In medical malpractice cases in New York, the plaintiff is required to set forth a bill of particulars that explains in detail the manner in which the defendant care provider caused the plaintiff’s harm. In turn, the defendant bears the burden of refuting each claim set forth in the bill of particulars. If the defendant can successfully prove that he or she is not negligent, the case may be dismissed in its entirety. If the defendant fails to address all of the plaintiff’s allegations, however, the plaintiff will be permitted to proceed with his or her claims, as demonstrated in a recent surgical malpractice case ruled on by a New York appellate court. If you suffered injuries due to an improperly performed surgery, it is advisable to speak with a dependable Rochester surgical malpractice attorney to discuss what you must prove to recover damages.
The Plaintiff’s Care and the Pleadings in the Case
It is reported that the plaintiff underwent surgery at the defendant hospital. Several months later, she was diagnosed with a ventral hernia, which was later revealed to be an incisional hernia. The plaintiff ultimately filed a surgical malpractice lawsuit against the defendant, alleging, in part, that the surgery increased her risk of sustaining an incisional hernia, and that the defendant was negligent due to its failure to diagnose and treat the hernia in a timely manner. After discovery was completed, the defendant filed a motion for summary judgment. The trial court denied the motion, and the defendant appealed.
A Defendant’s Burden of Proof in Seeking a Dismissal of a Surgical Malpractice Case
Under New York law, to succeed on a medical malpractice claim, a plaintiff must establish that the defendant deviated from the applicable standard of care, and the deviation proximately caused the plaintiff harm. In turn, to succeed on a motion for summary judgment in a medical malpractice case, a defendant must establish that either there was no deviation, or the deviation did not cause the plaintiff’s alleged harm. If the defendant does not meet this burden, however, summary judgment will not be granted.
In the subject case, the court found that while the defendant’s expert report was adequate to establish that there was no error committed during the surgery, it failed to rebut the remainder of the plaintiff’s allegations. Specifically, it did not address whether the hernia could have been diagnosed at an earlier date or that the delay in diagnosing the hernia caused the plaintiff harm. As such, the court found that the defendant’s expert report was insufficient to establish that the defendant was entitled to judgment as a matter of law and affirmed the trial court ruling.
Speak with an Experienced Rochester Malpractice Attorney
If you were harmed by a negligently performed surgery, it is in your best interest to consult an experienced surgical malpractice attorney to discuss your harm and what claims you might be able to pursue to recover damages. The capable attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers are proficient at aiding injured parties in the pursuit of compensation, and will work tirelessly to help you seek a successful outcome. You can reach us at 585-653-7343 or through our online form to set up a confidential and free conference.