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A medical malpractice lawsuit, like most civil claims, must be pursued in a timely manner; otherwise, the injured party may waive the right to recover damages. In some instances, though, plaintiffs that fail to file cases within the applicable statute of limitations may nonetheless be able to proceed with their claims if they can show that the statute was tolled. In a recent opinion issued in a medical malpractice case, a New York court discussed tolling of the statute of limitations for harm caused by foreign objects left in a person after surgery. If you suffered harm due to errors committed during surgery, it is advisable to speak to a Rochester medical malpractice lawyer to determine your potential claims.

The Plaintiff’s Claims

It is reported that the plaintiff visited the emergency department of the defendant hospital when she was ten years old with complaints of abdominal pain. She was diagnosed with appendicitis and underwent an emergency appendectomy which was performed by the defendant. Fourteen years later, she instituted a medical malpractice lawsuit against the defendants, alleging that foreign objects were left inside of her body following the surgery, causing her to suffer reproductive and gastrointestinal issues, and pain. The defendants moved to have the plaintiff’s claims dismissed, arguing that she failed to pursue them within the time provided by the applicable statute of limitations.

Tolling of the Statute of Limitations in Medical Malpractice Cases

Under New York law, the statute of limitations for a medical malpractice claim is typically two years and six months from the date the cause of action accrued. There is an exception, though, for cases that arise out of the discovery that a foreign object was left in the body of the patient. In such instances, the action may be commenced within one year of the date of the discovery of the foreign object or the revelation of facts that would lead to such discovery, whichever is earlier. Continue reading

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Doctors owe their patients a duty to provide the care expected of a reasonable practitioner working in the same specialty. They are not, however, typically expected to render treatment that exceeds the scope of their practice area. This was demonstrated in a recent New York opinion, in which the court dismissed the plaintiff’s claims against a doctor specializing in pulmonology. If you sustained damages due to the careless acts of a physician, it is smart to meet with a dedicated Rochester medical malpractice lawyer to assess your rights.

The Plaintiff’s Allegations

It is alleged that the plaintiff visited the emergency room of the defendant hospital with complaints of intermittent high fevers and flu-like symptoms. An infectious disease doctor determined he was suffering from a viral illness of dengue fever but that it was unlikely he was suffering from malaria. He was admitted to intensive care, where he was treated by the defendant pulmonologist. Following a course of antibiotics and steroids, he was discharged. He received flu and pneumonia vaccines prior to discharge.

Reportedly, he visited the emergency department of another hospital a few weeks later with complaints of dizziness, where he was diagnosed with malaria. He was treated and discharged but returned ten days later and was diagnosed with Guillian-Barre syndrome. He then filed a medical malpractice lawsuit against the defendants, alleging they were negligent in failing to diagnose him with malaria and for administering the flu shot. The defendants moved to dismiss the plaintiff’s claims. Continue reading

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While most treatments and procedures are ultimately beneficial to patients, they also carry some degree of risk. As such, doctors must advise patients of the benefits and potential harm that could arise from a proposed plan of treatment, as well as any available alternatives, before providing the suggested care. If a doctor fails to do so and the patient suffers harm as a result, it may constitute grounds for a lack of informed consent claim. Recently, a New York court issued an opinion discussing what a plaintiff must prove to demonstrate liability for the failure to obtain informed consent in an oncology malpractice case. If you suffered losses due to a negligent doctor, it is prudent to speak to a skilled Rochester medical malpractice lawyer as soon as possible.

The Plaintiff’s Claims

It is reported that the plaintiff underwent a total hysterectomy and bilateral salpingo-oophorectomy, which was conducted by the defendant gynecologic oncologist. Following the surgery, the plaintiff filed a medical malpractice lawsuit against the defendant, arguing in part that the surgery was unnecessary, was improperly performed, and that the defendant failed to obtain her informed consent. The defendant moved for summary judgment. The trial court granted the motion, after which the plaintiff appealed.

Establishing Liability for the Failure to Obtain Informed Consent

Under New York law, to establish medical malpractice based on a lack of informed consent, a plaintiff must show that the defendant failed to disclose the reasonable alternatives to a treatment in question and failed to explain the foreseeable risks associated with a treatment, that a reasonable doctor working in the same specialty would have disclosed in a similar situation. The plaintiff must also demonstrate that a reasonable patient in the same situation would not have undergone the treatment in question if he or she had been fully apprised of the risks and alternatives. Finally, the plaintiff must prove that the lack of informed consent proximately caused the harm suffered. Continue reading

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In all but the clearest of cases, what constitutes medical malpractice is generally not readily understood by the average juror. As such, medical malpractice cases typically hinge on expert testimony. Plaintiffs that fail to produce expert testimony, then, will likely have their cases dismissed, as they will be unable to demonstrate a breach of the standard of care. This was demonstrated in a recent New York opinion, in which the court dismissed a pro se plaintiff’s surgical malpractice claims via summary judgment, due to her failure to produce an expert affidavit. If you were harmed by a negligent surgeon, you could be owed compensation, and it is advisable to meet with a trusted Rochester medical malpractice lawyer to evaluate your situation.

The Plaintiff’s Alleged Harm

Allegedly, the plaintiff underwent a surgical procedure that was performed by the defendant, in which fat was transferred from her back, arms, and abdomen into other parts of her body. Following the procedure, she suffered pain in her right hip and bleeding. Additionally, she believed that pictures were taken of her when she was unconscious during the procedure. She subsequently filed a lawsuit against the defendant, alleging medical malpractice claims. After discovery was completed, the defendant moved for dismissal of the plaintiff’s claims by way of summary judgment. Upon reviewing the evidence presented, the court granted the defendant’s motion.

Proving Medical Negligence Under New York Law

The court explained that, in order to prove a medical malpractice claim in New York, a plaintiff must show that the defendant breached the standard of care accepted in the community and that the breach was the proximate cause of the plaintiff’s harm. Thus, if a defendant demonstrates that it did not depart from the standard of care or that any departure from the standard of care did not cause the plaintiff’s injuries, the defendant will be prima facie entitled to summary judgment. Continue reading

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Lung cancer is a devastating disease, and a delayed diagnosis can worsen the already poor prognosis many patients with lung cancer face. People who suffer harm because of a doctor’s failure to diagnose a disease may be able to recover damages via medical malpractice lawsuits. Just as a delay in providing an accurate diagnosis can cause a patient harm, delays in pursuing claims against a negligent provider can impair a plaintiff’s right to recover damages. The dangers of failing to file a complaint in a timely manner were discussed in a recent New York ruling in a case in which the defendant argued the plaintiff’s claims were time-barred. If your physician failed to provide you with a prompt diagnosis, you could be owed damages, and it is prudent to meet with a skillful Rochester medical malpractice lawyer as soon as possible.

The Plaintiff’s Allegations

It is alleged that the defendants failed to diagnose the plaintiff’s lung cancer in May 2014. The plaintiff did not discover the failure until October 2019. She subsequently filed a medical malpractice lawsuit in March 2020, asserting negligence and lack of informed consent claims. The defendants argued that the plaintiff’s claims were barred by the applicable statute of limitations and moved to dismiss them. The plaintiff argued that a recent amendment to the statute of limitations applied, and therefore, her claims were not time-barred. The court ultimately agreed with the plaintiff and denied the defendants’ motion to dismiss.

Time Limitations in Medical Malpractice Claims

In its analysis, the court explained that the prior version of the law setting forth the time limitations for pursuing medical malpractice claims required them to be filed within two years of the alleged malpractice. In 2018, however, the statute was amended to state that a plaintiff has two and a half years from the date he or she reasonably knows or should know that there is an injury that was caused by malpractice, or within two and a half years of the end of continuous treatment, whichever provides more time. Continue reading

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Sadly, many people seeking care in the emergency room of a hospital ultimately suffer devastating harm. The mere occurrence of a catastrophic injury does not necessarily prove medical malpractice has occurred, though. Instead, a plaintiff seeking damages for medical negligence must produce an expert report showing that the evidence of record supports the claims alleged. Plaintiffs that fail to produce expert testimony that adequately demonstrates malpractice may have their claims dismissed, as demonstrated in a recent New York opinion. If you sustained damages because of the negligence of an emergency room doctor, you might be able to recover compensation, and it is advisable to meet with a dedicated Rochester emergency room malpractice lawyer to assess your possible claims.

The Plaintiff’s Care

Allegedly, the plaintiff visited the defendant’s emergency department for the treatment of what appeared to be a transient ischemic attack. He was evaluated and discharged the following day. A week later, he suffered a stroke. He then filed a medical malpractice lawsuit against the defendant, alleging that the care he was provided in the emergency room was negligent and resulted in his subsequent harm. After discovery was completed, the defendant moved for summary judgment. The plaintiff opposed the motion, but the court granted it regardless. The plaintiff then appealed.

Evidence Needed to Prove Medical Malpractice

A defendant moving for summary judgment in a medical malpractice case must establish, prima facie, that there was no deviation from the standard of care accepted in the community or that any departure that occurred did not proximately cause the plaintiff’s alleged injuries. In turn, the plaintiff must demonstrate that a triable issue of fact exists on one or more of the elements on which the defendant has made a prima facie showing. Continue reading

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Many children suffer from asthma, and while it is generally a manageable condition, it can lead to acute medical events that require immediate treatment. If a paramedic fails to properly provide emergency care to a child having an asthma attack, it can have tragic consequences. Incompetent care does not always equal malpractice, though, as demonstrated in a recent New York opinion, in which the court ruled that while the defendant breached the standard of care, the breach did not cause the harm suffered. If your child was hurt because of insufficient medical treatment, you could be owed damages, and it is prudent to speak to a trusted Rochester medical malpractice lawyer about your rights.

The Child’s Care

It is reported that the child suffered from asthma and frequently needed to use a nebulizer. In November 2012, when she was seven years old, the child advised her mother that she could not breathe. The mother administered the nebulizer treatment and called 911, which prompted paramedics to arrive. The child was transported to the defendant hospital, where she tragically died that evening.

Allegedly, the mother instituted a medical malpractice lawsuit, arguing in part that the paramedics, as agents of the defendant, negligently failed to perform CPR on the child, resulting in her death. The defendants moved for dismissal via summary judgment, and the court granted the motion. The mother appealed. Continue reading

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Typically, people who hit their heads in car collisions will go to a hospital, which in many instances will result in a diagnosis of a traumatic brain injury. If the doctors in a hospital failed to conduct the appropriate tests, though, it can result in a missed diagnosis, which tragically can lead to permanent harm. People who suffer lifelong injuries due to hospital malpractice are often owed substantial damages, but liability may be disputed by the hospital, regardless of what the jury finds. Recently, a New York court discussed the grounds for setting aside a verdict in a case in which the plaintiff suffered irreparable brain damage due to the hospital’s negligence. If you were hurt by incompetent care in a hospital, you could be owed significant damages, and it is advisable to meet with a dedicated Rochester medical malpractice lawyer to assess your claims.

The Plaintiff’s Harm

Reportedly, the plaintiff visited the defendant’s hospital following a car accident. He underwent a CT scan of the brain that showed a hematoma but no acute bleeding. A few weeks later, an MRI was conducted to rule out a diffuse axonal injury, but the scan was incomplete because the plaintiff moved. No further testing was conducted at that time. Three weeks later, the defendant was unable to move to the edge of the bed at a physical therapy session, and the following morning he had slurred speech, lethargy, and could not follow commands.

Allegedly, a CT scan revealed an acute hematoma that required emergency surgery. Following the surgery, he had permanent cognitive injuries and was unable to care for himself. A medical negligence lawsuit was instituted on his behalf against the hospital. A jury trial was held, resulting in a verdict of approximately $22 million. The defendant moved to set aside the verdict due to the alleged misconduct of the plaintiff’s attorney during closing statements. The trial court granted the motion, and the plaintiff appealed. Continue reading

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People harmed by incompetent medical care often pursue damages via malpractice claims, but not all harm suffered by patients necessarily constitutes grounds for a lawsuit. To avoid frivolous cases, plaintiffs must meet certain pleading requirements to establish the validity of their claims, and if they do not, their cases may be adversely impacted. The potential consequences of failing to abide by procedural rules were demonstrated in a recent New York ruling in a hospital malpractice case in which the court ultimately permitted the plaintiff to proceed despite pleading errors. If you or a loved one suffered harm due to negligent care in a hospital, it is in your best interest to speak to a Rochester medical malpractice attorney about your options.

The Procedural History

It is reported that the plaintiff’s decedent, who had a history of mental illness, climbed to the edge of the roof of his building with the intent of ending his life via suicide. Police officers encouraged him to come down and transported him to the defendant hospital. He was discharged the following day, and one day after that, he died due to suicide. The plaintiff, the decedent’s mother, filed a lawsuit against the defendant, arguing their negligent failure to treat the decedent led to his death.

Allegedly, instead of attaching a certificate of merit to the complaint as required under the New York rules of procedure, the plaintiff’s attorney filed a certificate of counsel stating he was unable to consult a doctor prior to filing a complaint. The plaintiff then failed to file a certificate of merit within 90 days but moved to seek to leave to file a late notice of a claim two years later, at which point the defendant filed a motion to dismiss. The court denied the motion, and the defendant appealed. Continue reading

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Cancer is a destructive disease, and when it is not properly diagnosed, it is often fatal. People who lose loved ones because of a doctor’s failure to diagnose or treat cancer have the right to seek damages via a wrongful death claim. In some instances, however, even if there is evidence of negligence, a plaintiff will be denied damages for medical malpractice if the complaint does not contain sufficient factual allegations. This was demonstrated in a recent New York ruling, in which the court dismissed the plaintiff’s medical negligence and wrongful death lawsuit due to a failure to state a claim. If you lost a loved one due to a physician’s incompetent care, it is wise to consult a Rochester medical malpractice attorney regarding your rights.

The Decedent’s Care

It is reported that the decedent, a veteran, visited a veteran’s medical center funded by the defendant in June 2015 for a colonoscopy. It was noted that he was suffering from an anal lesion, but no biopsy was conducted. He had a follow-up appointment a month later due to anal bleeding, and the lesion was once again noted but not biopsied. A month after that, he returned, and the lesion was noted but not biopsied.

It is alleged that a year later, he was diagnosed with anal cancer, and the following year he died due to metastatic colon cancer. The plaintiff, the decedent’s wife, filed a lawsuit against the defendant alleging claims of medical malpractice and wrongful death. In response, the defendant filed a motion to dismiss. Continue reading

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