Rochester Medical Malpractice and Personal Injury Lawyer Blog

Published on: December 22, 2020

New York Court Discusses Liability for Medical Malpractice Committed by Independent Contractors

Many hospitals and medical facilities hire practitioners who work as independent contractors. While hospitals can be held vicariously liable for harm caused by their employees, a patient seeking to imposed liability on a care provider for injuries sustained during treatment by a non-employee must prove the person was acting as an agent of the provider. In a recent opinion, a New York court discussed the evidence needed to demonstrate ostensible or apparent agency in a case arising out of injuries sustained during treatment with an orthopedic therapist. If you were hurt by a careless therapist, you might be owed compensation, and you should speak to a skillful Rochester orthopedic malpractice attorney to assess your rights.

The Alleged Injury

It is reported that the plaintiff’s daughter was undergoing a therapy session at the defendant medical facility. During the session, she received treatment from the defendant therapist, an independent contractor. At some point, she fell off of a scooter and sustained injuries. The plaintiff then filed a lawsuit alleging medical malpractice claims against the defendants. Among other things, she alleged that the defendant facility should be held vicariously liable for the harm caused by the defendant independent contractor. The defendant facility filed a motion for summary judgment, which was denied. It then appealed.

Demonstrating Ostensible or Apparent Agency

Under New York law, a medical facility may be deemed liable for malpractice committed by its employees but will generally not be deemed liable for harm caused by an independent contractor, even if the facility is affiliated with the independent contractor. A facility may be held accountable for the harm caused by the independent contractor under a theory of apparent or ostensible agency, however.

Published on: December 15, 2020

New York Court Explains Res Ipsa Loquitur in Medical Malpractice Cases

by DeFrancisco & Falgiatano

Generally, a plaintiff injured by a reckless health care provider must produce expert testimony regarding the breach of the standard of care. In cases in which the harm suffered is clearly the result of negligence, though, the plaintiff may be able to argue that the doctrine of res ipsa loquitur, which means that evidence speaks for itself, applies and an expert opinion is not necessary. In a recent New York opinion in a matter involving the negligence of a proctologist, a court explained what a plaintiff must prove to show that res ipsa loquitur applies. If you were hurt because of a negligent proctologist, you could be owed damages, and you should consult a dedicated Rochester proctology malpractice attorney as soon as possible.

The Plaintiff’s Harm

It is reported that the defendant performed a colonoscopy on the plaintiff. During the procedure, the defendant repositioned the plaintiff, causing him to fall. The plaintiff injured his right shoulder as a result. He then filed a medical malpractice lawsuit against the defendant, alleging negligence claims. Following discovery, the defendant moved to have the plaintiff’s claims dismissed through summary judgment. The plaintiff objected to the motion, arguing that the doctrine of res ipsa loquitur applied, and therefore, he did not need to produce an expert opinion to prove liability. The court granted the defendant’s motion, and the plaintiff appealed.

Res Ipsa Loquitur in Medical Malpractice Cases

A plaintiff seeking to rely on the doctrine of res ipsa loquitur must show that the event that occurred was one that does not happen absent negligence and that the instrumentality that caused the harm suffered was within the exclusive control of the defendant. The plaintiff must also prove that the injury was not the result of his or her voluntary actions.

Published on: December 10, 2020

New York Court Discusses Evidence Demonstrating Negligence in a Medical Malpractice Case

by DeFrancisco & Falgiatano

In medical malpractice cases, the injured party must show that the health care provider deviated from what is considered the accepted practice of medicine. Thus, the person seeking damages must produce evidence demonstrating the standard of care. In a recent opinion, a New York court discussed what evidence is admissible in a medical malpractice case and how compelling the plaintiff’s evidence must be to show that the defendant caused the harm alleged in a matter arising out of surgical malpractice. If you suffered harm due to an error during a procedure, it is advisable to consult a skillful Rochester surgical malpractice attorney to discuss your claims.

The Injury and Subsequent Pleadings

Allegedly, the plaintiff underwent a surgical hernia repair in December 2013. The defendant performed the surgery. In March 2014, after experiencing difficulty eating and abdominal pain, the plaintiff was diagnosed with a disorder that caused stomach paralysis and made it difficult to digest food. The plaintiff then filed a medical malpractice lawsuit against the defendant, arguing his negligent performance of the December 2013 procedure caused the plaintiff’s harm. A trial was conducted, and the jury ruled in favor of the plaintiff, awarding him $500,000. The defendant appealed, arguing that certain evidence was inappropriately admitted at trial and that the court improperly instructed the jury.

Evidence Demonstrating Negligence in a Medical Malpractice Case

On appeal, the court noted that while the defendant raised a general objection to the admission of a manual into evidence at trial, he failed to raise the specific objection necessary for the court to consider the matter on appeal. Regardless, the court declined to adopt the defendant’s reasoning that the manual was used to demonstrate the standard of care.

Published on: December 6, 2020

New York Court Denies Motion to Amend a Medical Malpractice Complaint as Untimely

by DeFrancisco & Falgiatano

Under New York law, even if a person harmed by negligent medical care has a legitimate claim for damages, procedural errors may prevent the person from recovering compensation. For example, it is imperative that any medical malpractice claim is filed within two and a half years of the alleged date of harm; otherwise, it may be deemed untimely and dismissed. There are some exceptions to the general rule, though, such as when claims are permitted under the relation-back doctrine. Recently, a New York opinion discussed what a plaintiff must prove to show that the relation-back doctrine applies in a case arising out of primary care malpractice. If you were hurt due to negligent treatment in a primary care setting, you should confer with a diligent Rochester primary care malpractice attorney as soon as possible to protect your rights.

Procedural History of the Case

It is reported that the plaintiff’s decedent treated with the defendant primary care physicians over a span of four days leading up to her death. After the plaintiff’s decedent’s untimely demise, the plaintiff filed a lawsuit, alleging the defendants’ medical malpractice led to the decedent’s death. The facility that employed the defendants at the time of the alleged harm accepted service on behalf of one of the defendants but not the other, as he was no longer employed there.

It is alleged that during the course of discovery, the plaintiff’s attorney realized he named the incorrect individual defendants. He then moved to discontinue the claims against the defendants and name the facility where they worked as defendants. As the statute of limitations had passed, he argued that the relation-back doctrine applied. The court denied his motion, and he appealed.

Published on: December 3, 2020

New York Court Affirms Dismissal of Malpractice Case Due to Inadequate Expert Affidavit

by DeFrancisco & Falgiatano

In New York, it is well established that a patient harmed by incompetent medical care must meet a specific burden of proof to recover damages. In other words, a plaintiff in a medical malpractice case must produce evidence that is sufficient to show that a doctor failed to comply with the accepted practice of medicine. The plaintiff also has to prove that the failure directly caused the plaintiff’s harm. Usually, this is accomplished via expert reports. Even if a plaintiff produces an affidavit from an expert, though, it still may not be sufficient to demonstrate liability. This was illustrated in a recent ruling in an emergency room malpractice case in which the plaintiff’s claims were dismissed due to an inadequate expert report. If you suffered harm because of the neglectful care you received in an emergency room, it is smart to speak to a skillful Rochester emergency room malpractice attorney to assess your options.

History of the Case

It is reported that the plaintiff’s decedent visited the emergency department of the defendant hospital, where he was treated by the defendant doctors. The reason the decedent sought medical treatment was not disclosed, but he ultimately lost his life while at the hospital. The plaintiff then commenced a medical malpractice lawsuit against the defendants, alleging that their failure to provide the decedent with competent care led to his demise. The defendants moved to have the plaintiff’s claims dismissed via summary judgment, and in support of their motion, produced an expert affidavit. The plaintiff filed a response in opposition to the defendants’ motion and set forth her own expert affidavit. The court found the plaintiff’s affidavit lacking and granted the defendants’ motion. The plaintiff then filed an appeal.

Conflicting Expert Reports in Medical Malpractice Cases

On appeal, the court explained that a plaintiff in a medical malpractice action must produce proof that the defendant doctor deviated from the standards of practice that are accepted in the community and that the departure proximately caused the plaintiff’s harm. Therefore, a defendant moving for summary judgment must establish that the evidence, when taken at face value, does not show a departure from the standard of care or that any departure that occurred did not lead to the plaintiff’s losses.

Published on: November 24, 2020

New York Court Discusses the Sufficiency of Expert Reports in an Orthopedic Malpractice Case

by DeFrancisco & Falgiatano

In many medical malpractice cases, the plaintiff will assert multiple claims against the defendant. Thus, a defendant that refutes liability must address each claim via an expert affidavit, and the plaintiff must thoroughly demonstrate the flaws in the defendant’s expert’s opinion via a counter expert affidavit. In other words, it is the sufficiency of each party’s expert report that determines what claims, if any, will proceed to trial. The satisfactoriness of expert reports was the topic of a recent New York ruling in a matter in which the plaintiff brought orthopedic malpractice claims against the defendants. If you were hurt by a neglectful orthopedic surgeon, it is wise to consult a Rochester orthopedic malpractice attorney to discuss your rights.

The Plaintiff’s Care and Subsequent Claims

It is alleged that the plaintiff treated with the defendants for issues with his knee. He ultimately underwent reconstructive knee surgery, which was performed by the defendants. Following the surgery, he experienced complications, and he ultimately needed to undergo a below the knee amputation.

Reportedly, the plaintiff filed a malpractice lawsuit against the defendants, alleging medical negligence and failure to obtain informed consent claims. Following discovery, the defendants moved to have both claims dismissed via summary judgment. The court denied the defendants’ motion, after which they appealed.

Published on: November 17, 2020

New York Court Discusses a Hospital’s Vicarious Liability for a Doctor’s Medical Malpractice

by DeFrancisco & Falgiatano

Typically, when a patient seeks treatment in a hospital, the doctors and nurses that provide the patient with care will be employed by the hospital. Thus, if they perform their duties improperly, the hospital may be deemed vicariously liable for their acts. In some instances, however, medical staff members working in a hospital are independent contractors, not employees, and the question of whether a hospital can be held accountable for their incompetence becomes more complicated. The imposition of vicarious liability on a hospital for the acts of an independent contractor was the subject of a recent opinion issued by a New York court. If you were injured by an incompetent medical provider while you were in a hospital, it is advisable to consult a Rochester hospital malpractice attorney to assess your possible claims.

The Patient’s Care and Subsequent Claims

Allegedly, the plaintiff’s decedent sought admission to the defendant hospital for a psychiatric evaluation and treatment, as he was experiencing suicidal ideation. The defendant physician treated the plaintiff’s decedent throughout the course of his admission. Tragically, however, he died by suicide while he was still receiving inpatient care.

It is reported that the plaintiff, who was the wife of the decedent, filed medical malpractice claims against the defendants, alleging their failure to provide proper care led to the decedent’s untimely death. The defendant hospital filed a motion for summary judgment, arguing in part that it could not be deemed vicariously liable for the acts of the defendant doctor because he was an independent contractor. The court denied the defendant hospital’s motion, and it appealed.

Published on: November 10, 2020

New York Court Discusses Continuous Treatment Doctrine in Failure to Diagnose Case

by DeFrancisco & Falgiatano

A prompt and accurate diagnosis is an essential element of competent medical care. Thus, a doctor that fails to diagnose a plaintiff in a timely manner may be liable for medical malpractice. If a patient does not promptly pursue claims against a doctor, though, the right to recover damages may be waived unless an exception, such as the continuous treatment doctrine, applies. Recently, a New York court issued a ruling in which it discussed whether the continuous treatment doctrine protected the plaintiff’s claims from being dismissed as untimely. If you sustained injuries due to a delayed or absent diagnosis, you might be entitled to damages and should speak to a diligent Rochester medical malpractice attorney as soon as possible.

The Plaintiff’s Injuries and Claims

It is reported that the plaintiff was admitted to the defendant medical center, where he was treated by the defendant attending physician. He was diagnosed with blood clots and deep venous thrombosis in his extremities and ultimately required above-the-knee amputations of both legs. After his amputations, the plaintiff continued to treat with the defendants for three years, undergoing physical therapy and other postoperative care.

Allegedly, the plaintiff then filed a medical malpractice lawsuit against the defendants, alleging their failure to properly diagnose and treat his conditions resulted in the need for amputations. The defendants moved for dismissal of the plaintiff’s claims, arguing they were barred by the statute of limitations. The plaintiff opposed the defendants’ motion, stating that the continuous treatment doctrine applied and, therefore, his claims were timely.

Published on: November 7, 2020

Court Discusses Avoiding Dismissal in Medical Malpractice Cases in New York

by DeFrancisco & Falgiatano

In many medical malpractice cases, the defendant will seek to have the claims against it dismissed prior to trial. Even if a defendant demonstrates that it did not depart from the accepted practice of medicine, though, a plaintiff can avoid dismissal by producing evidence sufficient to refute the defendant’s assertions. The standard of review for determining whether to dismiss medical negligence claims in New York was recently discussed in a surgical malpractice case in which the court found sufficient factual disputes existed to proceed to trial. If you were hurt by the acts of a negligent surgeon, it is wise to talk to a dedicated Rochester surgical malpractice attorney to assess what evidence you must produce to demonstrate liability.

Procedural History

Allegedly, the defendant performed a surgical procedure on the plaintiff’s right shoulder. The plaintiff suffered complications after the surgery and ultimately needed to undergo a second procedure. He then filed a medical malpractice lawsuit against the defendant, asserting that the defendant’s negligence caused him to suffer physical and financial harm. The defendant moved to have the plaintiff’s case dismissed by summary judgment. The court denied the defendant’s motion, and the defendant appealed.

Avoiding Dismissal in Medical Malpractice Cases

In New York, a defendant doctor seeking summary judgment in a medical malpractice case has to make a prima facie showing that it did not depart from the accepted and good practice of medicine or that the plaintiff was not harmed by any alleged departure. If the defendant meets this burden, the plaintiff must then set forth evidentiary materials or facts in opposition to the defendant’s position to demonstrate the existence of an issue of fact that must be resolved via trial.

Published on: November 3, 2020

New York Court Affirms Dismissal of Ophthalmology Malpractice Case for Failure to Prosecute

by DeFrancisco & Falgiatano

Under New York law, people injured by incompetent medical care must pursue claims for damages within a certain timeframe, or they may waive the right to recover compensation. In other words, a patient must not only file a medical malpractice lawsuit within the statute of limitations but must also actively prosecute the claim once it is filed; otherwise, the claim may be dismissed. This was illustrated in a recent ophthalmology malpractice case in which the plaintiff’s repeated delays in litigating her claims resulted in the dismissal of her lawsuit. If you suffered injuries due to negligent eye care, it is advisable to speak to a knowledgeable Rochester ophthalmology malpractice attorney regarding your rights.

The Plaintiff’s Claims

Reportedly, the plaintiff underwent surgical placement of an intraocular lens, which was performed by the defendant ophthalmologist. She suffered complications during the procedure that led to hemorrhaging and the permanent loss of vision in her right eye. She then filed a malpractice lawsuit against the defendant, alleging his failure to direct her to stop taking prescription blood thinners prior to the procedure caused her to suffer harm.

Allegedly, in January 2014, the defendant filed an answer to the plaintiff’s complaint and served the plaintiff with a demand for a bill of particulars and discovery. Plaintiff initially did not respond, but ultimately sat for a deposition. No other action was taken to further the case, however. In April 2018, the defendant served the plaintiff with a notice to resume prosecution, advising the plaintiff he would move to dismiss her case if she did not file a note of issue within 90 days. The plaintiff did not comply with the demand, and her case was dismissed, after which she appealed.