Articles Posted in Failure to Diagnose

There are basic elements that each party must meet in a medical malpractice case to show that judgment should be entered in their favor. In other words, the plaintiff must show harm caused by the defendant’s departure from the applicable standard of care. If the plaintiff meets this burden, the defendant must then establish that he or she complied with the standard of care or that any departure did not cause the plaintiff’s alleged harm. If the defendant offers sufficient proof that judgment should be granted in his or her favor, the burden shifts back to the plaintiff to show why his or her claims against the defendant should not be dismissed. Recently, in a New York appellate case in which the plaintiff asserted that she was harmed by a radiologist’s failure to observe her fractures, the court discussed what constitutes sufficient evidence to defeat a defendant’s motion for summary judgment.  If you suffered harm due to a mistake by a radiologist, you should meet with a dedicated Rochester radiology malpractice attorney to assess what you must prove to establish liability.

Facts Regarding the Plaintiff’s Treatment

The plaintiff visited the defendant radiologist with complaints of a swollen right heel and ankle. She underwent an x-ray, which the defendant interpreted as showing swelling but no acute dislocation or fracture. The plaintiff’s swelling failed to subside, however, and she underwent a second x-ray approximately one month later, which revealed multiple fractures. The plaintiff then underwent surgery to repair her fractures. She subsequently filed a medical malpractice claim against the defendant, arguing that the defendant’s failure to accurately diagnose her fractures caused her harm. The defendant filed a motion for summary judgment. The trial court denied the motion, and the defendant appealed.

Evidence Sufficient to Defeat a Motion for Summary Judgment

On appeal, the court stated that a defendant who files a motion for summary judgment in a medical malpractice case must establish either that he or she did not deviate from the standard of care or that the departure did not cause the plaintiff’s harm. If the defendant meets this burden, the plaintiff must offer evidence in rebuttal, but only regarding the elements for which the defendant offered sufficient proof.

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A delay in receiving an accurate diagnosis can cause irreparable harm, but how long of a delay is sufficient to constitute malpractice is typically within the purview of the jury. If the jury issues a defense verdict that is contrary to the evidence of record in a delayed diagnosis case, the plaintiff can petition the court for a new trial, but the courts will not overturn a jury’s ruling unless it is clearly warranted under the law. In a recent case decided by a court in the Appellate Division of the Supreme Court of New York, the standards for granting a motion for a new trial were thoroughly explained. If you sustained damages due to a delayed diagnosis, it is wise to speak with a seasoned Rochester misdiagnosis attorney regarding your options for pursuing recourse for your harm.

Facts Regarding the Plaintiff’s Treatment

It is alleged that the plaintiff was at a music festival with her husband when she became gravely ill. She was taken by ambulance to a nearby hospital where it was determined that she had critically low sodium levels, after which she was administered saline. Approximately six hours after she arrived at the hospital, she was deemed unresponsive, and three hours after that, she suffered a seizure. The attending physicians at the hospital subsequently ordered a neurological consultation with the defendant doctor’s medical group. The order did not indicate that there was an urgent need for the consultation.

Reportedly, the following day, the plaintiff underwent a neurological consult with a nurse practitioner. The defendant neurologist reviewed the nurse practitioner’s report and developed a differential diagnosis in which the defendant doctor concluded that the patient had many symptoms of central pontine myelinolysis. The following day, however, an MRI revealed that the plaintiff sustained a lumbar fracture and was suffering from cauda equina syndrome, which is a rare condition that, if left untreated, can result in permanent loss of function from the waist down. The plaintiff underwent surgery three days later.

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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.

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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.

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In many cases in which a plaintiff alleges he or she suffered harm due to a delayed diagnosis, whether a defendant is found liable for medical malpractice hinges on the testimony of each party’s expert witness. In most cases, a court will not disturb a jury’s verdict, unless the evidence is overwhelmingly in one party’s favor.

Recently, a court in the appellate division of the Supreme Court of New York affirmed a jury verdict in favor of the defendants, finding the evidence presented at trial was not clearly in favor of the plaintiff. If you suffered harm due to a failure to diagnose your injury or illness in a timely manner, you should consult a seasoned Rochester medical malpractice attorney regarding your options for pursuing compensation.

Facts Regarding the Plaintiff’s Care

Reportedly, the plaintiff fell, hit his head and lost consciousness on December 22, 2013. He visited his primary care doctor on December 26, 2014, and February 3, 2014, and was treated by a nurse practitioner. Then, a month and a half after his fall, the plaintiff went to the emergency department where he reported a continuing headache and double vision since his fall. He underwent diagnostic imaging which revealed a subdural hematoma. The plaintiff had surgery to remedy the hematoma. The surgery was a success, but the plaintiff suffered brain damage that was permanent.

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Like with many other diseases, early diagnosis and treatment of multiple sclerosis (MS) can reduce the disease’s activity and could delay the onset of complete disability. If you were given a delayed diagnosis of MS or any other chronic disease, let our experienced Rochester medical malpractice attorneys help. We will closely examine the facts of your case and determine any legal recourse you may have for your injuries and related losses.

Multiple Sclerosis

MS is a potentially disabling autoimmune disease that attacks the central nervous system. Specifically, MS is a disorder in which the body’s own immune system attacks the fatty material that surrounds the nerve fibers, causing damage in the process. The damage can take place in the optic nerve, brain and spinal cord preventing the body’s nerve fibers from sending messages correctly and resulting in a variety of symptoms – some may be permanently disabled and lose the ability to walk while others may experience long periods of remised without any new symptoms. There is no cure for MS, although treatments can help manage symptoms.