Proving liability for surgical malpractice can be difficult and many New York surgical malpractice cases are dismissed prior to going to trial. In sum, if defendants can establish that there is no genuine issue of fact as to whether they deviated from the applicable standard of care, they can prove they cannot be held liable for surgical malpractice as a matter of law. Recently, an appellate division of the Supreme Court of New York discussed what constitutes sufficient evidence of an issue of fact to deny a defendant’s motion for dismissal of a surgical malpractice claim. If you were harmed due to an inappropriately performed surgery, it is crucial to engage a seasoned Rochester surgical malpractice attorney regarding your potential claims.
Facts and Procedure of the Case
It is alleged that the defendant surgeon performed a thyroidectomy on the plaintiff in 2005, and a total thyroidectomy on the plaintiff in 2010. The plaintiff reportedly suffered damage to her laryngeal nerve due to the surgeries. She subsequently brought a surgical malpractice claim against the defendant surgeon and the two defendant medical centers, alleging that the centers were liable for the defendant surgeon’s conduct.
The defendants filed motions for summary judgment, which were denied. The defendants appealed. On appeal, the court modified the order to dismiss the defendant medical centers but affirmed the trial court’s denial of the defendant surgeon’s motion for summary judgment.
Evidence Sufficient to Establish a Genuine Issue of Material Fact
First, the defendant surgeon argued that he met his initial burden of proving he complied with the applicable standard of care in performing the subject surgery. Specifically, he argued that he submitted an affidavit stating that he did not deviate from the standard of care. The court noted that while a defendant surgeon may submit an affirmation in support of his or her motion for summary judgment, it must be specific, detailed, and must address each of the plaintiff’s factual claims to be sufficient to warrant a dismissal of the case.
Here, the court noted the defendant surgeon’s affidavit did not adequately dispute the plaintiff’s allegations regarding the damage to her laryngeal nerve. Thus, the court affirmed the trial court’s ruling.
The court also affirmed that the defendant surgeon failed to establish that he properly obtained the plaintiff’s informed consent prior to conducting the surgeries. Specifically, the court noted that the plaintiff’s deposition stated that the defendant surgeon did not fully inform her of the benefits, risks, and alternatives to the surgery.
Further, the court was not persuaded by the defendant surgeon’s contention that a reasonable and fully informed person would have proceeded with the surgery, noting that in his affirmation he stated that non-surgical options would have been appropriate as well. Thus, the court found that there was an issue of fact regarding whether the plaintiff would have undergone surgery if she was fully informed. As such, the court affirmed the trial court ruling.
Meet with a Capable Surgical Malpractice Attorney About Your Case
If a surgical procedure is not performed appropriately it can lead to significant and permanent injuries. If you were injured due to surgical malpractice you should consult a capable Rochester surgical malpractice attorney regarding your case and what evidence you need to recover damages. The zealous attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will aggressively seek any compensation you may be owed for your harm. We can be reached at 585-653-7343 or via our online form to schedule a confidential and free meeting regarding your potential claims.