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Court Analyzes Liability for Failing to Obtain Informed Consent in New York Medical Malpractice Cases

When a person is harmed by negligent medical care, in many cases, there will be more than one party responsible for the harm. For example, a person who sustained injuries due to incompetent treatment in a hospital may be able to pursue claims against not only the treating physicians but also against the hospital. As shown in a recent New York appellate court case, however, while a hospital may be held vicariously liable for the negligence of its employees, it is not always clear whether liability rests with a hospital or another entity. If you were injured by insufficient care in a hospital, it is prudent to consult a trusted Rochester hospital malpractice attorney to discuss what evidence you must produce to establish liability.

Factual Background

It is reported that the plaintiff treated at the defendant hospital while she was pregnant and subsequently filed a malpractice claim against the defendant hospital and the defendant obstetrics practice following the premature birth of her son. Specifically, the plaintiff alleged that the defendant hospital deviated from the standard of care by negligently performing a vaginal ultrasound despite the fact that the plaintiff had been diagnosed with placenta previa, and in failing to obtain the plaintiff’s informed consent prior to performing the ultrasound.

Additionally, the plaintiff alleged that the defendant’s negligence caused her placenta to hemorrhage, which caused her son to be born prematurely, and to suffer brain damage and significant developmental delays. The defendant filed a motion for summary judgment on all claims except for those premised on a theory of vicarious liability. The court granted the defendant’s motion, and the plaintiff appealed.

Liability for Lack of Informed Consent

On appeal, the court affirmed the dismissal of the plaintiff’s lack of informed consent claim, due to the fact that it was not the defendant hospital’s duty to obtain the plaintiff’s consent. The court noted that the physician who ordered the ultrasound was an employee of the obstetrics defendant. Although it was unclear whether an employee of the defendant hospital or an employee of the defendant practice performed the ultrasound, the court found that it did not matter regardless.

Specifically, the court noted that the obligation to obtain consent rested with the physician who ordered the test, not the technician that performed the test. Thus, the court affirmed the trial court’s order with regards to the informed consent claim. The court also affirmed the portion of the order dismissing the vicarious liability claims that were based on the negligence of physicians who were previously dismissed. The court declined to affirm the dismissal of vicarious liability claims asserting liability for the negligence of the defendant hospital’s employees, however.

Meet with a Dedicated Rochester Malpractice Attorney

If you or a loved one sustained harm due to negligent care in a hospital, you should meet with a dedicated  Rochester hospital malpractice attorney to discuss what claims you may be able to pursue against the parties responsible for your harm. The seasoned medical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will assertively advocate on your behalf to help you seek the best result achievable under the facts of your case. You can contact us through our online form or at 585-653-7343 to schedule a meeting.

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