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Court Discusses Limitations of a Plaintiff’s Right to Amend a Complaint in New York Medical Malpractice Cases

Many pregnant women treat with ob-gyns throughout their pregnancy, to monitor both their health and the health of their unborn child. As part of this care, ob-gyns routinely perform ultrasounds, to scan for abnormalities. In a recent case arising out of the death of a pregnant woman due to complications following a third-trimester abortion, the court analyzed whether a plaintiff should be granted leave to amend a complaint in response to the defendant’s motion for summary judgment. If you or a loved one suffered harm due to ob-gyn malpractice it is crucial to retain a Rochester ob-gyn malpractice attorney adept at helping injured parties seek compensation for their harm.

Factual and Procedural Background

It is reported that the plaintiff’s decedent visited the defendant ob-gyn for an ultrasound when she was 20 weeks pregnant. During the ultrasound, an anatomy scan was performed. The defendant determined the results of the scan were normal, but noted some asymmetry, and recommended a repeat scan. A second scan was performed eight weeks later, during which it was noted that the fetus had severe abnormalities. An MRI was subsequently conducted, after which it was noted that the fetus had a poor prognosis. The decedent then underwent counseling after which she elected to terminate her pregnancy.

Allegedly, a week after the MRI the decedent underwent a procedure to terminate the pregnancy, which took four days. The day after the decedent was discharged her condition deteriorated. She died the following day. Following an autopsy, it was determined that her cause of death was disseminated intravascular coagulation caused by an amniotic fluid embolus following the termination of her pregnancy.

Reportedly, the plaintiff subsequently filed an ob-gyn malpractice lawsuit against the defendant alleging that the decedent’s death was caused by the failure to properly diagnose fetal abnormalities at the 20-week scan, thereby causing the decedent to undergo a risky third-trimester abortion instead of the safer second-trimester abortion. The defendant filed a motion for summary judgment which was supported by an expert affidavit stating that the failure to diagnose fetal abnormalities in the second semester did not cause or contribute to the cause of the decedent’s death. In response, the plaintiff filed a cross-motion to amend the complaint to assert that the decedent died of septic shock. The court granted the motion and the defendant appealed.

Plaintiff’s Right to Amend a Complaint  

On appeal, the court discussed the shifting burden of proof in medical malpractice claims, from the defendant, who must establish that there was no deviation from the standard of care or that any deviation was not the cause of the plaintiff’s harm, to the plaintiff, who must submit facts or evidence sufficient to refute the defendant’s claims. In the subject case, the court found that the defendant met his burden of proof with regard to the standard of care, and thus established a prima facie right to summary judgment. In response, the plaintiff did not raise a triable issue of fact but alleged a new theory of liability. The court found that this was improper, noting that a plaintiff is not permitted to raise a new theory of recovery for the first time in response to a defendant’s motion for summary judgment. Thus, the court found that summary judgment should have been granted in favor of the defendant.

Consult an Experienced Attorney Regarding Your Case

When a woman entrusts her care and the care of her unborn child to a physician, it is with the expectation that the care provided will be thorough and appropriate. If you were injured by inadequate or inappropriate care from an ob-gyn it is essential to consult an experienced Rochester ob-gyn malpractice attorney regarding your case and what damages you may be able to recover. The zealous malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will work tirelessly to help you recover any damages you may be owed. We can be reached at 833-200-2000 or through the online form to set up a confidential and free consultation regarding your case.


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