Articles Posted in Surgical Malpractice

A patient that suffers harm due to a medical procedure may seek to recover damages via a medical malpractice lawsuit. In some instances, an injured patient may not only be able to allege the surgeon who performed the surgery is liable for medical negligence but may also be able to pursue a lack of informed consent claim as well. Negligence and informed consent claims have different elements, and merely because plaintiffs can proceed with one claim does not mean they will be able to proceed with another, as demonstrated in a recent New York opinion. If you suffered harm due to the carelessness of a surgeon, it is smart to speak to a Rochester medical malpractice lawyer about your options for seeking damages.

The Plaintiff’s Harm

It is alleged that the defendant performed a total left hip replacement surgery on the plaintiff in August of 2014. The plaintiff subsequently sustained damage to his left femoral nerve, which he asserted was due to the defendant’s negligence during the procedure. Thus, he filed a medical malpractice complaint against the defendant in late 2015, in which he set forth medical negligence and lack of informed consent claims. The defendant moved for summary judgment on both claims, asking the trial court to dismiss the case. The trial court denied the motion, and the defendant appealed.

Establishing Triable Issues of Fact in Medical Negligence and Lack of Informed Consent Claims

The appellate court affirmed the trial court’s order as to the lack of informed consent claim but denied it with regard to the medical negligence claim. The appellate court explained that the evidence of the case, including the plaintiff’s deposition, the written consent form signed by the plaintiff, and the plaintiff’s medical records, demonstrated that the defendant advised him of the benefits, risks, and alternatives to the surgery. Thus, the appellate court found that the plaintiff failed to demonstrate there was a triable question of fact on the lack of informed consent claim and reversed the trial court ruling. Continue reading

In medical malpractice matters, the plaintiff will typically rely, in part, on treatment records to show that the defendant failed to provide competent care. Thus, if a defendant fails to retain medical records, imaging, or other documents relating to the plaintiff’s care, it could adversely impact the plaintiff’s ability to establish fault. Further, as discussed in a recent New York opinion issued in a surgical malpractice case, in certain circumstances, the spoliation of evidence may be a basis for imposing sanctions.  If you were injured by a negligently performed procedure, you could be owed compensation, and it is in your best interest to meet with a Rochester surgical malpractice lawyer about your potential claims.

The Plaintiff’s Harm

It is alleged that the plaintiff visited the defendant facility, where he was treated for swelling and pain in his left leg by the defendant doctors. The defendant doctors performed a venogram and diagnosed the plaintiff with deep vein thrombosis. He was admitted to the defendant hospital, where he was treated with numerous medications, including blood thinners and anticoagulants. During his admission, he suffered a brain hemorrhage which rendered him permanently paralyzed on the left side of his body.

It is reported that the plaintiff instituted a lawsuit against the defendants, asserting claims of medical malpractice and lack of informed consent. During discovery, he sought records from the defendants, including imaging from the venogram. The defendants responded they did not have the images and subsequently moved for summary judgment. The plaintiff filed a response in opposition to the motion in which he sought sanctions against the defendants for spoliation of evidence. The trial court granted the defendants’ motion and denied the plaintiff’s request for sanctions, and the plaintiff appealed. Continue reading

A medical malpractice lawsuit, like most civil claims, must be pursued in a timely manner; otherwise, the injured party may waive the right to recover damages. In some instances, though, plaintiffs that fail to file cases within the applicable statute of limitations may nonetheless be able to proceed with their claims if they can show that the statute was tolled. In a recent opinion issued in a medical malpractice case, a New York court discussed tolling of the statute of limitations for harm caused by foreign objects left in a person after surgery. If you suffered harm due to errors committed during surgery, it is advisable to speak to a Rochester medical malpractice lawyer to determine your potential claims.

The Plaintiff’s Claims

It is reported that the plaintiff visited the emergency department of the defendant hospital when she was ten years old with complaints of abdominal pain. She was diagnosed with appendicitis and underwent an emergency appendectomy which was performed by the defendant. Fourteen years later, she instituted a medical malpractice lawsuit against the defendants, alleging that foreign objects were left inside of her body following the surgery, causing her to suffer reproductive and gastrointestinal issues, and pain. The defendants moved to have the plaintiff’s claims dismissed, arguing that she failed to pursue them within the time provided by the applicable statute of limitations.

Tolling of the Statute of Limitations in Medical Malpractice Cases

Under New York law, the statute of limitations for a medical malpractice claim is typically two years and six months from the date the cause of action accrued. There is an exception, though, for cases that arise out of the discovery that a foreign object was left in the body of the patient. In such instances, the action may be commenced within one year of the date of the discovery of the foreign object or the revelation of facts that would lead to such discovery, whichever is earlier. Continue reading

In all but the clearest of cases, what constitutes medical malpractice is generally not readily understood by the average juror. As such, medical malpractice cases typically hinge on expert testimony. Plaintiffs that fail to produce expert testimony, then, will likely have their cases dismissed, as they will be unable to demonstrate a breach of the standard of care. This was demonstrated in a recent New York opinion, in which the court dismissed a pro se plaintiff’s surgical malpractice claims via summary judgment, due to her failure to produce an expert affidavit. If you were harmed by a negligent surgeon, you could be owed compensation, and it is advisable to meet with a trusted Rochester medical malpractice lawyer to evaluate your situation.

The Plaintiff’s Alleged Harm

Allegedly, the plaintiff underwent a surgical procedure that was performed by the defendant, in which fat was transferred from her back, arms, and abdomen into other parts of her body. Following the procedure, she suffered pain in her right hip and bleeding. Additionally, she believed that pictures were taken of her when she was unconscious during the procedure. She subsequently filed a lawsuit against the defendant, alleging medical malpractice claims. After discovery was completed, the defendant moved for dismissal of the plaintiff’s claims by way of summary judgment. Upon reviewing the evidence presented, the court granted the defendant’s motion.

Proving Medical Negligence Under New York Law

The court explained that, in order to prove a medical malpractice claim in New York, a plaintiff must show that the defendant breached the standard of care accepted in the community and that the breach was the proximate cause of the plaintiff’s harm. Thus, if a defendant demonstrates that it did not depart from the standard of care or that any departure from the standard of care did not cause the plaintiff’s injuries, the defendant will be prima facie entitled to summary judgment. Continue reading

Surgery on the wrong part of the body is one of the most egregious medical errors that can occur. Thus, if a doctor operates on the incorrect body part, the person injured may be able to pursue multiple claims against the doctor, including medical malpractice, lack of informed consent, and battery. In a recent New York opinion, a court explained what a patient must prove to establish liability under each of these claims in a case in which the defendant performed surgery on the wrong site on the plaintiff. If you underwent a surgical procedure that was not properly performed, it is in your best interest to speak to a Rochester surgical malpractice attorney to assess your potential claims.

The Plaintiff’s Surgery

It is reported that the plaintiff was scheduled to undergo surgery to remove an abscess on her left leg. The defendant performed the procedure but removed a cyst from the Plaintiff’s Bartholin gland, rather than an abscess from her leg. The plaintiff, who suffered psychological and physical harm because of the improperly performed surgery, filed a lawsuit against the defendant alleging claims of medical malpractice, battery, and lack of informed consent. The defendant moved for summary judgment, and the trial court granted his motion. The plaintiff then appealed, and on appeal, the trial court ruling was reversed.

Claims Arising out of a Procedure Performed on the Wrong Part

On appeal, the court noted that the defendant’s motion included the deposition transcript of the plaintiff wherein she described that the defendant advised her he was going to remove an abscess from her leg but instead operated on her Bartholin gland. Therefore, per the defendant’s own submission, she failed to demonstrate that there were no factual disputes on material issues in the matter as to whether she operated on the wrong area and whether the error caused the plaintiff’s harm, as required to obtain a summary judgment under New York law. Continue reading

In medical malpractice cases, the injured party must show that the health care provider deviated from what is considered the accepted practice of medicine. Thus, the person seeking damages must produce evidence demonstrating the standard of care. In a recent opinion, a New York court discussed what evidence is admissible in a medical malpractice case and how compelling the plaintiff’s evidence must be to show that the defendant caused the harm alleged in a matter arising out of surgical malpractice. If you suffered harm due to an error during a procedure, it is advisable to consult a skillful Rochester surgical malpractice attorney to discuss your claims.

The Injury and Subsequent Pleadings

Allegedly, the plaintiff underwent a surgical hernia repair in December 2013. The defendant performed the surgery. In March 2014, after experiencing difficulty eating and abdominal pain, the plaintiff was diagnosed with a disorder that caused stomach paralysis and made it difficult to digest food. The plaintiff then filed a medical malpractice lawsuit against the defendant, arguing his negligent performance of the December 2013 procedure caused the plaintiff’s harm. A trial was conducted, and the jury ruled in favor of the plaintiff, awarding him $500,000. The defendant appealed, arguing that certain evidence was inappropriately admitted at trial and that the court improperly instructed the jury.

Evidence Demonstrating Negligence in a Medical Malpractice Case

On appeal, the court noted that while the defendant raised a general objection to the admission of a manual into evidence at trial, he failed to raise the specific objection necessary for the court to consider the matter on appeal. Regardless, the court declined to adopt the defendant’s reasoning that the manual was used to demonstrate the standard of care.

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