Medical malpractice cases are fact-intensive and require both parties to offer proof as to whether the facts are sufficient to establish a breach of the applicable standard of care. If the court finds that under the facts of the case the defendant cannot be held liable as a matter of law, it may dismiss the plaintiff’s claims. In a recent orthopedic malpractice case ruled on by the Appellate Division of the Supreme Court of New York, the court explained what constitutes sufficient evidence to obtain a dismissal. If you were harmed due to orthopedic malpractice it is critical to engage an assertive Rochester orthopedic malpractice attorney to assist you in your pursuit of damages.
Factual Background of the Case
It is reported that the plaintiff first treated with the defendant orthopedic surgeon on January 18, 2012, for an ankle injury. The plaintiff returned to the defendant’s office on January 20th, at which time it was noted he had blisters on his ankle. At the second appointment, the defendant advised the plaintiff he was going on vacation but left the plaintiff his cell phone number so that the plaintiff could contact him if the symptoms worsened.
Allegedly, the plaintiff called the defendant within the next four days, advising he was in pain, had a fever, and had discolored blisters on his ankle. The plaintiff also sent the defendant a text message with a picture of his ankle, that showed the skin was blackening and had pus. On January 24ththe plaintiff presented to the emergency department of a nearby hospital, where he was admitted to the intensive care unit. He was diagnosed with compartment syndrome and cellulitis and underwent emergency surgery. The plaintiff subsequently filed an orthopedic malpractice case against the defendant. The defendant filed a motion for summary judgment, which the trial court denied. The defendant appealed.
Evidence Needed to Obtain a Dismissal
Under New York law, a defendant seeking dismissal of a medical malpractice case via summary judgment must establish that he or she did not depart from the applicable standard of care or that any departure did not cause the plaintiff’s alleged harm. The defendant’s burden of proof is only met if he or she addresses and refutes each allegation of malpractice in the plaintiff’s bill of particulars. If the defendant fails to meet this burden, his or her motion to dismiss must be denied, regardless of the sufficiency of any response filed by the plaintiff in opposition to the motion.
In the subject case, the court found that the defendant failed to establish that he was entitled to summary judgment as a matter of law. Specifically, the defendant’s expert affidavit was insufficient to prove that there were no issues of fact as to whether the defendant referred the plaintiff to the hospital in a timely manner, or whether any alleged departure from the standard of care caused the plaintiff’s injuries. Thus, the court affirmed the trial court ruling.
Meet with a Seasoned Attorney Regarding Your Case
Anyone seeking to recover compensation via an orthopedic malpractice claim must prove that an orthopedic surgeon provided inadequate care, causing harm. If you suffered injuries due to inappropriate care provided by an orthopedic surgeon you should meet with a seasoned Rochester orthopedic malpractice attorney regarding your case and what evidence you must produce to recover damages. The skilled attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers have the knowledge and experience needed to set forth a strong case to help you seek a favorable result. We can be reached via the form online or at 585-653-7343 to schedule a confidential and free meeting to discuss your case.