Articles Posted in Surgical Malpractice

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In many medical malpractice cases, the defendant will seek to have the claims against it dismissed prior to trial. Even if a defendant demonstrates that it did not depart from the accepted practice of medicine, though, a plaintiff can avoid dismissal by producing evidence sufficient to refute the defendant’s assertions. The standard of review for determining whether to dismiss medical negligence claims in New York was recently discussed in a surgical malpractice case in which the court found sufficient factual disputes existed to proceed to trial. If you were hurt by the acts of a negligent surgeon, it is wise to talk to a dedicated Rochester surgical malpractice attorney to assess what evidence you must produce to demonstrate liability.

Procedural History

Allegedly, the defendant performed a surgical procedure on the plaintiff’s right shoulder. The plaintiff suffered complications after the surgery and ultimately needed to undergo a second procedure. He then filed a medical malpractice lawsuit against the defendant, asserting that the defendant’s negligence caused him to suffer physical and financial harm. The defendant moved to have the plaintiff’s case dismissed by summary judgment. The court denied the defendant’s motion, and the defendant appealed.

Avoiding Dismissal in Medical Malpractice Cases

In New York, a defendant doctor seeking summary judgment in a medical malpractice case has to make a prima facie showing that it did not depart from the accepted and good practice of medicine or that the plaintiff was not harmed by any alleged departure. If the defendant meets this burden, the plaintiff must then set forth evidentiary materials or facts in opposition to the defendant’s position to demonstrate the existence of an issue of fact that must be resolved via trial.

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While some people are reluctant to retain legal counsel prior to filing a medical malpractice lawsuit due to fears regarding costs, the decision to proceed pro se can have drastic consequences, as the plaintiff’s lack of understanding of the law may result in a permanent waiver of the right to recover damages. This was demonstrated in a recent surgical malpractice case in which the court dismissed the plaintiff’s claims due to her failure to make timely objections or to meet her burden of proof. If you were hurt due to the negligent acts of a surgeon, it is in your best interest to retain a capable Rochester surgical malpractice attorney to assist you in your pursuit of damages.

The Plaintiff’s Treatment and History of the Case

It is alleged that in August 2013, the plaintiff underwent two surgical repairs of aneurysms in her right leg, which were performed by the defendant. She continued to treat with the defendant after the surgeries, during which she reported pain in her leg. She then began treating with another physician and, in February 2014, underwent an angioplasty but nonetheless still experienced leg pain. She then filed a lawsuit against the defendant, alleging claims of medical malpractice and lack of informed consent. Following the close of discovery, the defendant moved for summary judgment, asking the court to dismiss the plaintiff’s claims. The court entered an order granting the judgment, and the plaintiff appealed.

Demonstrating Liability for Surgical Malpractice

The appellate court explained the well-established law of New York, which is that a plaintiff in a medical malpractice case must prove that the defendant departed from the accepted community standards of the practice of medicine and that the departure caused the plaintiff to suffer harm. As such, a defendant moving for summary judgment must show that either there was no departure from the standard of care or that any departure did not harm the plaintiff, in order to show the plaintiff’s claims should be dismissed. If a defendant makes such a showing, the burden shifts back to the plaintiff to demonstrate the presence of a factual dispute that requires the matter to proceed to trial.

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In most medical malpractice cases, the strength of each party’s position comes down to the credibility of their experts. Not only must a plaintiff’s expert set forth an opinion sufficient to establish the defendant’s liability, however, the expert must also demonstrate that he or she is sufficiently qualified to render such an opinion. In a recent surgical malpractice case determined by the Supreme Court, Appellate Division, Fourth Department, New York, the court discussed the parameters for determining whether a plaintiff’s expert report is sufficient to avoid dismissal through summary judgment. If you or a loved one suffered harm due to a negligently performed surgery, you should speak with a diligent Rochester surgical malpractice attorney to discuss what claims you may be able to pursue.

Procedural Background of the Case

It is alleged that the plaintiff’s decedent underwent abdominal surgeries performed by the defendant physicians. The plaintiff then filed a medical malpractice lawsuit against the defendants, arguing that the surgeries were negligently performed, which caused the decedent to suffer the injuries that led to her death. The defendants filed a motion for summary judgment, which the court granted. The plaintiff appealed. On appeal, the appellate court reversed the trial court ruling.

Sufficiency of an Expert’s Qualifications and Report

On appeal, the court found that the defendants met burden imposed on them by establishing that they did not depart from the standard of care, or that their departure did not cause the decedent’s harm, by submitting an expert affidavit that was specific, detailed, and factual in nature, and refuted each of the claims set forth in the plaintiff’s bill of particulars. As the defendants met the burden of proving their compliance with the standard of care and the absence of liability for the plaintiff’s harm, the burden shifted from the defendant to the plaintiff to raise a triable issue of fact. In other words, the plaintiff was required to produce an expert affidavit that opined both that the defendants departed from the standard of care and that the departure caused the plaintiffs harm.

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In medical malpractice cases in New York, the plaintiff is required to set forth a bill of particulars that explains in detail the manner in which the defendant care provider caused the plaintiff’s harm.  In turn, the defendant bears the burden of refuting each claim set forth in the bill of particulars. If the defendant can successfully prove that he or she is not negligent, the case may be dismissed in its entirety. If the defendant fails to address all of the plaintiff’s allegations, however, the plaintiff will be permitted to proceed with his or her claims, as demonstrated in a recent surgical malpractice case ruled on by a New York appellate court. If you suffered injuries due to an improperly performed surgery, it is advisable to speak with a dependable Rochester surgical malpractice attorney to discuss what you must prove to recover damages.

The Plaintiff’s Care and the Pleadings in the Case

It is reported that the plaintiff underwent surgery at the defendant hospital. Several months later, she was diagnosed with a ventral hernia, which was later revealed to be an incisional hernia. The plaintiff ultimately filed a surgical malpractice lawsuit against the defendant, alleging, in part, that the surgery increased her risk of sustaining an incisional hernia, and that the defendant was negligent due to its failure to diagnose and treat the hernia in a timely manner. After discovery was completed, the defendant filed a motion for summary judgment. The trial court denied the motion, and the defendant appealed.

A Defendant’s Burden of Proof in Seeking a Dismissal of a Surgical Malpractice Case

Under New York law, to succeed on a medical malpractice claim, a plaintiff must establish that the defendant deviated from the applicable standard of care, and the deviation proximately caused the plaintiff harm. In turn, to succeed on a motion for summary judgment in a medical malpractice case, a defendant must establish that either there was no deviation, or the deviation did not cause the plaintiff’s alleged harm. If the defendant does not meet this burden, however, summary judgment will not be granted.

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Anyone involved in a surgical malpractice case has the right to be represented by an attorney. If a person waives that right and chooses to proceed on his or her own behalf, then any attorney involved in the case can communicate directly with the person. If a person is represented by counsel, however, all communications must be sent to the person’s attorney. In a recent surgical malpractice case before a New York appellate court, the court discussed whether an attorney that violates the rules of professional conduct by speaking directly with a represented party should be disqualified from the case. If you or a loved one suffered harm due to surgical malpractice, it is wise to meet with a proficient Rochester surgical malpractice attorney to discuss your case.

Factual Background of the Case

It is reported that the plaintiff’s husband underwent surgery on his ankle. Three days after the surgery, the plaintiff’s husband died. The plaintiff subsequently filed a malpractice lawsuit against several people and entities involved in her husband’s surgery and subsequent care. During discovery, the plaintiff’s attorney sought to depose a witness who was part of the team that treated the plaintiff’s husband on the day he died, but who was not a party in the case. In the process of attempting to locate the witness, the plaintiff’s counsel was advised by an insurance company that another attorney would handle the matter for the witness.

Despite being informed that the witness was represented by counsel, the plaintiff’s counsel deposed the witness without her attorney being present. The defendants subsequently moved to strike the deposition testimony and to disqualify the plaintiff’s attorney, and the witness joined in the motion. The court found that plaintiff’s counsel violated the Professional Rules of Conduct, and granted the motion to strike, but did not disqualify plaintiff’s counsel. Defendants appealed.

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In surgical malpractice cases, evidence regarding what actions the defendant surgeon took before, during, and after the surgery is often offered by the plaintiff to prove liability or by the defendant in support of the argument that there was no deviation from the standard of care. Typically, the defendant’s acts are established via records or either party’s recollection of events. Recently, a New York appellate court analyzed whether a defendant surgeon can testify regarding what he or she did during a procedure based on his or her habit rather than actual knowledge. If you were harmed by a surgical procedure, it is advisable to speak with a diligent Rochester surgical malpractice attorney regarding what damages you may be owed.

Factual Background of the Case

It is alleged that the plaintiff consulted the defendant for treatment of an incisional hernia. The defendant attempted a surgical repair of the hernia, during which he sutured a mesh patch to the plaintiff’s abdominal wall. The patch had two sides, one of which was rough and intended to be placed against the abdominal wall, and the other of which was smooth and meant to protect the internal organs.

Reportedly, following the surgery, the plaintiff developed severe pain. It was later determined that the patch had been inserted backward, and the rough side had adhered to the plaintiff’s internal organs. The plaintiff sued the defendant, arguing that he deviated from the accepted standard of care by improperly suturing the patch to her abdominal wall. Prior to trial, the plaintiff filed a motion to prohibit the defendant from testifying at trial regarding his custom and practice in performing hernia repairs. The court granted the motion, but the plaintiff was permitted to testify regarding his usual practices regardless. The jury found in favor of the defendant, and the plaintiff appealed.

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Proving liability for surgical malpractice can be difficult and many New York surgical malpractice cases are dismissed prior to going to trial. In sum, if defendants can establish that there is no genuine issue of fact as to whether they deviated from the applicable standard of care, they can prove they cannot be held liable for surgical malpractice as a matter of law. Recently, an appellate division of the Supreme Court of New York discussed what constitutes sufficient evidence of an issue of fact to deny a defendant’s motion for dismissal of a surgical malpractice claim.  If you were harmed due to an inappropriately performed surgery, it is crucial to engage a seasoned Rochester surgical malpractice attorney regarding your potential claims.

Facts and Procedure of the Case

It is alleged that the defendant surgeon performed a thyroidectomy on the plaintiff in 2005, and a total thyroidectomy on the plaintiff in 2010. The plaintiff reportedly suffered damage to her laryngeal nerve due to the surgeries. She subsequently brought a surgical malpractice claim against the defendant surgeon and the two defendant medical centers, alleging that the centers were liable for the defendant surgeon’s conduct.

The defendants filed motions for summary judgment, which were denied. The defendants appealed. On appeal, the court modified the order to dismiss the defendant medical centers but affirmed the trial court’s denial of the defendant surgeon’s motion for summary judgment.

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In a New York surgical malpractice case, the defendant surgeon can avoid liability if he or she can prove that he or she did not depart from the standard of care, or that any departure did not cause the alleged harm. The defendant surgeon must provide clear and sufficient evidence in support of his or her defense, however, otherwise the injured party will be permitted to pursue his or her claim against the defendant surgeon. In  a recent New York appellate case, the court explained what constitutes sufficient evidence to deny a defendant surgeon’s motion to dismiss a plaintiff’s claim. If you sustained harm because of a surgeon’s negligence you should meet with a zealous Rochester surgical malpractice attorney to discuss your harm and what damages you may be able to recover.

Facts Regarding the Plaintiff’s Treatment

Allegedly, in 2015 the plaintiff visited the defendant surgeon, to undergo an elective cosmetic procedure that involved transferring fat to areas of the plaintiff’s face. One of the known risks of the procedure was blindness, caused by fat entering a blood vessel and migrating to the eyes. When the plaintiff awoke from her anesthesia following the procedure, she experienced pain in her left eye and diminished vision. She was transported to an ophthalmologist, who noted there was fat in the vessels of her retina. The following day, the plaintiff visited a neuro-ophthalmologist, who diagnosed her with a loss of vision due to a central retinal artery occlusion secondary to a fat embolism.

It is reported that the plaintiff then filed a medical malpractice lawsuit against the defendant, alleging that his negligence in performing the procedure caused her to suffer the permanent loss of vision in her left eye. Specifically, the plaintiff alleged that the defendant failed to properly aspirate during the fat administration. The defendant filed a motion for summary judgment, arguing he was prima facie entitled to judgment in his favor as a matter of law. The court denied the defendant’s motion, and he appealed.

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In New York summary judgment motions in medical malpractice cases, the burden shifts from the plaintiff to the defendant and then back to the plaintiff with regards to whether the defendant should be held liable for medical malpractice. Generally, a defendant must produce an expert affidavit to support the argument that he or she did not deviate from the applicable standard of care and therefore did not commit medical malpractice. In a recent surgical malpractice case, a New York appellate court discussed whether a defendant may submit his or her own affidavit to meet the burden of establishing he or she should not be held liable.  If you were injured by surgical malpractice it is essential to engage a proficient Rochester surgical malpractice attorney to assist you in pursuing any damages you may be owed.

Facts Regarding the Plaintiff’s Treatment

Allegedly, the plaintiff underwent a bilateral reduction mammoplasty, which was performed by the defendant surgeon. She subsequently suffered serious and permanent injuries, which she alleged was caused by negligent care during and after her surgery. As such, she filed a surgical malpractice lawsuit against the defendant. The defendant filed a motion for summary judgment, attaching his own affidavit in support of the contention that he was entitled to judgment in his favor as a matter of law. The trial court granted his motion, and the plaintiff appealed.

Sufficiency of Expert Affidavit

To establish a prima facie entitlement to summary judgment, a defendant in a surgical malpractice case must provide factual proof that he or she complied with the appropriate standard of care, in rebuttal to the plaintiff’s malpractice claims. Factual proof can consist of deposition testimony, medical records, and affidavits. A defendant can submit his or her own affidavit to meet the burden of proof, but the affidavit must be specific, detailed, and factual in nature. Further, it must address each of the specific factual allegations raised by the plaintiff in his or her bill of particulars. Continue reading

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The basis of any Rochester surgical malpractice claim is the assertion that a physician caused harm by deviating from the standard of care. Therefore, as the ordinary layperson does not have any knowledge regarding what level of care is required to comply with the standard, both parties in a medical malpractice case must submit expert opinions in support of their position. In a recent Rochester surgical malpractice case, the court analyzed what constitutes a sufficient medical expert opinion for the purposes of defeating a motion for summary judgment. If you were harmed by surgical malpractice you should consult a trusted Rochester surgical malpractice attorney regarding your alleged harm and what evidence you must produce to obtain a successful outcome.

Factual Background

It is reported that the plaintiff underwent a transurethral resection of a tumor. She allegedly suffered injuries during the surgery and filed a lawsuit against the defendant physician that performed the surgery, and the defendant hospital where the surgery was performed. The defendants filed a motion for summary judgment, which the court granted, dismissing the case. The plaintiff appealed.

What Constitutes a Sufficient Medical Expert Opinion

On appeal, the issue presented was whether the plaintiff raised a triable issue of material fact. The court noted that the defendants submitted an affidavit of a medical expert that addressed the negligence claims asserted by the plaintiff. As such, the defendants met their initial burden of establishing that they did not deviate from the appropriate standard of care, or that any deviation did not cause the harm the plaintiff allegedly suffered.

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