Articles Posted in Failure to Diagnose

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asthmaIf you or someone close to you has suffered harm due to malpractice relating to asthma, we can help. At DeFrancisco & Falgiatano Personal Injury Lawyers, our Rochester medical malpractice attorneys understand how to navigate these complex cases. Whether your injury was a result of a misdiagnosis or inadequate treatment, we will make every effort to help you secure the compensation you need to deal with your harm.

According to the Centers for Disease Control and Prevention, there were 18.4 million people with asthma in the United States in 2015. This means that 7.6 percent of all adults and 8.4 percent of all children in the country had the condition. Asthma is a condition in which a person’s airways narrow and swell and produce extra mucus. This can hinder a person’s ability to breathe and trigger coughing, wheezing, and shortness of breath. Shortness of breath can lead to life-threatening asthma attacks. You should know that asthma is a common inflammatory lung disease, and while it cannot be cured, it can be treated.

Unfortunately, asthma misdiagnosis or poor treatment often cause injuries to patients in New York and across the United States. An asthma misdiagnosis can happen in one of two ways:  diagnosing a patient with the condition when he or she does not have it, or failing to diagnose a patient with asthma when he or she does have it. The consequences of a misdiagnosis can be very serious. Patients may undergo treatment for a condition they do not have and end up going through unnecessary treatment and needlessly suffering adverse side effects. When asthma is not properly diagnosed, the patient fails to treat the symptoms, and his or her condition could get worse.

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AnxietyNew York medical malpractice lawsuits are subject to the same civil procedure rules as other litigation in New York courts. These rules guide all phases of the litigation and are comprised of deadlines, requests, and filings made to the court. Sometimes lawsuits are dismissed because of procedural lapses, instead of being dismissed on the merits of the malpractice claim. In one case, the New York Appellate Division, Fourth Department ruled on whether the plaintiff’s lawsuit should have been dismissed pursuant to New York Civil Practice Law and Rules, Rule 3404.

The facts of the case are as follows. A patient was admitted to a Niagara Falls hospital’s psychiatric wing. While under the psychiatrist’s care, the patient leaped from the top of the hospital’s roof and suffered serious injuries. The guardian of the patient filed a psychiatric malpractice lawsuit against the patient’s psychiatrist. The pre-trial litigation phase of discovery commenced, and the plaintiff filed a note of issue. In response, the defendant moved to vacate the note of issue because discovery was incomplete, the defendant alleged. The trial court granted the defendant’s motion and ordered additional discovery.

The plaintiff did not file a new note of issue for another year. Thus, the defendant moved to dismiss the psychiatric malpractice claim pursuant to Rule 3404. This procedural rule allows for the judicial dismissal of inactive cases under certain prescribed situations. The plaintiff opposed the motion, arguing that 3404 did not apply when the note of issue has been vacated. The court denied the defendant’s motion and noted that this very issue was subject to inconsistent rulings at the trial court level.

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