Rochester Medical Malpractice and Personal Injury Lawyer Blog

Published on: March 27, 2020

New York Court Explains Grounds for Denying a Motion for Substitution in a Medical Malpractice Case

It is not uncommon for a plaintiff in a medical malpractice case to pass away prior to the resolution of the case. A plaintiff’s claims are not extinguished merely because a plaintiff dies, however. Instead, the plaintiff’s estate generally has the right to pursue claims on behalf of the plaintiff’s beneficiaries and can substitute another party as the plaintiff. It is important for interested parties to act promptly following a plaintiff’s death, however, as a delay can result in a dismissal of the claims altogether, as demonstrated in a recent hospital malpractice case. If you or a loved one sustained injuries due to negligent care in a hospital, it is wise to speak to a trusted Rochester hospital malpractice attorney regarding what claims you may be able to pursue.

Facts of the Case

Allegedly, in 2005 the plaintiff’s decedent, who had Stage IV lung cancer, was admitted to the defendant hospital after she fell out of her wheelchair and struck her head. During her admission she was administered an excessive amount of Dilaudid, which the plaintiff averred lead to the decedent’s death. In 2007, the plaintiff, who was the decedent’s husband and the administrator of her estate, filed a medical malpractice lawsuit against the defendant. In 2011, the case was marked disposed of due to the plaintiff’s failure to file a note of issue, and in 2013, the plaintiff died.

It is reported that in 2017, the plaintiff’s attorney advised the defendant’s attorney that the plaintiff died. The defendant then moved to dismiss the complaint due to the plaintiff’s failure to substitute a new plaintiff, and the plaintiff’s attorney filed a cross-motion to substitute the administrator of the plaintiff’s estate as the new plaintiff. The court granted the defendant’s motion and denied the plaintiff’s, after which the plaintiff appealed.

Published on: March 27, 2020

New York Court Discusses Liability of Hospitals and Residents for Surgical Errors

by DeFrancisco & Falgiatano

In many instances, determining who may be liable for harm caused by negligent medical care may be unexpectedly complicated. For example, even if multiple physicians improperly perform a surgical procedure in a hospital, whether each physician or the hospital may be held liable depends on numerous factors. This was discussed in a recent New York ophthalmology malpractice case, in which the court determined that neither a resident that took part in a negligently performed surgery nor the hospital where it was performed could be held liable for the plaintiff’s alleged harm. If you were injured by negligent care provided by an ophthalmologist, it is in your best interest to speak with a vigilant Rochester ophthalmology malpractice attorney regarding who may be liable for your harm.

History of the Case

Allegedly, the plaintiff treated at the defendant hospital in June 2013, where he underwent a surgical procedure to remove cataracts. The surgery was performed by the defendant attending physician, with the assistance of the defendant resident. The plaintiff ultimately filed a medical malpractice lawsuit, alleging the surgery was improperly performed, resulting in an occlusion of his central retinal vein. The defendant hospital and defendant resident filed motions for summary judgment, which the court granted. The plaintiff appealed.

Liability of Residents and Hospitals for Medical Errors

Under New York law, a resident who does not exercise independent medical judgment but merely assists a doctor during a procedure, cannot be held liable for any medical malpractice that occurs during the procedure. There is an exception, however, for cases in which the doctor’s guidance so drastically departed from normal practice that the resident should be held accountable for failing to intervene. In the subject case, the court noted that both the testimony of the parties and the medical records established that the defendant physician had complete control over the diagnosis of the plaintiff and the surgery, including the surgical approach. Further, the defendants demonstrated that the defendant physician did not so greatly depart from the standard of care so as to require the defendant resident to intervene.

Published on: March 21, 2020

New York Court Discusses Medical Malpractice Cases Involving Claims of Negligence and Failure to Obtain Consent

by DeFrancisco & Falgiatano

It is not uncommon for a plaintiff harmed by negligent medical care to name multiple defendants or set forth more than one claim of medical malpractice. For example, a plaintiff may allege a defendant is liable for providing negligent care and for failing to obtain informed consent. Simply because a plaintiff has sufficient evidence to prove one claim does not mean he or she will be able to succeed on all claims, as demonstrated in a recent New York case in which the appellate court affirmed the trial court’s dismissal of a motion for summary judgment on a negligence claim against a hospital, but reversed with regard to a failure to obtain informed consent claim. If you sustained damages due to inadequate care you received in a hospital, it is advisable to meet with a knowledgeable Rochester hospital malpractice attorney to discuss your potential claims.

History of the Case

It is reported that the plaintiff’s decedent visited the defendant hospital in February 2014 with multiple complaints. He ultimately died, after which his family filed a wrongful death lawsuit against the defendant hospital and defendant practitioner, alleging medical malpractice and failure to obtain informed consent. The defendants moved to have the plaintiff’s case dismissed via summary judgment. The court denied the defendant’s motion, and the defendants appealed.

Sufficient Evidence to Sustain Medical Malpractice Claims

On appeal, the court explained that a defendant in a medical malpractice case must establish the lack of any material issues of fact with respect to at least one of the elements of a medical malpractice claim. Specifically, the defendant must either demonstrate that there is no factual dispute as to whether the defendant departed from the applicable standard of care, or as to whether any alleged departure was the proximate cause of the plaintiff’s harm. If the defendant sets forth evidence that no factual dispute exists as to both elements, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the deviation and to causation elements.

Published on: March 12, 2020

Court Discusses Physicians’ Duties In Medical Malpractice Cases in New York

by DeFrancisco & Falgiatano

Under New York law, a plaintiff alleging medical malpractice must establish that a treating medical provider breached a duty the provider owed the plaintiff. Specifically, the plaintiff must show that the medical provider deviated from accepted medical practice. In other words, a provider cannot be held liable for medical malpractice for failing to undertake acts not required by the standard of care. This was discussed in a recent case decided by a New York appellate court, in which the plaintiff alleged a physician that treated him during an involuntary confinement committed malpractice by failing to review his criminal history. If you suffered harm due to negligent medical care, it is prudent to seek the advice of a skillful Rochester medical malpractice attorney regarding whether you may have a viable claim.

Factual Background of the Case

It is alleged that in 1983 the plaintiff was indicted for multiple crimes, including burglary and sodomizing a child. He pleaded guilty to the burglary charge and was sentenced to eight to sixteen years imprisonment. He served thirteen years in prison, and during his imprisonment was admitted to a psychiatric hospital numerous times. Following his release from prison, he was retained in a state mental health facility for six years. After his eventual release, he filed multiple claims against the State, including medical malpractice.

Reportedly, the basis of the plaintiff’s medical malpractice claim was the assertion that his treatment arose out of the belief that he plead guilty to sodomy, even though he did not. He further alleged that the treatment he received based on this mistaken belief caused him to suffer anxiety and denied him certain privileges. The court entered a judgment in favor of the defendant following a trial. The plaintiff then appealed.

Published on: March 6, 2020

New York Court Discusses Standard of Care in Emergency Room Malpractice Case

by DeFrancisco & Falgiatano

In some instances in which a person presents to the emergency room, the source of the person’s symptoms may not be easily ascertainable, or more than one medical issue may be causing the person’s complaints. Thus, it is not uncommon for a person in the emergency room to be treated for multiple conditions. In cases in which a person suffering from numerous ailments sustains harm due to the negligent treatment of one ailment, the process of establishing liability can be complicated, as shown in a recent New York appellate ruling. If you were injured by inadequate care rendered in an emergency room, it is advisable to meet with a capable Rochester emergency room malpractice attorney regarding your potential claims.

Facts Regarding the Plaintiff’s Alleged Harm

It is alleged that the plaintiff presented to the emergency room with complaints of abdominal pain. She was subsequently diagnosed with acute appendicitis, and a pelvic mass or ovarian cyst. She was admitted to the surgical department, where she underwent an appendectomy and an intraoperative gynecological consultation. The consultation revealed the plaintiff’s pelvic mass may be malignant, and she should be transferred to another hospital for treatment by an oncologist.

Reportedly, she was discharged, and a week later underwent exploratory surgery to remove her pelvic mass, during which it was determined she was suffering from ovarian torsion that required removal of her left ovary and fallopian tube. She then filed a lawsuit against the defendant emergency room physician, surgeon, and hospital, arguing that they were negligent in diagnosing her appendicitis as an acute condition, failing to obtain a gynecological consultation prior to performing the appendectomy, and failing to treat the pelvic mass at the time of the appendectomy. The defendants filed motions for summary judgment, which the court denied. The defendant surgeon appealed.

Published on: February 28, 2020

New York Court Discusses Medical Malpractice Claims Under the Federal Tort Claims Act

by DeFrancisco & Falgiatano

While all New York medical malpractice cases allege that a plaintiff suffered harm due to a medical provider’s incompetent care, the plaintiff’s burden of proof varies depending on whether the defendant provider is a private individual or entity or the United States Government. The standards for proving a government entity is liable for medical malpractice were recently discussed in a primary care malpractice case arising out of treatment at a federally funded clinic. If you suffered harm due to incompetent care administered by a primary care physician, it is prudent to speak with a seasoned Rochester medical malpractice attorney to discuss whether you have a viable claim for damages.

Factual Background

Allegedly, the plaintiff sought treatment from the defendant primary care physician, who worked at the defendant federally funded clinic, and the defendant endocrinologist, who worked at the defendant private medical center, for a variety of health issues from 2010 through 2012. During his treatment, he underwent a variety of tests, which indicated various issues but no underlying cause of his ongoing health concerns. Then, in 2015, the plaintiff was diagnosed with kidney cancer. As such, the plaintiff filed a medical malpractice claim against the defendants for failing to diagnose and treat his cancer in a timely manner. The defendants filed motions for summary judgment. The defendant federally funded clinic argued that the plaintiff’s expert report was too speculative and should be precluded pursuant to the federal rules of evidence. The court disagreed, denying the defendant federally funded clinic’s motion.

Medical Malpractice Under the Federal Tort Claims Act (FTCA)

The FTCA states that the liability of the United States is the same as the liability imposed on a private person under the laws of the state where the harm allegedly occurred. Thus, a plaintiff pursuing a medical malpractice claim against a government entity in New York must show that the defendant departed from the accepted standard of care in the medical community where the defendant practiced, and the departure caused the plaintiff’s harm.

Published on: February 22, 2020

New York Court Discusses Standard of Care in Medical Malpractice Claims Alleging Lack of Informed Consent

by DeFrancisco & Falgiatano

Medical malpractice claims do not only arise out of improperly performed procedures or a delay in diagnosis or treating an illness. Rather, a patient can seek damages from a physician if the patient is harmed by the physician’s failure to obtain the patient’s informed consent prior to providing treatment. In a recent case decided by a court in the Appellate Division of the Supreme Court of New York, the standards for determining whether a practitioner deviated from the standard of care in an informed consent claim were discussed. If you sustained damages due to your doctor’s failure to advise you of the risks of a procedure or treatment, you should confer with a trusted Rochester medical malpractice attorney regarding what redress may be available for your harm.

Facts and Procedural Background of the Case

It is reported that the plaintiff, who was suffering from prostate cancer, sought treatment from the defendant oncologist. The defendant treated and counseled the plaintiff. The plaintiff subsequently suffered debilitating side effects from the treatment that left him permanently disabled. He filed a medical malpractice claim against the defendant oncologist and defendant hospital, alleging that the defendant oncologist deviated from the standard of care in administering the treatment and that the defendant oncologist failed to obtain the plaintiff’s informed consent prior to the treatment. Following a trial, the jury found in favor of the defendants. The plaintiff then filed a motion to have the verdict set aside as against the weight of the evidence.

Proving Deviation from the Standard of Care in Lack of Informed Consent Claims

The main issues on appeal were whether the court erred in precluding portions of the plaintiff’s expert’s testimony at trial and whether the plaintiff’s expert testimony was sufficient to establish that the defendant oncologist deviated from the standard of care. Ultimately, the court found that the evidence supported the jury’s findings in favor of the defendant and denied the plaintiff’s motion. Specifically, the court ruled that the defendant oncologist did not depart from the standard of care or fail to obtain the plaintiff’s informed consent prior to treatment.

Published on: February 16, 2020

Court Discusses Vicarious Liability in Medical Malpractice Cases in New York

by DeFrancisco & Falgiatano

If a patient is harmed by incompetent medical care provided in a hospital, the patient may not only be able to pursue claims against the negligent medical provider, but he or she may also be able to pursue claims against the hospital as well. Whether a hospital can be held liable for medical malpractice depends on the facts surrounding the patient’s harm and the relationship between the doctor and the medical provider, as discussed in a recent case decided by a court in the Appellate Division of the Supreme Court of New York. If you were harmed by insufficient care in a hospital, you should meet with a skillful Rochester hospital malpractice attorney to assess what claims you might be able to pursue.

Facts of the Case

Reportedly, the plaintiff visited the emergency department of the defendant hospital in April 2009, with complaints of shortness of breath and chest pain. He was admitted to the defendant hospital, where he was treated by the defendant physician, who was a volunteer. Subsequently, a cardiologist, who was not an employee of the hospital, performed a cardiac catheterization on the plaintiff. A few weeks after the procedure, the plaintiff visited a second hospital due to pain and bleeding in his groin. He was diagnosed with necrotizing fasciitis in his thigh and groin and underwent surgery to remove the necrotic tissue.

It is alleged that he then filed a medical malpractice lawsuit against the defendants, alleging they negligently failed to diagnose and treat a hematoma in his groin in a timely manner, which led to necrosis. The defendants each filed a motion for summary judgment. The court granted the motions, and the plaintiff appealed. On appeal, the court vacated the earlier orders and denied the defendants’ motions. The defendants then appealed.

Published on: February 10, 2020

New York Court Discusses Sufficiency of Expert Affirmations In Medical Malpractice Cases

by DeFrancisco & Falgiatano

In most medical malpractice cases, the parties will produce expert affirmations in support of their claims or defenses. It is not sufficient to merely produce an expert affirmation, however. Rather, the affirmation’s weight and credibility will be assessed by whether it meets certain requirements. This was demonstrated in a recent case before a court in the Appellate Division of the Supreme Court of New York, in which the court affirmed the dismissal of a pediatric malpractice case due to the insufficiencies of the plaintiff’s expert affirmation. If your child suffered harm due to inadequate care provided by a pediatrician, it is prudent to consult a skilled Rochester pediatric malpractice attorney regarding what evidence you must produce to recover compensation.

Factual Background

It is alleged that the minor plaintiff was treated by the defendant pediatricians and at the defendant hospital in December 2017. The defendants failed to diagnose her with viral encephalitis in a timely manner, which caused her to suffer permanent impairments that required her to need care and assistance for the remainder of her life. Thus, the minor child and her parents, filed a medical malpractice lawsuit against the defendants. The defendants each filed motions for summary judgment, asking the court to dismiss the plaintiffs’ claims against them. The court granted the respective motions, and the plaintiffs appealed. Upon review, the appellate court affirmed the trial court ruling.

Sufficiency of an Expert Affidavit in a Medical Malpractice Case

In the subject case, the defendant hospital established it’s right to judgment in its favor as a matter of law through the affirmation of its expert. Specifically, the expert reviewed the hospital’s records and the depositions taken in the case and found that the hospital’s doctors’ treatment of the minor plaintiff complied with the accepted standard of care and that regardless, any departure did not cause the minor plaintiff’s harm.

Published on: February 5, 2020

New York Court Discusses Admissibility of Expert Reports in Medical Malpractice Cases

by DeFrancisco & Falgiatano

In most medical malpractice cases, the strength of each party’s position comes down to the credibility of their experts. Not only must a plaintiff’s expert set forth an opinion sufficient to establish the defendant’s liability, however, the expert must also demonstrate that he or she is sufficiently qualified to render such an opinion. In a recent surgical malpractice case determined by the Supreme Court, Appellate Division, Fourth Department, New York, the court discussed the parameters for determining whether a plaintiff’s expert report is sufficient to avoid dismissal through summary judgment. If you or a loved one suffered harm due to a negligently performed surgery, you should speak with a diligent Rochester surgical malpractice attorney to discuss what claims you may be able to pursue.

Procedural Background of the Case

It is alleged that the plaintiff’s decedent underwent abdominal surgeries performed by the defendant physicians. The plaintiff then filed a medical malpractice lawsuit against the defendants, arguing that the surgeries were negligently performed, which caused the decedent to suffer the injuries that led to her death. The defendants filed a motion for summary judgment, which the court granted. The plaintiff appealed. On appeal, the appellate court reversed the trial court ruling.

Sufficiency of an Expert’s Qualifications and Report

On appeal, the court found that the defendants met burden imposed on them by establishing that they did not depart from the standard of care, or that their departure did not cause the decedent’s harm, by submitting an expert affidavit that was specific, detailed, and factual in nature, and refuted each of the claims set forth in the plaintiff’s bill of particulars. As the defendants met the burden of proving their compliance with the standard of care and the absence of liability for the plaintiff’s harm, the burden shifted from the defendant to the plaintiff to raise a triable issue of fact. In other words, the plaintiff was required to produce an expert affidavit that opined both that the defendants departed from the standard of care and that the departure caused the plaintiffs harm.