Rochester Medical Malpractice and Personal Injury Lawyer Blog

Published on: December 9, 2019

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

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.

Published on: November 24, 2019

Dismissal of Plaintiff’s Claims Highlights Importance of Expert Affidavits in New York Medical Malpractice Cases

by DeFrancisco & Falgiatano

A delayed diagnosis can cause irreparable harm, but proving a delay in providing an accurate diagnosis caused a person’s damages can be challenging and will typically require the testimony of one or more experts. The pitfalls of failing to obtain a qualified expert were recently demonstrated in a pediatric malpractice case, in which the court affirmed the dismissal of the plaintiff’s case due to an insufficient expert affidavit. If your child suffered harm due to negligent care provided in a hospital, it is prudent to speak with a capable Rochester pediatric malpractice attorney regarding your potential claims.

Factual and Procedural Background

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant hospital, arguing that the hospital’s delayed diagnosis caused the plaintiff to suffer harm. The plaintiff’s precise injuries were not set forth in the case. The defendant filed a motion for summary judgment, which the court granted, dismissing the plaintiff’s case. The plaintiff appealed, but on appeal, the appellate court affirmed the trial court’s decision.

Sufficiency of a Plaintiff’s Expert Affidavit

On appeal, the court stated that the defendant set forth a prima facie case showing that it was entitled to judgment as a matter of law. Specifically, the defendant submitted an expert affidavit from a pediatric neurologist that opined that the defendant did not depart from the accepted and good practice of medicine and that any departure did not cause the plaintiff’s alleged harm. The affidavit stated that as the plaintiff had only suffered one seizure due to a fever, imaging of the plaintiff’s brain was not indicated when he visited the emergency room of the defendant hospital. Further, the affidavit opined that although the plaintiff suffered from an arterial venous malformation (AVM), the AVM was not the cause of the plaintiff’s harm.

Published on: November 19, 2019

Court Reviews a Plaintiff’s Burden in Opposing Summary Judgment in a New York Medical Malpractice Case

by DeFrancisco & Falgiatano

In New York medical malpractice cases, the burden moves from the plaintiff to the defendant and then returns to the plaintiff. In other words, case law established that if the defendant set forth prima facie evidence showing it was entitled to a dismissal of the plaintiff’s claim, the plaintiff was required to refute the defendant’s arguments by showing that the defendant deviated from the standard of care and that the deviation caused the plaintiff’s harm. Recently, however, the Supreme Court, Appellate Division, Fourth Department, New York, analyzed the burden imposed on a plaintiff asserting medical malpractice claims and found it to be improper, in a case alleging cardiology malpractice. If you were injured by inadequate care rendered by a cardiologist, it is in your best interest to speak with an experienced Rochester cardiology malpractice attorney regarding your potential claims.

Factual Background of the Case

It is alleged that the plaintiff’s decedent underwent heart surgery performed by the defendant cardiologist and received post-surgical care from the other named defendants. Following the decedent’s death, the plaintiff filed a medical malpractice claim against the defendants. The defendants filed motions for summary judgment, which were granted in part and denied in part. The defendants whose motions were denied appealed.

Shifting Burdens in Medical Malpractice Cases

On appeal, the court noted that the case provided a good opportunity for the court to review whether the burden-shifting standard applied in medical malpractice cases was appropriate. The court stated that it was well-established that a defendant seeking dismissal via summary judgment in a medical malpractice case bears the burden of proving that he or she did not depart from the applicable standard of care, or that any departure did not harm the plaintiff. If the defendant meets this burden, however, the plaintiff must show both that the defendant deviated from the standard of care and that the deviation caused the plaintiff’s harm.

Published on: November 12, 2019

New York Court Denies Leave to File Late Notice of a Claim in a Birth Injury Case

by DeFrancisco & Falgiatano

There are strict timelines for when a person may file a medical malpractice case under New York law. While there are some exceptions to the statutory time limitations, a delay in pursuing a claim may result in a waiver of the right to recover damages. This was shown by a recent birth injury case decided by a court in the appellate division of the Supreme Court of New York, in which the court affirmed the dismissal of the plaintiff’s case in its entirety. If your child sustained injuries at birth due to negligent medical care, you should speak with a capable Rochester birth injury attorney regarding the claims that you may be able to set forth.

Factual and Procedural Background of the Case

The minor plaintiff filed a motion for leave to file a late notice of claim against the defendant, a hospital that is a public corporation. Specifically, the plaintiff sought leave to file a medical malpractice claim arising out of injuries he alleged he suffered at birth. The defendant filed a motion to dismiss. The court granted the defendant’s motion and denied the plaintiff’s motion, after which the plaintiff appealed. On appeal, the appellate court affirmed the trial court ruling.

Leave to Submit Late Notice of a Claim Under New York Law

Under General Municipal Law Section 50e, a plaintiff who wishes to assert a tort claim against a public corporation must provide the corporation with notice of the claim within 90 days of when the harm occurs. A plaintiff can seek leave to file late notice of a claim against a public corporation, but a court will only grant leave under certain circumstances. Specifically, the court will assess the cause of the delay and whether the delay caused substantial prejudice to the defendant.

Published on: November 5, 2019

New York Court Discusses Ramifications of Attorney Misconduct in a Surgical Malpractice Case

by DeFrancisco & Falgiatano

Anyone involved in a surgical malpractice case has the right to be represented by an attorney. If a person waives that right and chooses to proceed on his or her own behalf, then any attorney involved in the case can communicate directly with the person. If a person is represented by counsel, however, all communications must be sent to the person’s attorney. In a recent surgical malpractice case before a New York appellate court, the court discussed whether an attorney that violates the rules of professional conduct by speaking directly with a represented party should be disqualified from the case. If you or a loved one suffered harm due to surgical malpractice, it is wise to meet with a proficient Rochester surgical malpractice attorney to discuss your case.

Factual Background of the Case

It is reported that the plaintiff’s husband underwent surgery on his ankle. Three days after the surgery, the plaintiff’s husband died. The plaintiff subsequently filed a malpractice lawsuit against several people and entities involved in her husband’s surgery and subsequent care. During discovery, the plaintiff’s attorney sought to depose a witness who was part of the team that treated the plaintiff’s husband on the day he died, but who was not a party in the case. In the process of attempting to locate the witness, the plaintiff’s counsel was advised by an insurance company that another attorney would handle the matter for the witness.

Despite being informed that the witness was represented by counsel, the plaintiff’s counsel deposed the witness without her attorney being present. The defendants subsequently moved to strike the deposition testimony and to disqualify the plaintiff’s attorney, and the witness joined in the motion. The court found that plaintiff’s counsel violated the Professional Rules of Conduct, and granted the motion to strike, but did not disqualify plaintiff’s counsel. Defendants appealed.

Published on: October 31, 2019

Court Analyzes Liability for Failing to Obtain Informed Consent in New York Medical Malpractice Cases

by DeFrancisco & Falgiatano

When a person is harmed by negligent medical care, in many cases, there will be more than one party responsible for the harm. For example, a person who sustained injuries due to incompetent treatment in a hospital may be able to pursue claims against not only the treating physicians but also against the hospital. As shown in a recent New York appellate court case, however, while a hospital may be held vicariously liable for the negligence of its employees, it is not always clear whether liability rests with a hospital or another entity. If you were injured by insufficient care in a hospital, it is prudent to consult a trusted Rochester hospital malpractice attorney to discuss what evidence you must produce to establish liability.

Factual Background

It is reported that the plaintiff treated at the defendant hospital while she was pregnant and subsequently filed a malpractice claim against the defendant hospital and the defendant obstetrics practice following the premature birth of her son. Specifically, the plaintiff alleged that the defendant hospital deviated from the standard of care by negligently performing a vaginal ultrasound despite the fact that the plaintiff had been diagnosed with placenta previa, and in failing to obtain the plaintiff’s informed consent prior to performing the ultrasound.

Additionally, the plaintiff alleged that the defendant’s negligence caused her placenta to hemorrhage, which caused her son to be born prematurely, and to suffer brain damage and significant developmental delays. The defendant filed a motion for summary judgment on all claims except for those premised on a theory of vicarious liability. The court granted the defendant’s motion, and the plaintiff appealed.

Published on: October 29, 2019

Court Discusses Burdens of Proof in a New York Cardiology Malpractice Case

by DeFrancisco & Falgiatano

Summary judgment is a harsh remedy that is only to be used in the clearest cases. Thus, even if a defendant in a medical malpractice case establishes a prima facie right to judgment as a matter of law, the claims against the defendant will not be dismissed if the plaintiff establishes that there is a question of fact as to whether the defendant caused the plaintiff’s harm. A New York court recently analyzed what evidence is sufficient for each party to meet their burden of proof in a cardiology malpractice claim. If you or a loved one suffered harm due to negligent cardiac care, you should meet with a proficient Rochester cardiology malpractice attorney to discuss what evidence you must produce to establish liability.

Facts Concerning the Plaintiff’s Decedent’s Health

It is alleged that the plaintiff’s decedent died of a heart attack while he was at work. It was later revealed the heart attack was due to congestive heart failure, which was caused by hypertension and arteriosclerotic heart disease. Less than two weeks prior to the decedent’s death, he reportedly visited his primary care physician, who referred him to the defendant cardiologist due to abnormal lab results.

It is reported that the plaintiff filed a wrongful death and medical malpractice claim against the defendant, arguing the defendant failed to properly address the decedent’s abnormal test results and cardiac risk factors. After the completion of discovery, the defendant filed a motion for summary judgment.

Published on: October 21, 2019

Court Discusses Custom and Practice Evidence in New York Surgical Malpractice Cases

by DeFrancisco & Falgiatano

In surgical malpractice cases, evidence regarding what actions the defendant surgeon took before, during, and after the surgery is often offered by the plaintiff to prove liability or by the defendant in support of the argument that there was no deviation from the standard of care. Typically, the defendant’s acts are established via records or either party’s recollection of events. Recently, a New York appellate court analyzed whether a defendant surgeon can testify regarding what he or she did during a procedure based on his or her habit rather than actual knowledge. If you were harmed by a surgical procedure, it is advisable to speak with a diligent Rochester surgical malpractice attorney regarding what damages you may be owed.

Factual Background of the Case

It is alleged that the plaintiff consulted the defendant for treatment of an incisional hernia. The defendant attempted a surgical repair of the hernia, during which he sutured a mesh patch to the plaintiff’s abdominal wall. The patch had two sides, one of which was rough and intended to be placed against the abdominal wall, and the other of which was smooth and meant to protect the internal organs.

Reportedly, following the surgery, the plaintiff developed severe pain. It was later determined that the patch had been inserted backward, and the rough side had adhered to the plaintiff’s internal organs. The plaintiff sued the defendant, arguing that he deviated from the accepted standard of care by improperly suturing the patch to her abdominal wall. Prior to trial, the plaintiff filed a motion to prohibit the defendant from testifying at trial regarding his custom and practice in performing hernia repairs. The court granted the motion, but the plaintiff was permitted to testify regarding his usual practices regardless. The jury found in favor of the defendant, and the plaintiff appealed.

Published on: October 15, 2019

New York Court Discusses Factors Evaluated in Granting a Motion to Substitute in a Hospital Malpractice Case

by DeFrancisco & Falgiatano

It is not uncommon for a plaintiff who is pursuing damages due to medical malpractice to die following the institution of the lawsuit. Thus, in many cases, the need arises to substitute the administrator of the deceased plaintiff’s estate as a party in the lawsuit. Any substitution must be made in a timely manner, however, or the court may dismiss the claim in its entirety. In a recent hospital malpractice case, the appellate division of the Supreme Court of New York discussed the factors weighed in determining if an untimely motion to substitute should be granted. If you or someone you love suffered harm due to hospital malpractice, it is wise to consult a dedicated Rochester hospital malpractice attorney to discuss your potential claims.

Procedural Background of the Case

It is alleged that the plaintiffs, a mother and infant son, filed a malpractice lawsuit against the defendant hospital due to harm sustained by the plaintiff son. The plaintiff son subsequently died from his injuries, and the plaintiffs filed a motion to substitute the plaintiff son’s father, who was the administrator of the estate, as a plaintiff in place of the son, and to amend the caption. Further, the plaintiffs sought to amend the complaint to assert a wrongful death claim.

Reportedly, the defendants filed a motion to dismiss, arguing that the plaintiff’s motion to substitute was untimely. The court granted the defendant’s motion and dismissed the plaintiffs’ complaint in its entirety. The plaintiffs appealed.