Medical Malpractice

New York Court Discusses Grounds For Vacating an Order Dismissing a Medical Malpractice Case

Published on: May 28, 2020 | By DeFrancisco & Falgiatano

In many medical malpractice cases, after discovery is complete, the defendant will file a motion for summary judgment asking the court to dismiss the plaintiff’s claims. In any case in which a defendant files a motion for summary judgment, it is critical for the plaintiff to respond to the motion in a prompt manner, and if the plaintiff fails to do so, his or her claims may be dismissed, regardless of their merit. In some cases, though, a plaintiff may be able to demonstrate that a failure to respond is excusable and avoid dismissal, as shown in a recent New York appellate case. If you suffered injuries because of negligent medical care, it is in your best interest to speak to a capable Rochester medical malpractice attorney regarding what claims you may be able to assert to safeguard your rights.

Factual Background

It is reported that the plaintiff treated with the defendants for a recurring fainting condition. She subsequently suffered injuries due to negligent treatment, after which she filed a medical malpractice case against the defendants. Following discovery, the defendants filed a motion for summary judgment, asking the court to dismiss the plaintiff’s claims. The plaintiff failed to file a response in time, however, and the court granted the defendant’s motion as unopposed, dismissing the plaintiff’s claim. The plaintiff then filed a motion to vacate the court’s order, which was denied, after which the plaintiff appealed.

Excusable Failure to Respond to a Motion for Summary Judgment

Under New York law, a plaintiff seeking to vacate a default in opposing a motion must demonstrate that there was a reasonable excuse for the default and that he or she has a potentially meritorious defense to the motion. In the subject case, the plaintiff argued that the failure to respond was the result of a scheduling error on behalf of her attorney, and was not intentional or the result of willful neglect, and that in consideration of the strong public policy in favor of resolving disputes on their merits, the lower court’s decision constituted an abuse of discretion.

Court Discusses Physicians’ Duties In Medical Malpractice Cases in New York

Published on: March 12, 2020 | By DeFrancisco & Falgiatano

Under New York law, a plaintiff alleging medical malpractice must establish that a treating medical provider breached a duty the provider owed the plaintiff. Specifically, the plaintiff must show that the medical provider deviated from accepted medical practice. In other words, a provider cannot be held liable for medical malpractice for failing to undertake acts not required by the standard of care. This was discussed in a recent case decided by a New York appellate court, in which the plaintiff alleged a physician that treated him during an involuntary confinement committed malpractice by failing to review his criminal history. If you suffered harm due to negligent medical care, it is prudent to seek the advice of a skillful Rochester medical malpractice attorney regarding whether you may have a viable claim.

Factual Background of the Case

It is alleged that in 1983 the plaintiff was indicted for multiple crimes, including burglary and sodomizing a child. He pleaded guilty to the burglary charge and was sentenced to eight to sixteen years imprisonment. He served thirteen years in prison, and during his imprisonment was admitted to a psychiatric hospital numerous times. Following his release from prison, he was retained in a state mental health facility for six years. After his eventual release, he filed multiple claims against the State, including medical malpractice.

Reportedly, the basis of the plaintiff’s medical malpractice claim was the assertion that his treatment arose out of the belief that he plead guilty to sodomy, even though he did not. He further alleged that the treatment he received based on this mistaken belief caused him to suffer anxiety and denied him certain privileges. The court entered a judgment in favor of the defendant following a trial. The plaintiff then appealed.

New York Court Discusses Standard of Care in Medical Malpractice Claims Alleging Lack of Informed Consent

Published on: February 22, 2020 | By DeFrancisco & Falgiatano

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.

New York Court Discusses When a Change of Venue is Appropriate in Medical Malpractice Cases

Published on: January 8, 2020 | By DeFrancisco & Falgiatano

Generally, a person injured by medical malpractice has the discretion to choose where to file a lawsuit seeking damages. If the defendant believes a lawsuit was filed in an improper county, though, the defendant can challenge the plaintiff’s selection and petition the court to move the case to another location. Recently, the Supreme Court, Appellate Division, Second Department, New York, discussed the basis for transferring a matter to another venue, in a case alleging medical malpractice against numerous defendants. If you were injured by negligent medical care, it is critical to retain a knowledgeable Rochester medical malpractice attorney to assist you in pursuing your claims in the appropriate venue.

Factual and Procedural Background

Allegedly, the plaintiffs filed a medical malpractice action in Dutchess County against numerous care providers. The chosen venue was based upon the purported location of the main office of one of the defendants. The defendants then filed motions to change the venue of the case to Tompkins County. The plaintiffs objected to the defendants’ motions, but the trial court granted the motions on the grounds that Dutchess County was not a proper county for pursuing the claims, despite the plaintiffs’ objections. The plaintiffs then appealed.

What Constitutes Proper Venue in a Medical Malpractice Case

In New York, a defendant can file a motion to change the place of a trial where the county chosen by the plaintiff is not the proper county. To successfully prove a change of venue is warranted, the defendant must not only show that the plaintiff’s chosen venue is improper but also that the venue chosen by the defendant is proper. If the defendant meets this burden, the burden then shifts to the plaintiff to show that the chosen venue is, in fact, proper.

Court Discusses Admissibility of Evidence of Prior Bad Acts in New York Medical Malpractice Cases

Published on: December 19, 2019 | By DeFrancisco & Falgiatano

Many medical providers are employees of larger medical groups. As such, patients harmed by negligent medical care often not only pursue claims against the treating physician but also against the hospital or medical group that employed the physician. Depending on the facts of the case, however, the court may decline to allow a plaintiff to proceed against a doctor and the doctor’s employer in the same case. The standards for determining whether claims against a doctor and the medical group that employed the doctor should be severed were recently set forth in a primary care malpractice case reviewed by a New York appellate court. If you were injured by negligent care rendered by a primary care physician, it is advisable to meet with a proficient Rochester medical malpractice attorney to discuss what claims you may be able to pursue.

Procedural Background of the Case

Allegedly, the defendant primary care physician engaged in inappropriate physical contact with the plaintiff during a routine physical. The plaintiff subsequently filed a lawsuit alleging medical malpractice claims against the defendant physician and the defendant medical group that employed the defendant physician. The plaintiff also asserted negligent hiring and supervision, and vicarious liability claims against the defendant medical group. The defendant physician filed a motion to sever the claim against him from the remaining claims. The court granted the motion, and the plaintiff appealed.

Severance of Claims in a Medical Malpractice Lawsuit

In New York, a court may order a severance of certain claims or may order a separate trial of any issue or claim. In the subject case, the defendant physician alleged that the claims against the defendant medical group arose out of the allegation that the defendant physician engaged in similar conduct with another patient. The defendant physician further alleged evidence of whether he previously acted inappropriately with a patient would not be admissible in a trial on the issue of whether he was liable to the plaintiff for medical malpractice.

Court Discusses Dismissal of New York Medical Malpractice Cases for Failure to Prosecute

Published on: September 24, 2019 | By DeFrancisco & Falgiatano

In most medical malpractice cases, the injured parties will try to resolve the case as swiftly as possible, so that they can attempt to repair the harm they suffered and move forward in life. In some instances, however, the injured party will delay in proceeding with his or her case, resulting in protracted litigation. In a recent case ruled upon by an New York appellate court, the court analyzed when a plaintiff’s delay in prosecuting a medical malpractice case constitutes sufficient grounds for dismissal of the action. If you suffered injuries due to medical malpractice, it is prudent to meet with a skillful Rochester medical malpractice attorney as soon as possible to discuss your harm and whether you may be able to recoup damages.

Procedural Background

It is alleged that the plaintiff filed a medical malpractice case against the defendant hospital in August 2014. Subsequently, in December 2017, the defendant filed a motion to dismiss the complaint for failure to prosecute, pursuant to the New York rules of civil procedure. Additionally, the defendant argued that the action should be dismissed because the plaintiff had not narrowed his demands regarding the witnesses affiliated with the defendant hospital that he wanted to depose, despite court orders and stipulations directing him to do so. The court granted the defendant’s motion on both grounds, and the plaintiff appealed. On appeal, the court reversed and remitted the matter to the trial court for further proceedings.

Dismissal of a Complaint

Under New York law, the courts do not have authority to dismiss an action for failure to prosecute unless the plaintiff has been served with a 90-day notice. In the subject case, it was undisputed that neither the defendant nor the trial court served the required 90-day notice upon the plaintiff. As such, the trial court lacked authority to dismiss the plaintiff’s complaint for failure to prosecute.

New York Court Discusses Medical Malpractice Claims on Behalf of an Incapacitated Person

Published on: September 16, 2019 | By DeFrancisco & Falgiatano

In many cases in which a person is harmed by primary care malpractice, he or she may be unable to pursue a claim on his or her own behalf. In such instances, a guardian can be appointed to assert the injured party’s right to seek damages. In a recent primary care malpractice case decided by a New York appellate court, the court discussed the specifics of how claims on behalf of an incapacitated person may be pursued. If you or a loved one were injured due to inadequate care rendered by a primary care physician, it is essential to meet with a knowledgeable Rochester primary care malpractice attorney to discuss your injuries and what damages you may be able to recover.

Facts Regarding the Plaintiff’s Harm and Procedural Background

It is reported that the plaintiff patient underwent a colonoscopy in May 2014, after which he collapsed. He has been in a coma since the procedure. The plaintiff wife subsequently filed a medical malpractice action against numerous parties, including the plaintiff patient’s primary care physician. The plaintiff wife sued individually and as the proposed guardian of the plaintiff patient. It is alleged that the defendant primary care physician filed a motion to dismiss, arguing that the plaintiff wife lacked standing to act on behalf of the plaintiff patient. In turn, the plaintiff wife opposed the defendant’s motion and filed an unopposed motion to be appointed as the guardian of the plaintiff patient. The court denied the plaintiff’s motion and granted the defendant’s motion, after which the plaintiff appealed.

Primary Care Malpractice Claims Involving an Incapacitated Person

On appeal, the court stated that an incapacitated person who has not been declared incompetent can file a lawsuit or be sued, similar to any other person. Further, the court noted that under the New York Rules of Civil Procedure, a guardian can be appointed at any stage of litigation. In other words, a guardian need not be appointed prior to the commencement of an action.

New York Court Discusses a Defendant’s Privilege from Disclosure in Medical Malpractice Cases

Published on: July 28, 2019 | By DeFrancisco & Falgiatano

In New York, a defendant in a medical malpractice case is protected from having to disclose certain documents by education and public health laws. There are exemptions to the general rule, however that permit a plaintiff to obtain statements pertaining to the alleged malpractice. The appellate division of the Supreme Court of New York recently addressed when the exceptions apply in a pediatric malpractice case. If your child suffered injuries because of inappropriate pediatric care, it is vital to consult a skillful Rochester pediatric malpractice attorney to discuss what compensation you may be able to recover.

Facts of the Case

Reportedly, the plaintiff’s infant son was transported from a medical center to a nearby hospital where he was placed on a ventilator. The child subsequently developed pneumothoraxes in both lungs, which ultimately caused him to suffer a severe brain injury. The plaintiff filed a pediatric malpractice lawsuit against both the medical center and the hospital. During the discovery phase of the case, the plaintiff requested that the defendant hospital produce any and all documents pertaining to the evaluation of the child’s treatment on the date of the alleged harm. The hospital objected to the request on the grounds that any responsive documents would have been created as part of the hospital’s quality assurance program, which were privileged and exempt from disclosure pursuant to New York’s Education Law and Public Health Law.

It is alleged that the plaintiff then filed a motion to compel the responsive documents, arguing that statutory exceptions to the privilege allowed her to obtain statements made throughout the quality assurance process by a doctor or other health care provider named as a defendant regarding the facts and circumstances of the treatment from which the malpractice claim arose. The trial court granted the plaintiff’s motion, after which the defendant hospital sought intervention from the appellate court.

New York Court Discusses the Law of the Case Doctrine in a Medical Malpractice Case

Published on: April 26, 2019 | By DeFrancisco & Falgiatano

In any Rochester medical malpractice case, there will likely be motions presented by either party, which the court will hear and rule upon. When the court issues a ruling on a contested matter it defines the law of the case, and absent new evidence, all parties must abide by the ruling. This rule, which is known as the law of the case doctrine, was recently discussed by a New York appellate court in a medical malpractice case in which the plaintiff sought to strike the defendant’s answer due to spoliation of evidence, despite a previous ruling on the issue. If you or a loved one suffered harm due to negligent care provided by a doctor it is essential to retain a skilled Rochester medical malpractice attorney to help you seek compensation.

Procedural Facts

Reportedly, the plaintiff, as the administrator of the decedent’s estate, filed a lawsuit against the defendant in 2014, alleging claims of medical malpractice and wrongful death arising out of the decedent’s death in 2012. The case proceeded to trial and when the jury was being selected, the plaintiff orally moved to strike the defendant’s answer and new matter and for judgment as a matter of law on the issue of liability. The basis for the plaintiff’s motion was the defendant’s purported spoliation of evidence relating to the telemetry strips used to monitor the decedent, and the failure to perform an autopsy on the decedent. The defendant opposed the motion, arguing in part that the trial court had previously denied a motion filed by the plaintiff which sought to strike the defendant’s answer due to spoliation of evidence. The court granted the plaintiff’s motion in spite of the defendant’s objection, and the defendant subsequently appealed.

Law of the Case Doctrine

First, the appellate court noted that a motion for judgment as a matter of law is premature if it is made prior to the close of the opposing party’s case. Thus, the appellate court found that the trial court erred in granting the motion. Further, the appellate court held that the trial court violated the law of the case doctrine in granting the plaintiff’s motion. The law of the case doctrine is a rule of practice, which articulates the policy that once an issue is ruled upon by a judge, it should be the end of the debate on that particular matter. Under the law of the case doctrine, an issue that has been ruled upon is foreclosed from further consideration, unless new evidence is discovered or there is a change in the law. In the subject case, the appellate court ruled that the trial court erred in ignoring the prior order regarding the spoliation issue. Thus, the appellate court reinstated the defendant’s answer.

New York Court Discusses Res Ipsa Loquitor in a Gynecologic Malpractice Case

Published on: April 18, 2019 | By DeFrancisco & Falgiatano

As gynecologic malpractice cases involve complex facts and issues that are typically beyond the understanding of the average person, most medical malpractice cases rely on experts to prove liability. In some cases, however, gynecologic malpractice is so clear that expert opinions may not be necessary. Rather, the plaintiff will rely on the evidentiary rule of res ipsa loquitor, which means the thing speaks for itself. A New York court recently discussed res ipsa loquitor in a gynecologic malpractice case and explained what is needed to prove the defendant is liable under res ipsa loquitor. If you were harmed by gynecologic malpractice you should consult an experienced Rochester gynecologic malpractice attorney as soon as possible to discuss your case and what evidence you may need to recover.

Factual Scenario

Reportedly, the plaintiff underwent a hysterectomy, which was performed by the defendants. Approximately five months after the surgery, she underwent an MRI that revealed a cystic collection in her abdomen. She then underwent a procedure to drain the collection, which revealed that it was likely there was a surgical lap pad in her abdomen. As such, the plaintiff underwent surgery to remove the lap pad that was likely left behind during her initial surgery. The plaintiff subsequently filed a medical malpractice action alleging the facts required the application of Res Ipsa Loquitor

Res Ipsa Loquitor

Res ipsa loquitor is an evidentiary rule that allows the judge or jury to infer negligence based solely on the occurrence of an unusual event. Res ipsa loquitor arises often in medical malpractice cases where it is hard to prove causation. For res ipsa loquitor to apply the plaintiff must show that what happened is not an event that typically happens without negligence, the instrumentality that caused the harm was exclusively controlled by the defendant, and the plaintiff did not contribute to his or her own harm.