Failure to Diagnose

Published on: May 15, 2022

New York Court Explains When Medical Malpractice Becomes a Constitutional Violation

Typically, victims of medical negligence will pursue medical malpractice claims against the providers that caused their harm. In certain situations, though, incompetent medical care may give rise to a constitutional violation claim. Recently, a New York court issued an opinion differentiating between the two causes of action in a matter in which the plaintiff sought compensation following negligent treatment of a mental health issue. If you suffered harm due to delayed medical care, you have the right to seek damages, and you should contact a Rochester medical malpractice attorney to discuss your possible claims.

Factual Background of the Case

It is reported that the plaintiff was confined to a facility owned and operated by the state. While there, he sought medical care due to mental health issues, including depression and suicidal ideation. He was examined and released. He subsequently attempted to end his life by suicide. He survived and filed a lawsuit against the defendants, and employees of the facility, alleging they violated his constitutional rights by failing to provide him with adequate medical care. The defendants moved for summary judgment, and the case was referred to a magistrate. The magistrate filed a report and recommendation that the court grant the motion.

When Medical Malpractice Becomes a Constitutional Violation

The court declined to adopt the magistrate’s reasoning and dismiss the plaintiff’s claims. The court explained that there are both subjective and subjective requirements to succeed on constitutional claims arising out of mental health concerns. First, the danger presented by the defendant’s alleged deliberate indifference must be adequately serious from an objective perspective. Second, the defendant must have acted with deliberate indifference to that need. In other words, they must have subjectively failed to address the danger.

In the subject case, the court found that there was a triable issue of fact as to whether the objective portion of the plaintiff’s claim could be satisfied. In other words, whether the plaintiff’s propensity to self-harm or attempt suicide constituted a sufficiently serious mental health need.

Further, the court explained that upon viewing the facts in a light that is most favorable to the plaintiff as the non-moving party, a genuine issue of material fact existed as to the subjective prong as well. In other words, whether the defendants were aware of and disregarded the excessive risks to the plaintiff’s mental health and safety. Based on the foregoing, the court declined to grant the defendants’ motion for summary judgment. Continue reading

Published on: November 28, 2021

New York Court Discusses Evidence Admissible in Medical Malpractice Matters

by DeFrancisco & Falgiatano

Breast cancer is a devastating illness that kills thousands of women each year. The majority of people who develop breast cancer do not have a familial history of the disease. Some patients, though, carry a gene mutation that creates a significantly high risk of not only developing breast cancer but also ovarian cancer. As such, doctors will often recommend that a patient who was diagnosed with breast cancer undergo genetic testing. As evidenced in a recent New York ruling, the failure to recommend such testing may constitute medical malpractice. If you sustained damages due to a doctor’s mismanagement of your breast cancer, it is smart to contact a Rochester medical malpractice lawyer to discuss your options for seeking compensation.

The Facts of the Case

It is reported that the decedent was diagnosed with breast cancer in August 2002, after which she sought treatment from the defendant oncologist. The decedent was subsequently diagnosed with ovarian cancer in July 2007 and passed away in September 2007. It is alleged that the decedent’s only sibling underwent genetic testing in January 2008 and was found to have a gene mutation that significantly increased her risk of ovarian cancer.

Allegedly, the plaintiff then filed a medical malpractice lawsuit against the defendant, arguing that he violated good medical practice by neglecting to appropriately advise the decedent to obtain genetic counseling, which may have revealed that she inherited the gene mutation. Continue reading

Published on: October 12, 2021

New York Court Explains Grounds for Setting Aside a Jury Verdict

by DeFrancisco & Falgiatano

Most medical malpractice cases resolve before they reach the trial stage. If they do proceed to trial, however, the parties will typically ask a jury to assess liability and damages. In theory, juries should assess the evidence presented at trial and make a determination based on that evidence, but they do not always rule properly. Fortunately, parties who believe a jury issued a verdict that goes against the weight of the evidence have options for seeking justice. Recently, a New York court explained when setting aside a verdict is appropriate in a medical malpractice case in which the plaintiff argued the jury ruled improperly. If you sustained damages because of negligent medical care, it is smart to speak to a Rochester medical malpractice lawyer to determine what proof you must offer to recover damages.

The History of the Case

It is alleged that the decedent visited the defendant’s doctor with complaints of a cough and chest pain. The defendant prescribed a chest x-ray, which was normal, and advised the decedent he did not appear to be suffering from a chronic or acute condition. A different doctor subsequently diagnosed the decedent with lung cancer. The decedent ultimately succumbed to the illness. The plaintiff, the administrator of the decedent’s estate, filed a medical malpractice lawsuit against the defendant, alleging he violated the standard of care by failing to order a CT scan. The case proceeded to trial, and the jury found in favor of the defendant. The plaintiff then appealed.

Grounds for Setting Aside a Jury Verdict

On appeal, the plaintiff argued that the verdict should be set aside because it was contrary to the weight of the evidence. The court disagreed and denied her motion. The appellate court explained that a jury verdict in favor of a defendant should not be set aside as contrary to the weight of the evidence unless the evidence weighs so heavily in favor of the plaintiff that the jury could not have arrived at the verdict based on any fair interpretation of the evidence. Continue reading

Published on: March 19, 2021

New York Court Discusses the Discovery Rule in Medical Malpractice Claims

by DeFrancisco & Falgiatano

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

Published on: February 17, 2021

New York Court Dismisses Wrongful Death Claim Against Hospital

by DeFrancisco & Falgiatano

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

Published on: November 10, 2020

New York Court Discusses Continuous Treatment Doctrine in Failure to Diagnose Case

by DeFrancisco & Falgiatano

A prompt and accurate diagnosis is an essential element of competent medical care. Thus, a doctor that fails to diagnose a plaintiff in a timely manner may be liable for medical malpractice. If a patient does not promptly pursue claims against a doctor, though, the right to recover damages may be waived unless an exception, such as the continuous treatment doctrine, applies. Recently, a New York court issued a ruling in which it discussed whether the continuous treatment doctrine protected the plaintiff’s claims from being dismissed as untimely. If you sustained injuries due to a delayed or absent diagnosis, you might be entitled to damages and should speak to a diligent Rochester medical malpractice attorney as soon as possible.

The Plaintiff’s Injuries and Claims

It is reported that the plaintiff was admitted to the defendant medical center, where he was treated by the defendant attending physician. He was diagnosed with blood clots and deep venous thrombosis in his extremities and ultimately required above-the-knee amputations of both legs. After his amputations, the plaintiff continued to treat with the defendants for three years, undergoing physical therapy and other postoperative care.

Allegedly, the plaintiff then filed a medical malpractice lawsuit against the defendants, alleging their failure to properly diagnose and treat his conditions resulted in the need for amputations. The defendants moved for dismissal of the plaintiff’s claims, arguing they were barred by the statute of limitations. The plaintiff opposed the defendants’ motion, stating that the continuous treatment doctrine applied and, therefore, his claims were timely.

Published on: April 4, 2020

New York Court Discusses Establishing Proximate Cause in a Failure to Diagnosis Case

by DeFrancisco & Falgiatano

In any New York medical malpractice case, the plaintiff must not only establish that the defendant breached the standard of care, but also that the breach proximately caused the plaintiff’s harm. Recently, in a case filed in the United States District Court for the Southern District of New York in which the plaintiff alleged the defendant failed to diagnose the plaintiff’s decedent’s lung cancer for ten months, the court discussed what constitutes sufficient evidence to demonstrate that a delayed diagnosis caused a plaintiff’s damages. If you or someone you loved suffered harm due to a delayed diagnosis, it is in your best interest to consult a dedicated Rochester medical malpractice attorney regarding what damages you may be able to recover.

Facts Regarding the Plaintiff’s

It is alleged that the plaintiff’s decedent reported to the defendant hospital with complaints of chest pain. X-rays were taken and reviewed by the defendant physician, who noted abnormalities but took no further action. Ten months later, the defendant was admitted to the defendant hospital with complaints of weight loss, difficulty breathing, and a sore throat. Additional diagnostic tests were conducted, and the decedent was diagnosed with lung cancer. He ultimately succumbed to his illness, and the plaintiff filed a medical malpractice lawsuit against the defendants under the Federal Tort Claims Act, arguing the failure to diagnose the decedent resulted in harm. The defendants conceded that they owed a duty to the decedent and that they breached the duty by failing to diagnose the decedent’s lung cancer for ten months, but denied that it was the cause of plaintiff’s death. A bench trial was held, after which the court found in favor of the plaintiff.

Proving Proximate Cause in a Failure to Diagnose Case

To prove proximate causation, a plaintiff must show that the defendant’s departure from the standard of care substantially contributed to the plaintiff’s injuries. In cases in which the plaintiff alleges that the defendant departed from the standard of care by delaying in diagnosing a patient may establish proximate cause by showing that the defendant diminished the patient’s chance of a better outcome, or that the defendant increased the patient’s injury.

Published on: December 26, 2019

Court Discusses Evidence Needed to Defeat Summary Judgment in a New York Medical Malpractice Case

by DeFrancisco & Falgiatano

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.

Published on: December 24, 2019

New York Court Discusses Standard for Granting a New Trial in a Delayed Diagnosis Case

by DeFrancisco & Falgiatano

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.

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.