While some people are reluctant to retain legal counsel prior to filing a medical malpractice lawsuit due to fears regarding costs, the decision to proceed pro se can have drastic consequences, as the plaintiff’s lack of understanding of the law may result in a permanent waiver of the right to recover damages. This was demonstrated in a recent surgical malpractice case in which the court dismissed the plaintiff’s claims due to her failure to make timely objections or to meet her burden of proof. If you were hurt due to the negligent acts of a surgeon, it is in your best interest to retain a capable Rochester surgical malpractice attorney to assist you in your pursuit of damages.
The Plaintiff’s Treatment and History of the Case
It is alleged that in August 2013, the plaintiff underwent two surgical repairs of aneurysms in her right leg, which were performed by the defendant. She continued to treat with the defendant after the surgeries, during which she reported pain in her leg. She then began treating with another physician and, in February 2014, underwent an angioplasty but nonetheless still experienced leg pain. She then filed a lawsuit against the defendant, alleging claims of medical malpractice and lack of informed consent. Following the close of discovery, the defendant moved for summary judgment, asking the court to dismiss the plaintiff’s claims. The court entered an order granting the judgment, and the plaintiff appealed.
Demonstrating Liability for Surgical Malpractice
The appellate court explained the well-established law of New York, which is that a plaintiff in a medical malpractice case must prove that the defendant departed from the accepted community standards of the practice of medicine and that the departure caused the plaintiff to suffer harm. As such, a defendant moving for summary judgment must show that either there was no departure from the standard of care or that any departure did not harm the plaintiff, in order to show the plaintiff’s claims should be dismissed. If a defendant makes such a showing, the burden shifts back to the plaintiff to demonstrate the presence of a factual dispute that requires the matter to proceed to trial.
In the subject case, the court found that the defendant met his burden of proof by presenting medical records and an expert affidavit opining that there was no deviation from the standard of care and that any deviation did not cause the plaintiff’s harm, nor did the alleged failure to obtain the plaintiff’s informed consent. The court rejected the plaintiff’s argument that the defendant relied on uncertified records, noting that the plaintiff waived the right to object to the records by not raising an objection in opposition to the motion. Further, the court declined to adopt the plaintiff’s reasoning that as the plaintiff was not represented by an attorney, she did not have to present an expert affidavit or other legally competent evidence to refute the defendant’s motion. Thus, the trial court ruling was affirmed.
Speak to an Experienced Rochester Attorney
Surgical errors can cause serious and permanent injuries, and anyone who suffers harm at the hands of a surgeon has the right to pursue damages in a malpractice lawsuit. If you sustained injuries due to a negligently performed procedure, the experienced surgical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers can advise you of your options and help you to strive for the best outcome available under the circumstances surrounding your harm. You can reach us at 585-653-7343 or through the form online to set up a conference.