental work, after which the defendant advised the plaintiff-mother to take the plaintiff-child to the emergency room.

Reportedly, the plaintiff-child was diagnosed with bacterial endocarditis, which required surgery to preserve his mitral valve function. The plaintiffs then filed a medical malpractice lawsuit against the defendant, alleging the plaintiff’s condition should have been diagnosed via an echocardiogram, but that one was not performed until ten days after the plaintiff’s initial visit. Following discovery, the defendant filed a motion to dismiss, which the court ultimately granted. The plaintiff then appealed.

Published on: July 23, 2020

New York Court Discusses Burden of Proof in Birth Injury Cases

by DeFrancisco & Falgiatano

While medical malpractice lawsuits arising out of birth injuries are typically more heart wrenching than other malpractice lawsuits, the burden of proof imposed on all parties involved in a birth injury lawsuit is nonetheless the same. Specifically, the plaintiff must show harm caused by a departure from the standard of care to recover damages, and conversely, a defendant may be able to obtain a dismissal by demonstrating that he or she complied with the standard of care. In a recent birth injury case in New York, the court discussed what constitutes sufficient evidence to prove a triable issue of fact, and ultimately denied the defendant’s motion for summary judgment. If your child suffered an injury at birth, it is critical to retain an assertive Rochester birth injury attorney to help you and your child protect your interests.

Facts Regarding the Case

Reportedly, the plaintiff mother suffered from gestational diabetes during her pregnancy. She was induced at a hospital during the 39^th week of her pregnancy and gave birth to the plaintiff infant, who was delivered via the use of forceps. The plaintiff infant’s umbilical cord was wrapped around his neck when he was born, and he was limp, floppy, and not breathing. Positive pressure ventilation was initiated, and when it did not work, the plaintiff infant was intubated. He subsequently suffered brain damage, which caused cognitive and developmental issues. The plaintiffs filed a medical malpractice lawsuit against the doctor that delivered the plaintiff infant and the hospital where he was delivered. The defendants filed a motion for summary judgment, which the trial court granted. Thus, the plaintiffs appealed.

Burdens of Proof in Birth Injury Cases

Under New York law, the elements a plaintiff must prove in a birth injury case are a deviation from the accepted standard of care in the medical community in which the defendant practices, and proof that the plaintiff’s harm was proximately caused by the deviation. In turn, a doctor that seeks to be dismissed from a birth injury case must make a prima facie showing that he or she did not deviate from the applicable standard of care or that any deviation that occurred was not the cause of the plaintiff’s injuries. To sustain this burden of proof, the defendant must address and refute any specific allegations that are set forth in the plaintiff’s bill of particulars.

Published on: July 19, 2020

New York Court Discusses Elements of a Lack of Informed Consent Claim

by DeFrancisco & Falgiatano

A doctor may not only injure a patient by performing a procedure improperly but may also cause a patient to suffer harm by failing to warn the patient of the potential risks and side effects of a procedure. Thus, a doctor may commit malpractice by failing to obtain a patient’s informed consent prior to performing a procedure. Recently, a New York appellate court discussed what a plaintiff must prove to recover damages under a lack of informed consent claim, in a case in which the plaintiff was harmed by negligent ophthalmologic care. If you suffered harm because of an ophthalmologist’s reckless acts or omissions, it is wise to speak to a skillful Rochester ophthalmology malpractice attorney to discuss what evidence you must produce to recover damages.

Facts of the Case

It is reported that the plaintiff underwent a corneal transplant of the left eye, which was performed by the defendant ophthalmologist. The plaintiff suffered complications following the procedure, which ultimately caused the transplant to fail and required an emergency corneal transplant. It was ultimately determined that the plaintiff’s retina detached, and he would not be able to see out of his left eye anymore. The plaintiff then filed a medical malpractice lawsuit against the defendant, alleging claims of negligence and lack of informed consent. The defendant filed a motion for summary judgment as to both claims, which the trial court denied. The defendant filed an appeal, arguing, in part, that the trial court erred in refusing to dismiss the informed consent claim.

Elements of an Informed Consent Claim

Under New York law, a plaintiff seeking to recover damages for a medical malpractice claim arising out of lack of informed consent must show that the defendant healthcare provider did not disclose alternatives to a treatment or advise the plaintiff of the associated risks of the treatment that were reasonably foreseeable, and that a competent healthcare provider would have disclosed in the same situation.

Published on: July 14, 2020

New York Court Affirms Dismissal of Emotional Distress Claims in a Medical Malpractice Case

by DeFrancisco & Falgiatano

Losing a child due to medical malpractice can cause great emotional trauma. In some cases, though, despite the grave emotional harm suffered by a parent that loses a child due to incompetent medical care, a parent cannot recover damages for emotional distress, as demonstrated in a recent obstetrician-gynecologist malpractice case in New York. If you suffered the loss of a child or your child suffered an injury at birth due to negligent medical care, you should speak to a dedicated Rochester medical malpractice attorney regarding what claims you may be able to pursue.

Factual History

It is alleged that the plaintiff presented to a hospital with high blood pressure when she was twenty-six weeks pregnant. She was treated by two obstetrician-gynecologists while at the hospital. Two days after she was admitted to the hospital, she was diagnosed with severe preeclampsia and transferred to the second hospital. The plaintiff ultimately filed a medical malpractice claim against both hospitals and the two obstetrician-gynecologists that treated her, alleging their incompetent treatment caused her to deliver a stillborn child. As part of her claim, the plaintiff sought damages for emotional distress. The defendants filed motions for summary judgment as to the emotional distress claims, arguing that the plaintiff could not recover such damages because her child had been born alive. The trial court granted the defendants’ motions, and the plaintiff appealed.

Damages for Emotional Distress in Medical Malpractice Claims in New York

On appeal, the appellate court affirmed the trial court ruling. The appellate court noted that, under New York law, a mother could not recover compensation for emotional distress for alleged malpractice that causes an injury to a fetus in utero, if the fetus is ultimately born alive. The appellate court further explained that a live birth is defined as a complete extraction or expulsion of a child from its mother, where after the separation from the mother, the child breathes, has a heartbeat, or shows any other evidence of life, regardless of the duration of the pregnancy.

Published on: July 7, 2020

New York Court Explains Evidence Sufficient to Avoid Dismissal of Medical Malpractice Claims

by DeFrancisco & Falgiatano

It is well-established that in medical malpractice cases in New York, a defendant may obtain a ruling in its favor prior to trial if it establishes a prima facie showing that it is entitled to judgment as a matter of law. Even if a defendant meets its burden of proof, however, a plaintiff may be able to avoid a dismissal of his or her claims against the defendant, if the plaintiff demonstrates that an issue of fact remains that must be resolved via trial. A plaintiff cannot defeat a defendant’s motion for dismissal via summary judgment by introducing a new theory of liability, however, as demonstrated in a recent New York medical malpractice case. If you were injured by incompetent medical care, it is advisable to consult a seasoned Rochester medical malpractice attorney to discuss what evidence you must produce to obtain a favorable outcome.

Facts Regarding the Case

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant, alleging claims of lack of informed consent and negligence. The defendant filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims. The court denied the motion, and the defendant appealed.

Defeating a Defendant’s Motion for Summary Judgment in a Medical Malpractice Case

On appeal, the court reiterated the standard for determining whether a plaintiff’s medical malpractice claim should be dismissed under New York law. Specifically, the court stated that a defendant seeking dismissal via summary judgment in a medical malpractice action must set forth a prima facie showing that he or she either did not depart from the accepted practice of medicine or that any departure from the accepted practice did not cause the plaintiff’s harm. The court further explained that dismissal via summary judgment is not appropriate in cases in which the parties produce conflicting expert reports.

Published on: June 26, 2020

New York Court Discusses Medical Malpractice Claims Arising Out of the Failure to Conduct a Sufficient Examination

by DeFrancisco & Falgiatano

Generally, a physician must conduct a thorough and complete examination of a patient in order to provide the patient with an accurate diagnosis and recommend the appropriate treatment. Whether an examination was sufficient is generally a fact-specific question and varies from case to case. Recently, though, a New York court ruled that a plaintiff could proceed to trial on a medical malpractice claim arising out of the failure to conduct an adequate examination. If you suffered harm following an insufficient examination by your medical care provider, it is in your best interest to speak to an experienced Rochester medical malpractice attorney to assess what claims you may be able to assert in pursuit of damages.

Factual Background

It is reported that over a series of weeks, the plaintiff alleged he received threatening phone calls. He subsequently contacted the police, and during the police investigation, the officers and a mobile crisis team found the plaintiff to be uncooperative and suspicious. Ultimately, the plaintiff was transferred to a hospital for a psychiatric evaluation. Following an examination, he was deemed a danger to himself and others and involuntarily admitted. He was confined in two different hospitals for approximately a month. Following his discharge, he filed a lawsuit against multiple defendants that set forth numerous claims, including a medical malpractice claim against the physician that conducted his psychiatric evaluation. The defendants filed a motion for summary judgment.

Medical Malpractice Claims Arising Out of the Failure to Conduct a Sufficient Examination

As to the medical malpractice claim, the court explained that a plaintiff alleging medical malpractice must prove that the defendant breached the standard of care that applies to his or her medical community and that the breach was the proximate cause of the plaintiff’s harm. The court further noted that a plaintiff pursuing a medical malpractice claim in New York must present testimony from an expert to support his or her claims to demonstrate a prima facie malpractice claim.

Published on: June 22, 2020

Court Discusses Grounds for Changing Venue in Medical Malpractice Case in New York

by DeFrancisco & Falgiatano

In medical malpractice cases in New York, the plaintiff generally decides where the action will be heard, as the plaintiff is the party filing the lawsuit. A defendant has the right to seek a change of venue, however, if the County the plaintiff chose to file his or her lawsuit is not an appropriate place for the matter to be heard. The grounds for granting a motion for change of venue were recently discussed by a New York appellate court in a hospital malpractice case that was originally filed in Bronx County. If you were injured by negligent care in a hospital, it is prudent to speak to an assertive Rochester hospital malpractice attorney regarding what damages you may be able to recover in a civil lawsuit.

Procedural History of the Case

It is reported that the plaintiff’s decedent was admitted to a hospital in Newburgh and then transferred to a hospital in the Bronx, where she died. The plaintiff filed a medical malpractice lawsuit in Bronx County against the defendants, alleging that the venue was based on the defendant’s business address. The complaint further alleged that the defendants operated a healthcare facility that served customers in the Bronx. The defendants filed a motion for change of venue, claiming that none of the parties resided in the Bronx. The plaintiff opposed the motion, arguing that venue was proper because a large portion of the events that lead to the decedent’s death occurred in the Bronx. The court found in favor of the plaintiff, and the defendants appealed. On appeal, the appellate court reversed and moved the action to Orange County.

Grounds for Changing Venue in a New York Case

Under New York law, a party seeking a change of venue must not only demonstrate that the plaintiff’s choice of venue is improper, but also that the defendant’s choice of venue is appropriate. If a defendant meets this burden, the plaintiff must demonstrate that his or her chosen venue was proper. Further, the procedural rules provide that except when otherwise stated by law, an action must be tried in the County where one of the parties resided when the action commenced or where a substantial portion of the events that gave rise to the action occurred.

Published on: June 17, 2020

New York Court Discusses Staying Concurrent Medical Malpractice Claims Arising Out of the Same Act

by DeFrancisco & Falgiatano

It is the well-established law in New York that a plaintiff only gets one bite of the theoretical apple. In other words, a plaintiff cannot seek the same damages or litigate the same claims multiple times. Not only does this prevent a plaintiff from seeking to relitigate claims following a final judgment, but it also may prevent a plaintiff from pursuing multiple concurrent claims for the same damages against the same parties. This was discussed in a recent New York case in which the court assessed whether to stay a plaintiff’s state court medical malpractice claims pending resolution of her federal court malpractice claims. If you suffered harm due to negligent medical care, it is advisable to contact a dedicated Rochester medical malpractice attorney to discuss your options for seeking recourse.

Facts of the Case

It is alleged that the plaintiff underwent a surgical procedure that was performed by the defendant. She subsequently filed a lawsuit in the United States District Court for the Southern District of New York against the defendant asserting numerous claims, including intentional torts and medical malpractice, and alleged that the defendant caused her to suffer scars and other permanent harm, and performed the procedure without her consent. The defendant then filed a motion to stay the proceedings due to the fact that the plaintiff filed an action in the Supreme Court of the State of New York against the defendant, arising out of the same set of facts and asserting the same claims. The plaintiff opposed the motion.

Colorado River Abstention

Pursuant to the Colorado River Abstention Doctrine (the Doctrine), in cases in which there are concurrent actions in state and federal court that involved the same parties and the same underlying issues, the court can issue a stay as to one of the proceedings to avoid piecemeal litigation. The court explained that the Doctrine should only be applied in instances involving the contemporaneous exercise of concurrent jurisdictions. As such, the court must find the proceedings are parallel to issue a stay.

Published on: June 12, 2020

Court Discusses Dismissal of Medical Malpractice Cases for Lack of Prosecution in New York

by DeFrancisco & Falgiatano

In a medical malpractice case, whether the plaintiff’s claims are ultimately successful depends on numerous factors, including whether the plaintiff complies with the rules of procedure. In other words, even if a plaintiff has a meritorious claim, if he or she does not move his or her case along in a reasonable fashion as required under New York law, the plaintiff’s claim may be dismissed, despite the fact that the defendant may have caused the plaintiff’s harm. This was demonstrated in a recent New York case in which a woman sought damages for harm caused by a gynecologist, but failed to take any action in the case for over a year. If you were harmed by incompetent gynecological care, it is prudent to speak to a trusted Rochester gynecologic medical malpractice attorney to analyze whether you may be able to recover damages.

Factual and Procedural History

It is alleged that the plaintiff visited the defendant fertility clinic for an egg donation procedure. Prior to the procedure, the defendant’s employees administered an excessive amount of medication to the plaintiff, which resulted in ovarian hyperstimulation syndrome and multiple ovarian cysts. As such, the plaintiff filed a medical malpractice case against the defendant. The plaintiff filed her lawsuit in April 2015, and in September 2015, the plaintiff joined the issue, and the defendant served the plaintiff with demands for a bill of particulars, discovery requests, and a deposition notice. The plaintiff failed to respond, however, and until July 2017, when she served the defendant with discovery responses and a bill of particulars.

Reportedly, the defendant then sent the plaintiff another deposition notice. Depositions were never conducted or scheduled, however, and no other developments occurred in the case. As such, in 2020, the defendant filed a motion to dismiss the plaintiff’s complaint for lack of prosecution.