Rochester Medical Malpractice and Personal Injury Lawyer Blog

Published on: May 6, 2020

New York Court Discusses Dismissal of a Medical Malpractice Case for Failure to Comply with Discovery Orders

When a patient who suffers harm due to incompetent medical care wishes to pursue damages in a civil lawsuit, it is essential that the patient file the lawsuit within the time constraints set forth under the law. Additionally, as demonstrated in a recent New York appellate orthopedic malpractice case, a plaintiff seeking damages for medical malpractice must move his or her case forward at a reasonable pace, otherwise, the case may be dismissed. If you were injured by careless orthopedic care, it is in your best interest to consult a skillful Rochester orthopedic malpractice attorney regarding what measures you can take to protect your interests.

Factual and Procedural Background of the Case

It is alleged that the plaintiff filed a medical malpractice lawsuit against the defendant hospital and defendant orthopedic surgeon, alleging that she suffered harm due to a negligently performed orthopedic surgery. The plaintiff repeatedly refused to submit to a deposition, and in response, the defendants filed motions to compel the plaintiff to appear for her deposition, which the court granted. Ultimately, the defendants filed a motion to dismiss the plaintiff’s complaint if she did not appear for a deposition by set date. The court issued a conditional order of dismissal, stating that if the plaintiff did not appear for her deposition, her case would be dismissed. The plaintiff did not appear, after which she filed a motion to renew the defendants’ motions. The court denied the plaintiff’s motion, and the plaintiff appealed.

Dismissal for Failing to Comply with Discovery Orders in a Medical Malpractice Case

Upon review, the appellate court found that the trial court properly exercised its discretion by issuing a conditional order of dismissal, given the plaintiff’s record of failing to comply with court orders that required her to appear for her deposition. The court was not persuaded by the plaintiff’s argument that the defendants’ motions should be renewed because her behavior was not contumacious or willful, explaining that by issuing a conditional order, the trial court relieved itself of the need to analyze whether the plaintiff willfully resisted submitting to her deposition.

Published on: April 30, 2020

New York Court Discusses Medical Malpractice Arising Out of Lack of Informed Consent

by DeFrancisco & Falgiatano

Many surgical procedures have potential side effects, some of which may be life-altering. Thus, before a patient commits to undergo a surgical procedure, the physician performing the procedure must advise the patient of the known risks of harm, so that the patient can make an informed decision as to whether he or she wants to proceed with the surgery. Thus, if a doctor fails to properly advise a plaintiff of a known risk of harm associated with a procedure, the doctor may be liable for malpractice. This was discussed by a New York appellate court case in which the plaintiff suffered urinary incontinence following a hysterectomy. If you suffered harm due to a negligent gynecologist, it is wise to consult a proficient Rochester gynecology malpractice attorney regarding your potential damages.

Factual Background

Allegedly, the plaintiff underwent a vaginal hysterectomy that was performed by the defendant. Following the hysterectomy, she began to experience urinary incontinence. She subsequently filed a medical malpractice lawsuit against the defendant, alleging that the surgery was unnecessary and that the defendant failed to obtain her informed consent prior to performing the surgery. The defendant filed a motion for summary judgment, which was denied by the court. The defendant subsequently appealed, but upon review, the appellate court affirmed the trial court ruling.

Medical Malpractice Arising Out of Lack of Informed Consent

In its analysis, the court noted that the defendant made a prima facie showing that he was entitled to dismissal of the claims against him as a matter of law, by producing an expert report that stated that the plaintiff’s urinary incontinence was a consequence of chronic interstitial cystitis, which the plaintiff was diagnosed with following the procedure. The court noted, however, that in opposition to the defendant’s report, the plaintiff set forth an expert report opining that urinary incontinence was a well-known consequence of vaginal hysterectomies and that the plaintiff’s symptoms began shortly after the procedure.

Published on: April 28, 2020

New York Court Discusses Evidence Needed to Survive Summary Judgment in a Medical Malpractice Case

by DeFrancisco & Falgiatano

In most medical malpractice cases, whether the defendant or plaintiff is ultimately successful largely hinges on the credibility of their respective experts. Specifically, many plaintiff’s cases are dismissed prior to reaching trial because the plaintiff cannot produce sufficient evidence via expert testimony to establish that there is a dispute as to the defendant’s liability. In cases in which experts disagree, however, the decision of whether the defendant provider committed medical malpractice ultimately rests with the jury, as discussed in a recent urology case decided by a New York court. If you sustained harm due to incompetent care rendered by a urologist, it is advisable to speak with a skillful Rochester urology malpractice attorney to discuss what evidence you must set forth to establish liability.

Facts of the Case

It is alleged that the plaintiff, who was suffering from prostate cancer, underwent a prostatectomy that was performed at the defendant hospital, by the defendant urologist. Following the removal of the plaintiff’s prostate, his urethra was reattached to the neck of his bladder, and a Foley catheter was placed to allow the urethra to heal and urine to drain. Three days after the plaintiff was discharged from the defendant hospital, he began to feel pain and reported to the emergency room. Upon examination, it was discovered by the defendant doctor that the plaintiff was retaining urine. The catheter was removed by the defendant nurse, and a new catheter was inserted. A CT scan was conducted that showed the catheter was in the bladder, and the plaintiff was again discharged.

Reportedly, the plaintiff had a follow-up appointment the next day, during which he reported continued pain. A second CT scan was ordered that revealed the plaintiff had a perforated rectum and that he had developed a fistula. He subsequently underwent an emergency laparotomy and loop colostomy. He then filed a lawsuit against the defendants, alleging medical malpractice. In turn, each of the defendants filed motions for summary judgment, assigning blame to the other defendants. The court granted the motions of the defendant urologist and the defendant hospital, after which the plaintiff appealed.

Published on: April 20, 2020

New York Court Dismisses Hospital Malpractice Case Due to Insufficient Evidence

by DeFrancisco & Falgiatano

In many instances in which a person harmed by negligent medical care pursues damages in a medical malpractice lawsuit, the defendant healthcare provider will attempt to refute liability by arguing that the person’s harm was not proximately caused by the defendant’s acts. In such cases, if the plaintiff does not produce sufficient evidence to refute the defendant’s position, the plaintiff’s case may be dismissed. This was demonstrated in a recent hospital malpractice case in which the court dismissed the plaintiff’s case via summary judgment. If you or a family member suffered harm due as a result of negligent care rendered in a hospital, it is in your best interest to speak with a proficient Rochester hospital malpractice attorney regarding what you must prove to recover damages.

Factual Background

Reportedly, the plaintiff’s decedent was admitted to the defendant hospital for treatment. The decedent developed a sacral ulcer, which did not heal. Following the decedent’s death, the plaintiff instituted a medical malpractice lawsuit against the defendant, arguing that the defendant departed from the applicable standard of care in treating the decedent’s sacral ulcer, thereby causing the decedent to suffer harm. The defendant moved to have the plaintiff’s case dismissed via summary judgment, but the trial court denied the defendant’s motion. The defendant subsequently appealed, and on appeal, the appellate court overturned the trial court ruling, dismissing the plaintiff’s claims.

Avoiding Dismissal Via Summary Judgment in a Hospital Malpractice Case

On appeal, the appellate court noted that the defendant set forth a prima facie case that it was entitled to judgment as a matter of law, as required to obtain a dismissal via summary judgment. Specifically, the defendant produced an affirmation from a medical expert that stated that the defendant’s treatment of the plaintiff’s decedent’s sacral ulcer comported with accepted and good practice. Further, the affirmation stated that the failure of the plaintiff’s decedent’s ulcer to heal was caused by the decedent’s pre-existing conditions, rather than any acts or omissions on behalf of the defendant.

Published on: April 14, 2020

Court Discusses Approval of Settlements in New York Birth Injury Cases

by DeFrancisco & Falgiatano

Medical malpractice lawsuits arising out of birth injuries can be complicated and costly to try to verdict, and the outcomes of such cases can be unpredictable, even if the evidence weighs strongly in favor of the plaintiff. Thus, in many instances, it is prudent for a plaintiff to settle with the defendant prior to trial. Settlements in birth injury cases differ from settlements in other cases; however, in that a court must review and approve the proposed settlement, to protect the interests of the injured child. In a recent case, the United States District Court for the Southern District of New York discussed the factors weighed in evaluating settlements in birth injury cases. If your child was injured at birth because of incompetent medical care, it is prudent to speak with a seasoned Rochester birth injury attorney to discuss what compensation you may be able to recover.

Factual and Procedural History

It is alleged that the plaintiff was scheduled to deliver her child at the defendant hospital. Due to difficulties encountered during the delivery, however, she was transferred to a second hospital where she underwent an emergency C-section. Her daughter nonetheless experienced brain damage which was caused by a lack of oxygen during delivery. As such, the plaintiff filed a lawsuit against the doctors and nurses involved in her treatment. Discovery was conducted, and some defendants were dismissed via stipulation and ultimately, the plaintiff and the remaining defendants came to a settlement agreement. The court then held a conference to determine the fairness of the settlement to the plaintiff’s child.

Approval of Settlements in Birth Injury Cases

The court noted that Local Civil Rule 83.2 governed settlements on behalf of infants. Specifically, the rule requires a proposed settlement to include an affidavit from the infant’s representative that sets forth the facts out of which the lawsuit arose, the extent and nature of the damages suffered, the proposed terms of the settlement agreement, and the manner in which the settlement will be distributed, and any other information that is pertinent. Additionally, the attorney for the plaintiff must provide an affidavit explaining his or her reasons for recommending the settlement, and describing the services he or she rendered to the plaintiff.

Published on: April 4, 2020

New York Court Discusses Establishing Proximate Cause in a Failure to Diagnosis Case

by DeFrancisco & Falgiatano

In any New York medical malpractice case, the plaintiff must not only establish that the defendant breached the standard of care, but also that the breach proximately caused the plaintiff’s harm. Recently, in a case filed in the United States District Court for the Southern District of New York in which the plaintiff alleged the defendant failed to diagnose the plaintiff’s decedent’s lung cancer for ten months, the court discussed what constitutes sufficient evidence to demonstrate that a delayed diagnosis caused a plaintiff’s damages. If you or someone you loved suffered harm due to a delayed diagnosis, it is in your best interest to consult a dedicated Rochester medical malpractice attorney regarding what damages you may be able to recover.

Facts Regarding the Plaintiff’s

It is alleged that the plaintiff’s decedent reported to the defendant hospital with complaints of chest pain. X-rays were taken and reviewed by the defendant physician, who noted abnormalities but took no further action. Ten months later, the defendant was admitted to the defendant hospital with complaints of weight loss, difficulty breathing, and a sore throat. Additional diagnostic tests were conducted, and the decedent was diagnosed with lung cancer. He ultimately succumbed to his illness, and the plaintiff filed a medical malpractice lawsuit against the defendants under the Federal Tort Claims Act, arguing the failure to diagnose the decedent resulted in harm. The defendants conceded that they owed a duty to the decedent and that they breached the duty by failing to diagnose the decedent’s lung cancer for ten months, but denied that it was the cause of plaintiff’s death. A bench trial was held, after which the court found in favor of the plaintiff.

Proving Proximate Cause in a Failure to Diagnose Case

To prove proximate causation, a plaintiff must show that the defendant’s departure from the standard of care substantially contributed to the plaintiff’s injuries. In cases in which the plaintiff alleges that the defendant departed from the standard of care by delaying in diagnosing a patient may establish proximate cause by showing that the defendant diminished the patient’s chance of a better outcome, or that the defendant increased the patient’s injury.

Published on: March 27, 2020

New York Court Explains Grounds for Denying a Motion for Substitution in a Medical Malpractice Case

by DeFrancisco & Falgiatano

It is not uncommon for a plaintiff in a medical malpractice case to pass away prior to the resolution of the case. A plaintiff’s claims are not extinguished merely because a plaintiff dies, however. Instead, the plaintiff’s estate generally has the right to pursue claims on behalf of the plaintiff’s beneficiaries and can substitute another party as the plaintiff. It is important for interested parties to act promptly following a plaintiff’s death, however, as a delay can result in a dismissal of the claims altogether, as demonstrated in a recent hospital malpractice case. If you or a loved one sustained injuries due to negligent care in a hospital, it is wise to speak to a trusted Rochester hospital malpractice attorney regarding what claims you may be able to pursue.

Facts of the Case

Allegedly, in 2005 the plaintiff’s decedent, who had Stage IV lung cancer, was admitted to the defendant hospital after she fell out of her wheelchair and struck her head. During her admission she was administered an excessive amount of Dilaudid, which the plaintiff averred lead to the decedent’s death. In 2007, the plaintiff, who was the decedent’s husband and the administrator of her estate, filed a medical malpractice lawsuit against the defendant. In 2011, the case was marked disposed of due to the plaintiff’s failure to file a note of issue, and in 2013, the plaintiff died.

It is reported that in 2017, the plaintiff’s attorney advised the defendant’s attorney that the plaintiff died. The defendant then moved to dismiss the complaint due to the plaintiff’s failure to substitute a new plaintiff, and the plaintiff’s attorney filed a cross-motion to substitute the administrator of the plaintiff’s estate as the new plaintiff. The court granted the defendant’s motion and denied the plaintiff’s, after which the plaintiff appealed.

Published on: March 27, 2020

New York Court Discusses Liability of Hospitals and Residents for Surgical Errors

by DeFrancisco & Falgiatano

In many instances, determining who may be liable for harm caused by negligent medical care may be unexpectedly complicated. For example, even if multiple physicians improperly perform a surgical procedure in a hospital, whether each physician or the hospital may be held liable depends on numerous factors. This was discussed in a recent New York ophthalmology malpractice case, in which the court determined that neither a resident that took part in a negligently performed surgery nor the hospital where it was performed could be held liable for the plaintiff’s alleged harm. If you were injured by negligent care provided by an ophthalmologist, it is in your best interest to speak with a vigilant Rochester ophthalmology malpractice attorney regarding who may be liable for your harm.

History of the Case

Allegedly, the plaintiff treated at the defendant hospital in June 2013, where he underwent a surgical procedure to remove cataracts. The surgery was performed by the defendant attending physician, with the assistance of the defendant resident. The plaintiff ultimately filed a medical malpractice lawsuit, alleging the surgery was improperly performed, resulting in an occlusion of his central retinal vein. The defendant hospital and defendant resident filed motions for summary judgment, which the court granted. The plaintiff appealed.

Liability of Residents and Hospitals for Medical Errors

Under New York law, a resident who does not exercise independent medical judgment but merely assists a doctor during a procedure, cannot be held liable for any medical malpractice that occurs during the procedure. There is an exception, however, for cases in which the doctor’s guidance so drastically departed from normal practice that the resident should be held accountable for failing to intervene. In the subject case, the court noted that both the testimony of the parties and the medical records established that the defendant physician had complete control over the diagnosis of the plaintiff and the surgery, including the surgical approach. Further, the defendants demonstrated that the defendant physician did not so greatly depart from the standard of care so as to require the defendant resident to intervene.

Published on: March 21, 2020

New York Court Discusses Medical Malpractice Cases Involving Claims of Negligence and Failure to Obtain Consent

by DeFrancisco & Falgiatano

It is not uncommon for a plaintiff harmed by negligent medical care to name multiple defendants or set forth more than one claim of medical malpractice. For example, a plaintiff may allege a defendant is liable for providing negligent care and for failing to obtain informed consent. Simply because a plaintiff has sufficient evidence to prove one claim does not mean he or she will be able to succeed on all claims, as demonstrated in a recent New York case in which the appellate court affirmed the trial court’s dismissal of a motion for summary judgment on a negligence claim against a hospital, but reversed with regard to a failure to obtain informed consent claim. If you sustained damages due to inadequate care you received in a hospital, it is advisable to meet with a knowledgeable Rochester hospital malpractice attorney to discuss your potential claims.

History of the Case

It is reported that the plaintiff’s decedent visited the defendant hospital in February 2014 with multiple complaints. He ultimately died, after which his family filed a wrongful death lawsuit against the defendant hospital and defendant practitioner, alleging medical malpractice and failure to obtain informed consent. The defendants moved to have the plaintiff’s case dismissed via summary judgment. The court denied the defendant’s motion, and the defendants appealed.

Sufficient Evidence to Sustain Medical Malpractice Claims

On appeal, the court explained that a defendant in a medical malpractice case must establish the lack of any material issues of fact with respect to at least one of the elements of a medical malpractice claim. Specifically, the defendant must either demonstrate that there is no factual dispute as to whether the defendant departed from the applicable standard of care, or as to whether any alleged departure was the proximate cause of the plaintiff’s harm. If the defendant sets forth evidence that no factual dispute exists as to both elements, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the deviation and to causation elements.

Published on: March 12, 2020

Court Discusses Physicians’ Duties In Medical Malpractice Cases in New York

by DeFrancisco & Falgiatano

Under New York law, a plaintiff alleging medical malpractice must establish that a treating medical provider breached a duty the provider owed the plaintiff. Specifically, the plaintiff must show that the medical provider deviated from accepted medical practice. In other words, a provider cannot be held liable for medical malpractice for failing to undertake acts not required by the standard of care. This was discussed in a recent case decided by a New York appellate court, in which the plaintiff alleged a physician that treated him during an involuntary confinement committed malpractice by failing to review his criminal history. If you suffered harm due to negligent medical care, it is prudent to seek the advice of a skillful Rochester medical malpractice attorney regarding whether you may have a viable claim.

Factual Background of the Case

It is alleged that in 1983 the plaintiff was indicted for multiple crimes, including burglary and sodomizing a child. He pleaded guilty to the burglary charge and was sentenced to eight to sixteen years imprisonment. He served thirteen years in prison, and during his imprisonment was admitted to a psychiatric hospital numerous times. Following his release from prison, he was retained in a state mental health facility for six years. After his eventual release, he filed multiple claims against the State, including medical malpractice.

Reportedly, the basis of the plaintiff’s medical malpractice claim was the assertion that his treatment arose out of the belief that he plead guilty to sodomy, even though he did not. He further alleged that the treatment he received based on this mistaken belief caused him to suffer anxiety and denied him certain privileges. The court entered a judgment in favor of the defendant following a trial. The plaintiff then appealed.