A delayed diagnosis can cause irreparable harm, but proving a delay in providing an accurate diagnosis caused a person’s damages can be challenging and will typically require the testimony of one or more experts. The pitfalls of failing to obtain a qualified expert were recently demonstrated in a pediatric malpractice case, in which the court affirmed the dismissal of the plaintiff’s case due to an insufficient expert affidavit. If your child suffered harm due to negligent care provided in a hospital, it is prudent to speak with a capable Rochester pediatric malpractice attorney regarding your potential claims.
Factual and Procedural Background
It is reported that the plaintiff filed a medical malpractice lawsuit against the defendant hospital, arguing that the hospital’s delayed diagnosis caused the plaintiff to suffer harm. The plaintiff’s precise injuries were not set forth in the case. The defendant filed a motion for summary judgment, which the court granted, dismissing the plaintiff’s case. The plaintiff appealed, but on appeal, the appellate court affirmed the trial court’s decision.
Sufficiency of a Plaintiff’s Expert Affidavit
On appeal, the court stated that the defendant set forth a prima facie case showing that it was entitled to judgment as a matter of law. Specifically, the defendant submitted an expert affidavit from a pediatric neurologist that opined that the defendant did not depart from the accepted and good practice of medicine and that any departure did not cause the plaintiff’s alleged harm. The affidavit stated that as the plaintiff had only suffered one seizure due to a fever, imaging of the plaintiff’s brain was not indicated when he visited the emergency room of the defendant hospital. Further, the affidavit opined that although the plaintiff suffered from an arterial venous malformation (AVM), the AVM was not the cause of the plaintiff’s harm.
Conversely, the court found that the expert affidavit submitted by the plaintiff was insufficient to prove that a triable issue of fact existed. First, the court noted that the affidavit did not indicate that the plaintiff’s expert had the requisite experience and knowledge needed to opine on the subject issues.
Further, regardless of the plaintiff’s expert’s qualifications, the court found that the plaintiff failed to meet his burden of proof because the expert affidavit did not refute the opinions set forth in the defendant’s expert affidavit. In other words, the plaintiff’s expert affidavit did not state that diagnostic imaging was indicated due to the plaintiff’s medical history, or that the plaintiff’s harm was caused by a delay in discovering the plaintiff’s AVM, or diagnosing the plaintiff with a seizure disorder. Thus, the court affirmed the trial court ruling.
Consult a Capable Malpractice Attorney
If your child suffered harm due to a delayed diagnosis, it is in your best interest to consult a capable Rochester pediatric malpractice attorney regarding what compensation you may be able to recover for your child’s harm. The trusted attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers have the skills and experience to help you seek the best legal result possible under the facts of your case. You can contact us through our form online or at 833-200-2000 to set up a free and confidential meeting to discuss your potential claims.