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Articles Posted in Failure to Diagnose

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 32ndweek 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.

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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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Patients rely on doctors to provide adequate care, which includes properly diagnosing any injury or illness. If a doctor fails to diagnose a medical issue in a timely manner it can result in significant harm or even death and may be grounds for a medical malpractice action. In weighing whether you have sufficiently proven your treating physician’s failure to diagnose constitutes malpractice the court will assess the evidence produced by you and your physician. If the court negligently overlooks evidence of malpractice, such as an expert affidavit, it can result in an improper dismissal of your claim, as illustrated in a recent case decided by a New York appellate court.  If you or a loved one suffered harm due to a doctor’s failure to provide an accurate diagnosis, you should meet with a seasoned Rochester medical malpractice lawyer regarding the facts of your case and what you need to prove to recover damages.

Facts Regarding the Plaintiff’s Treatment

Reportedly, the plaintiff’s decedent underwent a gastric bypass, after which she treated with the defendant gastroenterologist at the defendant gastroenterology practice. She died shortly thereafter from a gastrointestinal hemorrhage. The plaintiff then filed a malpractice lawsuit against the defendant, alleging that the defendant failed to properly diagnose and treat the decedent with an anastomotic leak, resulting in her death. Following discovery, the defendants moved for summary judgment, which the court granted as to the defendant practice. The plaintiff filed a motion for reargument which the court granted. Upon reargument, the court vacated the order granting summary judgment, after which the defendant appealed.

Conflicting Expert Reports

Under New York law, whether to grant a motion for reargument is within the discretion of the court that decided the original motion. A court may choose to grant reargument where a party produces evidence the court overlooked or misunderstood pertinent facts and mistakenly decided the prior ruling. In the subject case, the court found that the trial court properly chose to grant reargument due to the fact it had previously overlooked an expert affidavit that the plaintiff submitted in support of his opposition to the motion for summary judgment, and therefore, incorrectly ruled the plaintiff failed to raise an issue of fact.

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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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In cases where the issues presented are a beyond the scope of understanding of the average person, one or both parties will introduce experts to offer opinions on disputed facts and theories of liability. For example, the vast majority of medical malpractice cases require one or more experts to opine that the medical provider in question breached the standard of care and the breach resulted in the subsequent harm.

Recently, in a case applying New York law, the District Court for the Northern District of New York held that the expert report provided by the plaintiff in a medical malpractice case was sufficient to allow the case to proceed, despite the defendants’ arguments to the contrary. If you or a loved one suffered harm due to inadequate care or a missed diagnosis, it is in your best interest to meet with an experienced Rochester medical malpractice attorney to assist you in your pursuit of damages from the negligent providers.

Facts Surrounding the Patient’s Care and Subsequent Death

Reportedly, the patient complained of chest pains and lost consciousness, after which he was transported to the defendant hospital’s emergency department. The defendant doctor, who worked in the emergency department, examined the patient physically, monitored his vital signs and ordered various tests. The defendant doctor ultimately diagnosed the patient with vasovagal syncope, dehydration, reactive airway disease and wheezing. He prescribed the patient medication and saline and discharged the patient. Additionally, the defendant doctor referred the patient to a clinic for a follow-up appointment where he would be re-evaluated and directed him to go to the follow-up appointment two to four days.

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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.

Endometriosis should be promptly diagnosed and treated in order to prevent long-term harm. If you or a loved one suffered an injury or a worsening of condition due to a misdiagnosis of endometriosis, you may have the right to recover payment for your harm. Our trusted Rochester medical misdiagnosis attorneys will review the specifics surrounding your injury to see if you have a valid malpractice claim.


Endometriosis is a gynecological disease where the normal endometrial lining of the uterus travels up the fallopian tube and ends up outside the uterus, where it implants and starts to grow. The endometrial tissue can grow into the ovaries, bowel or other tissue that lines the female pelvis. Put another way, endometriosis is a disorder in which tissue that typically lines the inside of the uterus grows outside of the uterus. According to the Mayo Clinic, endometriosis affects more than 200,000 women every year.

Failing to Diagnose Endometriosis

The condition is extremely painful for women and often gets misdiagnosed in women as menstrual pain and cramping. While the symptoms are similar, they happen on a more intense scale. The cramps, bleeding and pelvic pain is far more severe than menstrual pain. While people may consider endometriosis a minor condition, the reality is it can have devastating and long-term consequences for a woman’s health if it is not diagnosed and treated in a timely manner.

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If you suffered preventable harm due to a late prostrate cancer diagnosis or because of a delayed prostrate cancer diagnosis, you need to call a knowledge Rochester medical malpractice lawyer who can help you determine whether malpractice occurred. We have held countless negligent doctors and hospitals accountable for medical malpractice when these parties have failed to screen and treat patients for cancer properly.

Prostrate Cancer

Prostrate cancer is cancer that occurs in the prostate – a small gland surrounding the neck of the bladder in men that makes the seminal fluid that transports the sperm. After skin cancer, prostrate cancer is the most common cancer among American men. It affects nearly 200,000 men every year across the country. For this reason, all men should be offered prostrate cancer screening by their primary care physicians and/or urologists starting at the age of 50. In cases where a patient is at an increased risk for prostrate cancer, either because of a family history of the disease or their ethnic background, prostrate screening should begin even earlier.

Approximately 2 million people every year suffer from a concussion across the United States. If not properly diagnosed or treated, a concussion can leave a person with permanent brain damage. If this has happened to you or someone you love, you need to reach out to a diligent Rochester misdiagnosis attorney who can be helpful to securing compensation. With extensive experience, we understand how to guide you through complex medical malpractice claims while protecting your rights every step of the way.

Defining a Concussion

A concussion is a mild traumatic brain injury that results in a loss of consciousness and a bruised brain. It typically occurs after a blow to the head but can also happen from having one’s head being violently shaken. Concussions are quite common and they can vary in severity ranging from mild to catastrophic. The symptoms of a concussion may not be immediately apparent but they can include headaches, difficulty concentrating, and impairment of memory, judgment, balance and/or coordination. Sadly, medical professionals sometimes misdiagnose a concussion by assuming it is less serious than it really is or by missing it altogether.

Misdiagnosis or Failure to Diagnose a Concussion

Doctors have an obligation to conduct tests to confirm if a patient is, in fact, suffering from a concussion. If it is discovered that a concussion did occur, the doctor should begin treatment immediately to limit the potential damage. Failure to treat a concussion promptly could lead to long-term cognitive, physical and emotional damage.

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Unfortunately, cervical cancer is a common diagnosis among women. A doctor’s failure to diagnose or their misdiagnosis of cervical cancer can have catastrophic health effects for a patient. If this has happened to you or your loved one, our Rochester diagnosis error attorneys can help you recover damages for your harm. With years of experience representing victims of medical malpractice, you can rest assured we know how to handle complicated misdiagnosis claims. 

Cervical Cancer Statistics

Cervical cancer takes place when abnormal cells on the cervix grow out of control. The cervix is the lower part of the uterus that opens into the vagina. Different strains of the human papillomavirus, a sexually transmitted disease, play a part in causing most cases of cervical cancer. Cervical cancer is one of most common types of cancer among women in the world. In the U.S. alone, there are 13,000 new cases of cervical cancer diagnosed every year, leading to 4,000 deaths, according to the National Cancer Institute.

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