Rochester Medical Malpractice and Personal Injury Lawyer Blog

Published on: July 19, 2019

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

In any medical malpractice case, while the plaintiff has the discretion to control which venue the case is filed in, the defendant can move for a change of venue if it feels the venue is improper. A New York trial court recently addressed the issue of when a change of venue is appropriate in a neurosurgery malpractice case. If you suffered harm due to inadequate neurosurgical care, it is critical to retain a Rochester neurosurgery malpractice attorney with the knowledge and experience needed to properly handle the procedural aspects of your claim.

Factual and Procedural Background

Reportedly, the plaintiff husband treated with the defendant physicians at the defendant hospital for an ophthalmic aneurysm. Plaintiffs subsequently filed a medical malpractice claim against the defendants in 2013, arising out of harm allegedly caused by care the plaintiff husband received from the defendants. The case was filed in Bronx County, based on the plaintiff wife’s residence. The plaintiffs move to Schenectady County in 2014. In 2019, the parties stipulated to dismiss the defendant hospital. Subsequently, the remaining defendants filed a motion for change of venue to Westchester County, arguing that the venue was no longer proper as none of the parties resided in Bronx County, and the alleged malpractice occurred in Westchester County. The court denied the motion.

Standard for Granting a Change of Venue

In New York, a defendant can seek a change of venue within a reasonable time after the lawsuit is commenced. There are three specific grounds for change of venue under the relevant statute. First, venue can be changed if the designated county is improper. Venue can also be changed if an impartial trial cannot be conducted in the relevant county, or if a change of venue is appropriate for the convenience of the material witnesses. Here, the defendants argued that a change of venue was necessary because it was not the proper county, as none of the parties lived there.

Published on: July 13, 2019

New York Court Discusses Standard for Granting Summary Judgment in Obstetric Malpractice Case

by DeFrancisco & Falgiatano

In a New York medical malpractice case, the burden shifts from the plaintiff to the defendant and then back to the plaintiff, with regards to proving whether the defendant caused the harm alleged. In many cases, after discovery is completed, the defendant will file a motion for summary judgment, asking the court to dismiss the case in its entirety on the basis that the plaintiff has insufficient evidence to support his or her claims. A New York court recently assessed whether the defendants were entitled to summary judgment, in a case in which the plaintiffs alleged the defendants committed obstetric malpractice by failing to diagnose the plaintiff child’s chromosomal disorder prior to birth. If your child was born with a condition or disorder that should have been diagnosed prior to his or her birth you should consult a skillful Rochester obstetric malpractice attorney to discuss whether you may be able to recover damages.

Factual Background of the Case

It is alleged that the plaintiff child was born with Cri Du Chat Syndrome (CDC). The plaintiff parents filed a lawsuit against the defendant hospital and defendant obstetrician, alleging that the defendant obstetrician committed medical malpractice by failing to discover the plaintiff child’s CDC prior to birth. Specifically, the plaintiffs alleged that the defendant failed to address results of a blood test that indicated a potential chromosomal defect, failed to perform invasive genetic testing, and failed to perform sonograms after the 32^ndweek of pregnancy to rule out intrauterine growth restriction. The defendants filed a motion for summary judgment, asking the court to dismiss the case.

Standard for Granting Motion for Summary Judgment

The court noted that the defendant met the initial burden of showing their prima facie entitlement to judgment as a matter of law by submitting an expert affirmation stating that the defendant doctor did not depart from the appropriate standard of care. The court held, however, that the plaintiffs’ reply was adequate to overcome the defendants’ expert opinion.

Published on: July 5, 2019

New York Court Rules the Continuous Treatment Doctrine Does Not Apply When Care is Unrelated to the Harm Alleged

by DeFrancisco & Falgiatano

If a cardiologist provides negligent care that causes a person harm, the person can pursue a claim against the cardiologist for damages. As with any civil claim, there are deadlines that apply to a person pursuing a cardiology malpractice claim, and the failure to abide by the deadlines can result in a waiver of the right to recover damages, regardless of the severity of the harm sustained. In some cases, however, the statute of limitations can be tolled if the injured patient continues to treat with the cardiologist after the date of the alleged harm.

The Appellate Division of the Supreme Court of New York recently discussed the tolling of the statute of limitations under the continuous treatment doctrine in a case in which it affirmed the dismissal of a cardiology malpractice claim as time barred. If you suffered harm because of negligent cardiac care, it is imperative to consult a skillful Rochester cardiology malpractice attorney as soon as possible to discuss your potential claims.

Facts Regarding the Plaintiff’s Treatment

It is reported that the plaintiff was suffering from end stage kidney disease and kidney failure and was on the list for a kidney transplant. In October 2015, he presented to the defendant medical center for a pre-transplant examination. During the examination he underwent a chest x-ray that revealed pericardial effusion. The plaintiff subsequently underwent a pericardiocentesis to drain the fluid around his heart. During the procedure, the plaintiff’s heart was punctured, and he was required to undergo an emergency sternotomy to repair his left ventricle.

Published on: June 29, 2019

Court Explains Differences Between New York Negligence and Malpractice Lawsuits Against Hospitals

by DeFrancisco & Falgiatano

Although most medical malpractice cases allege that the defendant medical care provider’s breach of the standard of care was due to negligence, rather than an intentional act, there are key differences between an ordinary negligence claim and a medical malpractice claim. The Supreme Court of New York, Appellate Division, recently distinguished between negligence and medical malpractice claims in a case in which the plaintiff alleged a hospital’s negligence caused her to sustain harm following a surgery. If your health was harmed by hospital malpractice it is essential to retain an experienced Rochester hospital malpractice attorney to assist you in pursuing claims against anyone responsible for your harm.

Facts Regarding the Plaintiff’s Harm

Allegedly, the plaintiff underwent a surgical procedure at the defendant hospital. Following the surgery, the plaintiff experienced substantial memory loss and threatened to leave the hospital several times. Due to her symptoms and a recommendation from her psychiatrist, the plaintiff spent a portion of her stay in the hospital in a cluster room or under one-on-one supervision. The plaintiff left the hospital and was found five days later with numerous injuries.

Reportedly, the plaintiff filed a lawsuit against the defendant hospital, alleging that the hospital negligently failed to provide her with appropriate supervision and care. The defendant moved to compel the plaintiff to produce a certificate of merit, arguing that her claims sounded in malpractice. The plaintiff opposed the motion and moved for leave to amend her complaint. The court granted the defendant’s motion and granted the plaintiff leave to amend, to the extent she intended to add a claim for malpractice. The plaintiff appealed.

Published on: June 25, 2019

New York Court Discusses Sufficiency of Expert Opinions in Surgical Malpractice Cases

by DeFrancisco & Falgiatano

The basis of any Rochester surgical malpractice claim is the assertion that a physician caused harm by deviating from the standard of care. Therefore, as the ordinary layperson does not have any knowledge regarding what level of care is required to comply with the standard, both parties in a medical malpractice case must submit expert opinions in support of their position. In a recent Rochester surgical malpractice case, the court analyzed what constitutes a sufficient medical expert opinion for the purposes of defeating a motion for summary judgment. If you were harmed by surgical malpractice you should consult a trusted Rochester surgical malpractice attorney regarding your alleged harm and what evidence you must produce to obtain a successful outcome.

Factual Background

It is reported that the plaintiff underwent a transurethral resection of a tumor. She allegedly suffered injuries during the surgery and filed a lawsuit against the defendant physician that performed the surgery, and the defendant hospital where the surgery was performed. The defendants filed a motion for summary judgment, which the court granted, dismissing the case. The plaintiff appealed.

What Constitutes a Sufficient Medical Expert Opinion

On appeal, the issue presented was whether the plaintiff raised a triable issue of material fact. The court noted that the defendants submitted an affidavit of a medical expert that addressed the negligence claims asserted by the plaintiff. As such, the defendants met their initial burden of establishing that they did not deviate from the appropriate standard of care, or that any deviation did not cause the harm the plaintiff allegedly suffered.

Published on: June 20, 2019

Court Discusses Grounds for Granting an Extension to File a Complaint in a New York Hospital Malpractice Case

by DeFrancisco & Falgiatano

In any medical malpractice lawsuit, it is important to hire an attorney who is mindful of statutory filing obligations, as the failure to comply with deadlines can drastically impair a plaintiff’s right to recover damages. Recently, the Supreme Court of New York, Appellate division, discussed when it is appropriate to grant an extension in a hospital malpractice case, and when the case must be dismissed. If you sustained any injury or illness due to hospital malpractice it is vital to engage the services of a skilled Rochester hospital malpractice attorney to help you develop persuasive arguments in favor of your recovery.

Factual and Procedural Background

It is reported that the plaintiff, who was not represented by an attorney, filed an amended summons of notice on December 23, 2016. Approximately three and a half months later, on April 18, 2017, the defendants, three hospitals that provided treatment to plaintiff and one physician, filed a demand for a complaint. Subsequently, on May 25, 2016, the defendants moved to dismiss the action pursuant to CPLR 3012(b), due to the plaintiff’s failure to file the complaint in a timely manner.

Allegedly, the plaintiff opposed the motion, and filed her complaint on June 26, 2017, alleging claims of medical malpractice against the defendants. The court denied the defendants’ motion to dismiss, and on its own accord granted the plaintiff an extension of time to serve the complaint. The court also ordered the defendants to accept the complaint. The defendants appealed.

Published on: June 12, 2019

New York Court Analyzes Sufficiency of Evidence in a Case Alleging Malpractice Due to Failure to Diagnose

by DeFrancisco & Falgiatano

In New York, in any case alleging medical malpractice, the burden of proof moves from the plaintiff to the defendant and then back to the plaintiff. Thus, if the defendant sets forth an expert affidavit refuting the allegations in the plaintiff’s bill of particulars, the plaintiff can only avoid a dismissal of the case by presenting his or her own affidavit stating the manner in which the defendant’s treatment constituted malpractice. In a recent case in which the plaintiff alleged the defendant failed to diagnose her promptly, the appellate division of the Supreme Court of New York discussed what evidence a plaintiff must produce to refute a defendant’s expert affidavit. If you sustained damages due to your doctor’s failure to diagnose you, you should meet with a trusted Rochester failure to diagnose malpractice attorney to discuss what evidence you need to hold your doctor accountable for your damages.

Facts of the Case

It is reported that the plaintiff alleged that the defendant failed to diagnose or treat her pneumonia, despite her symptoms, which caused her condition to worsen. She subsequently sued the defendant for medical malpractice. Following the completion of discovery, the defendant moved for summary judgment. The court granted the defendant’s motion, dismissing the case.

Sufficiency of Evidence

To set forth a prima facie case of liability in a medical malpractice case the plaintiff must show that the defendant breached the applicable standard of care and the breach caused the plaintiff’s injury. Then, the burden shifts to the defendant, who must prove that there was no departure from the standard of care or that any departure did not cause the plaintiff’s harm, which defendants typically do by setting forth an expert affidavit. The plaintiff will usually set forth its own expert report to refute the defendant’s proof. While conflicting expert opinions offered by the defendant and plaintiff may present issues of fact that must be resolved by a jury, expert opinions that are speculative or not supported by the evidence of record will not create a triable issue.

Published on: June 6, 2019

Court Discusses Shifting Burden of Proof in NY Hospital Malpractice Case

by DeFrancisco & Falgiatano

In any case alleging hospital malpractice, the burden of proof as to whether the defendant deviated from the standard of care and thereby caused the plaintiff harm shifts from the plaintiff to the defendant and then back to the plaintiff. Recently, a New York appellate court discussed the evidence each party must produce at each step of a hospital malpractice lawsuit, in a case in which the court ultimately held that the plaintiff’s complaint was wrongfully dismissed. If you or a loved one were injured by hospital malpractice it is critical to retain a skilled Rochester hospital malpractice attorney to assist you in proving that the hospital that caused your harm should be held accountable for your damages.

Facts of the Case

It is alleged that the plaintiff’s decedent underwent a surgical procedure in 2009, in which an arteriovenous fistula was created in the decedent’s left arm to be used as an access site for dialysis treatments. Approximately one year later, a nurse noticed that the fistula appeared infected during a dialysis treatment, and the attending nephrologist directed that the decedent be transferred to the defendant hospital’s emergency room for evaluation. The decedent was evaluated by a doctor at the defendant hospital and released and cleared for dialysis. Subsequently, the decedent underwent two additional dialysis treatments without incident.

Published on: May 29, 2019

Court Discusses Privilege Protecting Quality Assurance Review Meetings in New York Obstetric Malpractice Case

by DeFrancisco & Falgiatano

Generally, a party alleging obstetric malpractice is entitled to the disclosure of any facts and information that is necessary and material to pursue a lawsuit. While the policy typically favors liberal discovery, there are some privileges that provide exceptions to the general rule. For example, Education Law § 6537(3) protects certain information produced by a hospital performing a medical malpractice or quality assurance review. Recently, a New York appellate court analyzed the discrete issue of whether a defendant in an obstetric malpractice lawsuit can be compelled to testify regarding statements made by another defendant in a meeting protected by § 6537(3). If your child suffered injuries at birth because of insufficient obstetric care, it is essential to engage a seasoned Rochester obstetric malpractice attorney regarding the care that led to your child’s harm and what evidence you may be able to obtain to support your claim.

Testimony Regarding the Plaintiff’s Care

It is alleged that the plaintiff mother was admitted to the defendant hospital for induction of labor. The plaintiff infant was delivered via an emergency cesarean section later the same day. The plaintiffs allege that due to obstetric malpractice during the course of labor and delivery the plaintiff infant suffered permanent and severe injuries, including brain damage. The plaintiffs brought an obstetric malpractice lawsuit against the defendant nurse, defendant doctor, and defendant hospital.

Reportedly, during the deposition of the defendant nurse, the plaintiffs’ attorney questioned the defendant nurse regarding what the defendant doctor stated during the subsequent quality assurance meeting to review the events that transpired during the plaintiff infant’s birth. The defendants’ attorney objected to the question on the grounds that the information was protected by Education Law § 6537(3). The plaintiffs then filed a motion to compel the defendant nurse to testify regarding the meeting.
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Published on: May 23, 2019

New York Court Discusses Proof Needed to Establish a Doctor-Patient Relationship

by DeFrancisco & Falgiatano

There are several elements a person harmed by medical malpractice must prove to recover damages from the care provider that caused his or her harm. First, and perhaps most importantly, the injured party must show that he or she was a patient of the doctor that rendered the inadequate care. While in most cases it is easy to establish a doctor-patient relationship, in some cases, it is not immediately clear whether a doctor-patient relationship exists. The Supreme Court of New York recently analyzed whether a plaintiff sufficiently established a doctor-patient relationship in a case where the defendant doctor owned the orthopedic practice where the plaintiff was treated but did not provide direct care to the plaintiff. If you or a loved one suffered harm due to inadequate orthopedic care you should meet with a trusted Rochester orthopedic malpractice attorney regarding what damages, you may be able to recover from the parties that caused your harm.

Facts Regarding the Plaintiff’s Treatment

It is alleged that the minor plaintiff fell off of his bicycle and broke his left arm in June 2015. The plaintiff’s mother took him to the emergency room of a nearby hospital following his fall. The hospital staff did not place a cast on the plaintiff’s arm but provided him with a sling and directed his mother to take him to an orthopedic specialist as soon as possible. On July 1, 2015, the plaintiff’s mother took the plaintiff to the defendant orthopedic practice which was owned by the defendant doctor.