Articles Posted in Surgical Malpractice

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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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All civil claims have a statute of limitations under which the injured party must pursue his or her claim. The statute of limitations for your claim depends on the nature of the harm alleged. In cases involving surgical malpractice, if the plaintiff sets forth claims of both intentional tort and negligence, different statutes of limitations may apply to each claim. This was discussed by a New York district court, in a recent case in which the plaintiff alleged both negligence and an intentional tort following her surgeon’s alleged failure to obtain informed consent.  If you were harmed due to your doctor’s failure to provide you with informed consent prior to your surgical procedure you should consult an experienced Rochester surgical malpractice attorney as soon as possible to prevent the waiver of your right to recover.

Reportedly, the plaintiff underwent multiple plastic surgery procedures that were performed by the defendant. Following the procedures, the plaintiff filed a pro se lawsuit against the defendant surgeon, alleging claims of negligence and intentional tort due to her surgeon’s failure to obtain informed consent. Specifically, she alleged the defendant used tools on her face when she requested that he not do so, and injected fat in areas of her body without her consent.

The defendant filed a motion to dismiss, arguing that the plaintiff’s claims were barred by the statute of limitations. The motion was referred to another judge, who recommended that the motion be denied. The defendant filed objections to the recommendations. Specifically, the defendant objected to the finding that the plaintiff set forth a negligence claim based on the lack of informed consent. Rather, the defendant argued that the plaintiff only asserted a claim for intentional tort in the manner of assault and battery, which had a one-year statute of limitations.

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In a medical malpractice case, it is essential to set forth every manner in which malpractice was allegedly committed, and present evidence of the malpractice in a clear manner at trial. A plaintiff’s failure to provide sufficiently present evidence of malpractice can result in verdict sheets that do not adequately address the alleged malpractice and a verdict in favor of the defendant.

A New York appellate court recently affirmed a jury’s verdict in favor of the defendant, finding that the court did not err in adding questions to the verdict sheet regarding the alleged malpractice, due to the fact that the evidence presented only indicated malpractice in one aspect of care. If you sustained harm due to insufficient care or testing, it is important to retain a skillfulRochester medical malpractice attorney who will work diligently to help you pursue damages for your harm.

The Plaintiff’s Surgery

Reportedly, the plaintiff underwent surgical resection of his colon, which was performed by the defendant. During the surgery, the defendant performed anastomosis, which is a procedure in which a damaged portion of the colon is removed and the healthy portions are reconnected. The plaintiff subsequently developed a leak at the site of the anastomosis and suffered sepsis, peritonitis and renal failure due to the leak. He filed a medical malpractice action against the defendant. Following a trial, a jury issued a verdict in favor of the defendant, after which the plaintiff appealed.

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The quality of testimony provided by an expert can make or break a plaintiff’s medical malpractice case. An expert must show not only that he or she is qualified to offer an opinion regarding the alleged malpractice in the particular specialty in which the defendant practices, he or she must also offer an opinion sufficient to show the manner in which the defendant deviated from the standard of care. If an expert fails to meet these requirements, it can be fatal to a plaintiff’s case.

This was illustrated in a recent case decided by the appellate division of the Supreme Court of New York, where the court held that the plaintiff’s expert’s report was insufficient to show there was an issue of fact as to whether the defendant failed to meet the standard of care.  If you suffered harm due to medical malpractice, it is in your best interest to consult a skilled Rochester medical malpractice attorney to discuss your case.

Facts Regarding the Treatment of the Decedent

Reportedly, the plaintiff decedent underwent a knee replacement surgery on July 30, 2010. The surgery was performed by the defendant surgeon at the defendant hospital. The decedent had multiple health issues, including anemia and hypertension, at the time of the surgery, but she tolerated the surgery well. Following the surgery, she was prescribed an anticoagulant to prevent the formation of deep venous thrombosis (DVT). She remained hospitalized in stable condition. On August 4, 2010, however, she died due to a pulmonary embolism caused by a DVT in her leg.

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A rare but serious example of medical malpractice is a surgeon inadvertently leaving an object inside of a patient following surgery. Under New York law, the statute of limitations for pursuing a medical malpractice claim differs when the claim involves the discovery of a foreign object within the body of the patient.

The Appellate Division of the Supreme Court of New York recently addressed what constitutes a foreign body in a case where it was disputed whether the plaintiff filed his lawsuit within the statute of limitations. If you suffered injuries or illness due to a foreign object that was left inside of your body following a surgery, you should consult a knowledgeable Rochester medical malpractice attorney to discuss your case.

The Plaintiff’s Surgery

Allegedly, the plaintiff underwent surgery at the defendant hospital in 1993, during which a ureteral stent was inserted. The plaintiff alleged the defendant carelessly failed to remove the stent which caused him harm. The stent was not discovered by the plaintiff until 2012, and the plaintiff filed a medical malpractice action against the defendant in 2013. The defendant denied that it placed the stent in the plaintiff, but it no longer had the surgical records to support the argument. Further, the defendant argued that even if it had placed the stent the plaintiff’s action should be dismissed because it was not filed within the time period set forth in the applicable statute of limitations. As such, the defendant filed a motion for summary judgment, which the trial court denied. The defendant subsequently appealed.

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