Articles Posted in Pediatric Malpractice

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In many instances, a doctor’s failure to conduct the tests needed to provide a patient with an accurate diagnosis constitutes medical malpractice. In some cases, however, even if a doctor’s diagnosis is delayed, the doctor may not be held liable for any harm suffered by the patient if the applicable standard of care does not require a doctor to consider all possible diagnoses. This was demonstrated in a recent New York pediatric malpractice case in which the court dismissed the plaintiff’s claims due to the plaintiff’s inability to show that the failure to diagnosis a rare condition constituted a breach of the standard of care. If your child suffered harm because of a delayed diagnosis, it is in your best interest to speak to a trusted Rochester pediatric malpractice attorney to assess what damages you may be owed.

The Child’s Alleged Harm

It is alleged that the defendant pediatrician examined the plaintiff-child in early November 2008 for an infection. The defendant prescribed the plaintiff-child antibiotics. The defendant saw the plaintiff-child again one day later, and five days later, when his condition seemed to be improving. Six days after the initial visit, however, the plaintiff-mother called the defendant and reported that the plaintiff-child had a fever, and had recently undergone dental work, after which the defendant advised the plaintiff-mother to take the plaintiff-child to the emergency room.

Reportedly, the plaintiff-child was diagnosed with bacterial endocarditis, which required surgery to preserve his mitral valve function. The plaintiffs then filed a medical malpractice lawsuit against the defendant, alleging the plaintiff’s condition should have been diagnosed via an echocardiogram, but that one was not performed until ten days after the plaintiff’s initial visit. Following discovery, the defendant filed a motion to dismiss, which the court ultimately granted. The plaintiff then appealed.

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In most medical malpractice cases, the parties will produce expert affirmations in support of their claims or defenses. It is not sufficient to merely produce an expert affirmation, however. Rather, the affirmation’s weight and credibility will be assessed by whether it meets certain requirements. This was demonstrated in a recent case before a court in the Appellate Division of the Supreme Court of New York, in which the court affirmed the dismissal of a pediatric malpractice case due to the insufficiencies of the plaintiff’s expert affirmation. If your child suffered harm due to inadequate care provided by a pediatrician, it is prudent to consult a skilled Rochester pediatric malpractice attorney regarding what evidence you must produce to recover compensation.

Factual Background

It is alleged that the minor plaintiff was treated by the defendant pediatricians and at the defendant hospital in December 2017. The defendants failed to diagnose her with viral encephalitis in a timely manner, which caused her to suffer permanent impairments that required her to need care and assistance for the remainder of her life. Thus, the minor child and her parents, filed a medical malpractice lawsuit against the defendants. The defendants each filed motions for summary judgment, asking the court to dismiss the plaintiffs’ claims against them. The court granted the respective motions, and the plaintiffs appealed. Upon review, the appellate court affirmed the trial court ruling.

Sufficiency of an Expert Affidavit in a Medical Malpractice Case

In the subject case, the defendant hospital established it’s right to judgment in its favor as a matter of law through the affirmation of its expert. Specifically, the expert reviewed the hospital’s records and the depositions taken in the case and found that the hospital’s doctors’ treatment of the minor plaintiff complied with the accepted standard of care and that regardless, any departure did not cause the minor plaintiff’s harm.

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A delayed diagnosis can cause irreparable harm, but proving a delay in providing an accurate diagnosis caused a person’s damages can be challenging and will typically require the testimony of one or more experts.  The pitfalls of failing to obtain a qualified expert were recently demonstrated in a pediatric malpractice case, in which the court affirmed the dismissal of the plaintiff’s case due to an insufficient expert affidavit. If your child suffered harm due to negligent care provided in a hospital, it is prudent to speak with a capable Rochester pediatric malpractice attorney regarding your potential claims.

Factual and Procedural Background

It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant hospital, arguing that the hospital’s delayed diagnosis caused the plaintiff to suffer harm. The plaintiff’s precise injuries were not set forth in the case. The defendant filed a motion for summary judgment, which the court granted, dismissing the plaintiff’s case. The plaintiff appealed, but on appeal, the appellate court affirmed the trial court’s decision.

Sufficiency of a Plaintiff’s Expert Affidavit

On appeal, the court stated that the defendant set forth a prima facie case showing that it was entitled to judgment as a matter of law. Specifically, the defendant submitted an expert affidavit from a pediatric neurologist that opined that the defendant did not depart from the accepted and good practice of medicine and that any departure did not cause the plaintiff’s alleged harm. The affidavit stated that as the plaintiff had only suffered one seizure due to a fever, imaging of the plaintiff’s brain was not indicated when he visited the emergency room of the defendant hospital. Further, the affidavit opined that although the plaintiff suffered from an arterial venous malformation (AVM), the AVM was not the cause of the plaintiff’s harm.

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