Surgical Malpractice

Court Discusses Sufficiency of Expert Affidavits in New York Medical Malpractice Claims

Published on: July 30, 2019 | By DeFrancisco & Falgiatano

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 ›

New York Court Discusses Sufficiency of Expert Opinions in Surgical Malpractice Cases

Published on: June 25, 2019 | By DeFrancisco & Falgiatano

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.

New York Court Clarifies Statute of Limitations for Lack of Informed Consent Claims

Published on: April 2, 2019 | By DeFrancisco & Falgiatano

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.

New York Court Finds No Error In Verdict Sheet in Medical Malpractice Case

Published on: March 4, 2019 | By DeFrancisco & Falgiatano

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.

New York Court Discusses Proof Needed to Show Deviation from Standard of Care

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

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.

Court Defines Foreign Objects in New York Medical Malpractice Cases

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

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.

Plastic Surgeon Sued by 35 Patients for Malpractice

Published on: December 18, 2018 | By DeFrancisco & Falgiatano

While many plastic surgery procedures seem routine, the reality is these are serious surgeries that carry a substantial risk of complication if the plastic surgeon fails to use the utmost care. A mistake during a plastic surgery procedure can result in a permanent deformity or even death. If you or your loved one has suffered preventable injury because of plastic surgeon’s negligence, let our seasoned Rochester medical malpractice attorneys help. At DeFrancisco & Falgiatano Personal Injury Lawyers, we know how to handle medical negligence cases.

An Omaha plastic surgeon is being sued for malpractice after patients allege the surgeon left their bodies deformed. There are currently 35 claims against the doctor, as well as the surgery center where the procedures took place. Specifically, the complaint claims that patients suffered physical and emotional harm such as disfigurement, painful scarring and nerve damage. In one specific case, a patient claimed she had a tummy tuck that went wrong, which left her with painful jagged scars across the abdomen.

Gallbladder Surgery Malpractice in Rochester

Published on: October 17, 2018 | By DeFrancisco & Falgiatano

If you’ve been injured due to surgical mistakes made immediately before, during or after a gallbladder surgery, you should seek the advice and guidance of a trusted Rochester medical malpractice attorney. These cases are complicated, but with years of experience on our side we will work diligently to uncover the cause of your harm. We know that dealing with a health problem and thinking about a legal claim can be incredibly draining, which is why we will try to resolve you legal matter in the most effective and efficient way possible.

What is the Gallbladder?

The gallbladder is a little hollow organ located under your liver in the upper-right side of the abdomen. The gallbladder houses bile and a mixture of fluids, fats and cholesterol. Bile assists in the breaking down of fat from food in your intestine. In other words, the gallbladder is responsible for storing extra bile produced by the liver, which is used for the breakdown of fats in the digestive process.

Gallbladder Surgery Malpractice

Gallbladder removal is one of the most frequent medical procedures in the United States. This is because gallbladder disease impacts 12 percent of adults and every year more than 700,000 Americans have their gallbladders removed. Many people choose to have their gallbladders removed after they develop gallstones, which cause ongoing painful symptoms. The American College of Surgeons reports that one out of every 1,000 patients die during gallbladder removal.

Patient Falls off Operating Table During Procedure

Published on: September 25, 2018 | By DeFrancisco & Falgiatano

Every surgery carries some level of inherent risks but there are some things that should never happen while you are being operated on. If you have suffered an unnecessary injury due to a surgeon’s negligence, you need to reach out to a seasoned Rochester medical malpractice attorney who can help. At DeFrancisco & Falgiatano Personal Injury Lawyers, we are committed to getting our clients the justice and compensation they deserve in their case.

In a recent North Carolina case, a patient sued Duke Health System over a 2012 incident in which the patient, a 75 year old woman, allegedly fell off an operating table during a heart catheterization and suffered a concussion, jaw injuries and bruises.

North Carolina law mandates that plaintiffs in medical malpractice cases “certify” that they have someone who can serve as an expert witness in their case. The expert witness is typically a medical professional in the same specialty of medicine as the defendant and, as such, can testify regarding the appropriate standard of care in the case. The plaintiff’s case was lacking the necessary “certification.”

Medical Malpractice in Buttocks Augmentation Cases

Published on: June 29, 2018 | By DeFrancisco & Falgiatano

Errors in buttocks augmentation procedures can lead to serious complications. If you have suffered a complication after this type of procedure, you may have a valid medical malpractice claim. At DeFrancisco & Falgiatano Personal Injury Lawyers, our diligent Rochester medical malpractice attorneys can evaluate your case and determine a legal strategy accordingly.

Buttocks augmentation can be accomplished in a few different ways. A Brazilian butt lift takes place when a patient uses fat from one part of their body to be transplanted into their buttocks to increase the size, according to The American Society of Plastic Surgeons (ASPS). Butt implants, on the other hand, require a surgeon to insert silicone implants into the patient’s rear end. Women who are thin and do not have enough fat for liposuction are typically the candidates who go the implant route.

The ASPS reports that butt implants and lifts are the fastest-growing type of plastic surgery in the United States. In fact, butt implants increased by 18 percent between 2015 and 2016, while fat grafting procedures jumped 26 percent during the same time frame. In total, 20,673 butt augmentation procedures were performed in the country in 2017.