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New York Court Explains Sufficiency of Evidence to Dismiss a Plaintiff’s Surgical Malpractice Case

In a New York surgical malpractice case, the defendant surgeon can avoid liability if he or she can prove that he or she did not depart from the standard of care, or that any departure did not cause the alleged harm. The defendant surgeon must provide clear and sufficient evidence in support of his or her defense, however, otherwise the injured party will be permitted to pursue his or her claim against the defendant surgeon. In  a recent New York appellate case, the court explained what constitutes sufficient evidence to deny a defendant surgeon’s motion to dismiss a plaintiff’s claim. If you sustained harm because of a surgeon’s negligence you should meet with a zealous Rochester surgical malpractice attorney to discuss your harm and what damages you may be able to recover.

Facts Regarding the Plaintiff’s Treatment

Allegedly, in 2015 the plaintiff visited the defendant surgeon, to undergo an elective cosmetic procedure that involved transferring fat to areas of the plaintiff’s face. One of the known risks of the procedure was blindness, caused by fat entering a blood vessel and migrating to the eyes. When the plaintiff awoke from her anesthesia following the procedure, she experienced pain in her left eye and diminished vision. She was transported to an ophthalmologist, who noted there was fat in the vessels of her retina. The following day, the plaintiff visited a neuro-ophthalmologist, who diagnosed her with a loss of vision due to a central retinal artery occlusion secondary to a fat embolism.

It is reported that the plaintiff then filed a medical malpractice lawsuit against the defendant, alleging that his negligence in performing the procedure caused her to suffer the permanent loss of vision in her left eye. Specifically, the plaintiff alleged that the defendant failed to properly aspirate during the fat administration. The defendant filed a motion for summary judgment, arguing he was prima facie entitled to judgment in his favor as a matter of law. The court denied the defendant’s motion, and he appealed.

Evidence Sufficient to Establish the Defendant’s Prima Facie Case

In a New York medical malpractice case, when a defendant fails to make a prima facie showing that he or she is entitled to judgment as a matter of law, the court will deny his or her motion for summary judgment, regardless of the sufficiency of the plaintiff’s proofs in opposition. In the subject case, the appellate court held that the trial court properly ruled that the defendant did not produced sufficient evidence to meet his burden of proof. Specifically, while the defendant described the aspiration technique generally in his deposition, he did not testify that he used the technique during the plaintiff’s procedure. Rather, he stated he thought he used the procedure. As such, the court found that the defendant’s evidence was insufficient to establish a prima facie case that he used the proper technique in treating the plaintiff.

Speak with an Experienced Surgical Malpractice Attorney About Your Case

All surgeons are required to comport with the applicable standard of care, regardless of how minor or noninvasive the procedure may be, as any deviation from the standard of care can result in significant harm. If you suffered an injury because of surgical malpractice, you should speak with an experienced Rochester surgical malpractice attorney to discuss the circumstances surrounding your harm and what damages you may be owed. The attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers are adept at assisting parties injured by surgical malpractice seek recourse for their damages. You can reach us at 833-200-2000 or through the form online to set up a confidential and free consultation to discuss your case.


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