Articles Posted in Lack of Informed Consent

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While most treatments and procedures are ultimately beneficial to patients, they also carry some degree of risk. As such, doctors must advise patients of the benefits and potential harm that could arise from a proposed plan of treatment, as well as any available alternatives, before providing the suggested care. If a doctor fails to do so and the patient suffers harm as a result, it may constitute grounds for a lack of informed consent claim. Recently, a New York court issued an opinion discussing what a plaintiff must prove to demonstrate liability for the failure to obtain informed consent in an oncology malpractice case. If you suffered losses due to a negligent doctor, it is prudent to speak to a skilled Rochester medical malpractice lawyer as soon as possible.

The Plaintiff’s Claims

It is reported that the plaintiff underwent a total hysterectomy and bilateral salpingo-oophorectomy, which was conducted by the defendant gynecologic oncologist. Following the surgery, the plaintiff filed a medical malpractice lawsuit against the defendant, arguing in part that the surgery was unnecessary, was improperly performed, and that the defendant failed to obtain her informed consent. The defendant moved for summary judgment. The trial court granted the motion, after which the plaintiff appealed.

Establishing Liability for the Failure to Obtain Informed Consent

Under New York law, to establish medical malpractice based on a lack of informed consent, a plaintiff must show that the defendant failed to disclose the reasonable alternatives to a treatment in question and failed to explain the foreseeable risks associated with a treatment, that a reasonable doctor working in the same specialty would have disclosed in a similar situation. The plaintiff must also demonstrate that a reasonable patient in the same situation would not have undergone the treatment in question if he or she had been fully apprised of the risks and alternatives. Finally, the plaintiff must prove that the lack of informed consent proximately caused the harm suffered. Continue reading

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It is well-established that in medical malpractice cases in New York, a defendant may obtain a ruling in its favor prior to trial if it establishes a prima facie showing that it is entitled to judgment as a matter of law. Even if a defendant meets its burden of proof, however, a plaintiff may be able to avoid a dismissal of his or her claims against the defendant, if the plaintiff demonstrates that an issue of fact remains that must be resolved via trial. A plaintiff cannot defeat a defendant’s motion for dismissal via summary judgment by introducing a new theory of liability, however, as demonstrated in a recent New York medical malpractice case. If you were injured by incompetent medical care, it is advisable to consult a seasoned Rochester medical malpractice attorney to discuss what evidence you must produce to obtain a favorable outcome.

Facts Regarding the Case

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant, alleging claims of lack of informed consent and negligence. The defendant filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims. The court denied the motion, and the defendant appealed.

Defeating a Defendant’s Motion for Summary Judgment in a Medical Malpractice Case

On appeal, the court reiterated the standard for determining whether a plaintiff’s medical malpractice claim should be dismissed under New York law. Specifically, the court stated that a defendant seeking dismissal via summary judgment in a medical malpractice action must set forth a prima facie showing that he or she either did not depart from the accepted practice of medicine or that any departure from the accepted practice did not cause the plaintiff’s harm. The court further explained that dismissal via summary judgment is not appropriate in cases in which the parties produce conflicting expert reports.

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It is the well-established law in New York that a plaintiff only gets one bite of the theoretical apple. In other words, a plaintiff cannot seek the same damages or litigate the same claims multiple times. Not only does this prevent a plaintiff from seeking to relitigate claims following a final judgment, but it also may prevent a plaintiff from pursuing multiple concurrent claims for the same damages against the same parties. This was discussed in a recent New York case in which the court assessed whether to stay a plaintiff’s state court medical malpractice claims pending resolution of her federal court malpractice claims. If you suffered harm due to negligent medical care, it is advisable to contact a dedicated Rochester medical malpractice attorney to discuss your options for seeking recourse.

Facts of the Case

It is alleged that the plaintiff underwent a surgical procedure that was performed by the defendant. She subsequently filed a lawsuit in the United States District Court for the Southern District of New York against the defendant asserting numerous claims, including intentional torts and medical malpractice, and alleged that the defendant caused her to suffer scars and other permanent harm, and performed the procedure without her consent. The defendant then filed a motion to stay the proceedings due to the fact that the plaintiff filed an action in the Supreme Court of the State of New York against the defendant, arising out of the same set of facts and asserting the same claims. The plaintiff opposed the motion.

Colorado River Abstention

Pursuant to the Colorado River Abstention Doctrine (the Doctrine), in cases in which there are concurrent actions in state and federal court that involved the same parties and the same underlying issues, the court can issue a stay as to one of the proceedings to avoid piecemeal litigation. The court explained that the Doctrine should only be applied in instances involving the contemporaneous exercise of concurrent jurisdictions. As such, the court must find the proceedings are parallel to issue a stay.

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Medical malpractice claims do not only arise out of improperly performed procedures or a delay in diagnosis or treating an illness. Rather, a patient can seek damages from a physician if the patient is harmed by the physician’s failure to obtain the patient’s informed consent prior to providing treatment. In a recent case decided by a court in the Appellate Division of the Supreme Court of New York, the standards for determining whether a practitioner deviated from the standard of care in an informed consent claim were discussed.  If you sustained damages due to your doctor’s failure to advise you of the risks of a procedure or treatment, you should confer with a trusted Rochester medical malpractice attorney regarding what redress may be available for your harm.

Facts and Procedural Background of the Case

It is reported that the plaintiff, who was suffering from prostate cancer, sought treatment from the defendant oncologist. The defendant treated and counseled the plaintiff. The plaintiff subsequently suffered debilitating side effects from the treatment that left him permanently disabled. He filed a medical malpractice claim against the defendant oncologist and defendant hospital, alleging that the defendant oncologist deviated from the standard of care in administering the treatment and that the defendant oncologist failed to obtain the plaintiff’s informed consent prior to the treatment. Following a trial, the jury found in favor of the defendants. The plaintiff then filed a motion to have the verdict set aside as against the weight of the evidence.

Proving Deviation from the Standard of Care in Lack of Informed Consent Claims

The main issues on appeal were whether the court erred in precluding portions of the plaintiff’s expert’s testimony at trial and whether the plaintiff’s expert testimony was sufficient to establish that the defendant oncologist deviated from the standard of care. Ultimately, the court found that the evidence supported the jury’s findings in favor of the defendant and denied the plaintiff’s motion. Specifically, the court ruled that the defendant oncologist did not depart from the standard of care or fail to obtain the plaintiff’s informed consent prior to treatment.

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