Rochester Medical Malpractice and Personal Injury Lawyer Blog

Stroke Victim May Proceed with Neurological Malpractice Claim Against Upstate New York Doctors and Hospitals

Published on: November 1, 2017 | By DeFrancisco & Falgiatano

According to the Centers for Disease Control and Prevention, stroke ranks as the fifth-most likely cause of death in the United States and causes a permanent disability in countless others. Stroke is treatable, however, but it’s absolutely necessary if someone is experiencing a stroke that they seek immediate care from a specialist like a neurologist. Unfortunately, in a New York neurology malpractice case, D’Orta v. Margaretville Mem. Hosp., the plaintiff alleged that the wait time for treatment of his stroke led to significant disabilities that could have been avoided if the medical professionals had not acted negligently.The plaintiff was playing cards with his friends in the early morning hours when he collapsed on the floor. The plaintiff had difficulty speaking, his face’s right side drooped, and he lost the use of his hand. His fiancee transported the plaintiff to a local hospital, where he arrived at 2:16 a.m. His collapse occurred an hour earlier, at 1:16 a.m. A physician at the local hospital, a defendant in the lawsuit, advised the plaintiff that he should be transported to a regional hospital with better resources to care for the plaintiff. The plaintiff was transferred to the other hospital and arrived at 4:52 a.m. The hospital consulted with a neurologist about administering TPA, a drug that can dissolve clots in certain stroke patients. However, the neurologist concluded that the plaintiff’s stroke was too severe, and too much time had passed to administer the drug.

The plaintiff named the hospitals and the physicians who provided care, including the neurologist, as defendants in a neurology malpractice lawsuit. The lawsuit alleged that the defendants committed malpractice because they did not administer TPA because the transfer to the second hospital was allegedly not timely. The defendants filed a motion for summary judgment, which the lower court denied, and the defendants appealed the decision.

Defendant Invokes New York Education and Public Health Laws’ Privileges to Prevent Discovery of Medical Records in New York Malpractice Case

Published on: October 30, 2017 | By DeFrancisco & Falgiatano

The New York Appellate Division, Third Division, analyzed, in a recent decision, the ability of defendants in New York medical malpractice lawsuits to assert statutory privileges during the discovery process. The court upheld the trial court’s ruling that the plaintiff’s discovery request was overly broad and vague, and therefore, the defendants did not have to disclose the information requested. The court relied on the analysis in a seminal case on the subject, Stalker v. Abraham, which outlines the statutory requirements of the privilege and the burden on defendants to prove its applicability.

When available, defendants often invoke the prohibitions on disclosure contained in the New York Education Law and the Public Health Law in tandem. These provisions are part of a policy to encourage open discussions with physicians about the credentialing process. The idea is that if the discussions are discoverable in litigation, physicians would not speak as candidly during these assessments. The hospital bears the burden of establishing the availability of the privilege. The hospital must show the following elements: (i) the hospital has a review procedure, and (ii) the information for which the privilege is asserted was obtained in connection with that review procedure. Without the protection of the privilege, any information the hospital has maintained related to a physician’s alleged negligence is generally relevant and subject to disclosure.

The defendant in Stalker, to support its assertion of privilege, submitted an affidavit from a medical credentialing specialist. She stated that the information requested would only be available through the credentialing process. She further stated that the purpose for the hospital’s credentialing process was to comply with any and all legal obligations that require that hospitals have established procedures in place to reduce medical malpractice. Moreover, it was in the specialist’s opinion that all of the information requested by the plaintiff was the sort of information gathered through peer review, credentialing, and quality assurance processes.

Anesthesia Error Claim Dismissed on Appeal After Plaintiff Fails to Produce Expert Affidavit

Published on: October 23, 2017 | By DeFrancisco & Falgiatano

New York anesthesia error cases are disconcertingly common. They arise from a variety of fact patterns, including the administration of too much or too little of an anesthetic, a delay in delivering anesthesia, or a failure to provide proper instructions to a patient before administering anesthesia. The effect on a patient of an anesthesia error could be discomfort, injury, or death.

When a woman died after experiencing heart problems following treatment in a hospital, her husband filed a medical malpractice lawsuit. Prior to commencing the lawsuit, the husband requested medical records related to his wife’s procedure. The doctors and hospital allegedly complied with some of the requests, but other doctors, including the anesthesiologist, required that the husband submit an affidavit to obtain the records.

Her husband wanted to begin depositions in order to make findings as to his wife’s heart rate and oxygen saturation levels before bradycardia occurred. The husband served a notice to the anesthesiologist for a deposition, but the anesthesiologist and his counsel requested that it be postponed. Instead of rescheduling, the husband filed a motion to compel the deposition. The husband argued that the anesthesiologist’s tactics obstructed the deposition. The trial court dismissed the lawsuit against the anesthesiologist because the husband had failed to provide an expert’s statement justifying his claims, known as an affidavit of merit in that jurisdiction, finding that he didn’t make a required written request for the medical records he needed from the anesthesiologist.

Physicians Performing Surgery Leave Foreign Object Inside Patient

Published on: October 18, 2017 | By DeFrancisco & Falgiatano

One of the most egregious forms of surgical errors is leaving foreign objects inside the patient. Unfortunately, case law reveals that this happens far more often than one might think. However, even if a physician neglects to remove medical devices during surgery, any lawsuit still needs to be litigated in accordance with New York surgical error laws and court procedure. As an example, an appeals court recently overturned a trial court decision in which the plaintiff’s case was dismissed, even though he alleged that medical clamps were left inside him after undergoing a surgical procedure.

The plaintiff underwent a lymph node dissection, which was performed by two physicians. The physicians used Hem-o-Lok clips during the operation, which are used during surgeries to permanently close bleeding vessels or tissue structures. After surgery, the plaintiff began experiencing abdominal pain, diarrhea, infections, and other complications. Doctors finally discovered a large bladder stone years later. The surgery to remove the bladder stone also revealed the Hem-o-Lok clip within it. The plaintiff’s expert opined that he believed the clip was inserted during the first procedure performed by the defendants, traveled to the bladder, and was not located or retrieved prior to closure. As a result, according to the plaintiff’s expert, the defendants violated the standard of care of the average qualified urologist when they failed to retrieve the loose clip before ending the surgery. The expert further attributed the plaintiff’s later symptoms, including the bladder stone formation, to the negligence of the defendants.

The defendants argued in response that the plaintiff’s expert testimony was conclusory. The appeals court denied this argument because the plaintiff’s expert had provided a factually based statement by a qualified expert, which was sufficient to meet the plaintiff’s burden of proof at that stage of the pre-trial proceedings. On the issue of causation, the defendants argued that the plaintiff failed to establish a causal link between the negligence and the plaintiff’s later complaints and discomfort. The court again disagreed. The plaintiff had presented enough evidence such that there was a greater likelihood that the harm to the plaintiff flowed from conduct for which the defendant was responsible. The appeals court vacated the lower court’s judgment and remanded the case, allowing the plaintiff to proceed with their claims.

Complaint Dismissed in New York Against Dermal Filler Medical Device Manufacturer

Published on: October 16, 2017 | By DeFrancisco & Falgiatano

Lawsuits require that an injured person identify who they think is responsible for their injuries. This may seem obvious, but it’s often difficult to determine which parties shoulder the responsibility for an alleged injury. This issue is often present in medical malpractice lawsuits. Often, multiple medical professionals will perform surgery, those professionals are employed in various medical groups, and the surgery occurs within a regulated hospital. Moreover, as a recent New York surgical error case discussed, a manufacturer of medical products and devices may also be implicated in a medical negligence lawsuit.In a recent case, the plaintiff filed a medical malpractice lawsuit against his plastic surgeon, the plastic surgery surgical group, and the manufacturer of a facial filler product. The court focused on the cause of action as directed toward the medical product manufacturer. Unlike most medical negligence claims in New York, claims against a medical product manufacturer require the establishment of a different theory of liability. Specifically, a party injured as a result of a defective medical product may seek damages against the manufacturer based on theories of a breach of a promise, express or implied, negligence, or strict product liability, including a failure to warn users of dangers. However, under New York law, the manufacturer only owes a duty to warn the physician, rather than the patient, of the product’s risks. The manufacturer does not have a duty to warn a patient of risks associated with its product. It instead discharges its duty by providing sufficient information to the physician.

The plaintiff’s lawsuit alleged that the product’s pharmaceutical representatives were responsible for providing instructions to the physicians on how to use the facial filler product. The plaintiff alleged that the pharmaceutical reps were present on one or more occasions when the physicians were treating the plaintiff. His complaint asserted that the pharmaceutical reps had a duty to assert that the product was used and administered in a safe manner, in accordance with regulatory guidelines.

The court was not convinced by the plaintiff’s argument. Instead, the court recited New York law and reasoned that although the manufacturer has a duty to warn a patient’s physician of the risks associated with the product, the manufacturer is not responsible for the way the physician uses the device and renders medical care. The court ordered that all of the claims against the manufacturer be dismissed.

New York Medical Malpractice Decision Shows Risks of Negligent Catheterization

Published on: October 12, 2017 | By DeFrancisco & Falgiatano

Medical malpractice can lead to serious injuries and in some cases, even death. The plaintiff’s decedent in a New York medical malpractice case was placed in a difficult position when the decedent underwent two surgeries, and neither surgeon would take responsibility for the action that led to the decedent’s allegedly fatal injuries.The plaintiff’s decedent had two medical procedures, and both surgeons were named as defendants in the ensuing lawsuit. The first procedure was a gall bladder extraction. Following the surgery, the decedent experienced pain and returned to the hospital. The patient underwent scans, and the tests showed that there was no leakage or perforation. However, upon further review, the doctors weren’t so sure and proceeded to take X-rays of the area in question, using an endoscope. The defendants argued among themselves about who caused the perforation. Either it was caused in the first procedure or later, in the second procedure, with a catheter. Both defendants agreed that by the time of the second procedure, there was a leak in the bile duct, leading into the abdominal cavity.

Surgeon number 2 established his prima facie case on summary judgment by providing deposition testimony, medical records, and the statements of two experts that supported that he did not breach the standard of care, nor were the actions of surgeon number 2 the cause of the decedent’s alleged injuries. An expert in gastroenterology opined that the bile duct leak was pre-existing by the time surgeon number 2 had the patient under his care.

New York Medical Malpractice Case Against Anesthesiologist Reversed on Appeal

Published on: October 10, 2017 | By DeFrancisco & Falgiatano

When properly administered, anesthesia allows us to undergo surgery without experiencing pain. Unfortunately, when administered in a negligent manner, it can cause devastating injuries or death. In a recent decision, the Appellate Division, First Department, reversed a New York medical malpractice summary judgment ruling by the trial court. The plaintiff alleged that she underwent foot surgery at Manhattan Medical Suite. As a result of the negligent administration of anesthesia, she experienced extreme regional pain in her foot area.During the case’s pre-trial proceedings, the defendants, which included the surgical suite, the podiatrist, and the anesthesiologists, moved for summary judgment. The defendants established a prima facie case, as required under New York civil procedure rules, by supporting their motion with expert affidavits and deposition testimony. The defendants argued that the anesthesiologists’ use of propofol was unsuccessful in sedating the plaintiff. Moreover, the propofol did not infiltrate the tissue on the plaintiff’s hand. The plaintiff’s injuries, according to the defendants, could not have been caused by propofol.

The court then analyzed the plaintiff’s rebuttal of the defendant’s summary judgment evidence. The plaintiff’s medical expert was an anesthesiologist and pain medicine specialist. His testimony included a statement that a partial infiltration of propofol occurred at some point during the surgery, through which propofol entered the blood stream and caused the injury.

Hospital Residents as Named Defendants in New York Medical Malpractice Claims

Published on: October 5, 2017 | By DeFrancisco & Falgiatano

Successful surgical procedures require an entire team of medical professionals and staff. In addition to nurses and technicians, the surgeon may also rely on the assistance of a medical resident who is training to become a surgeon. Along with inexperience comes the increased likelihood that the resident might make mistakes, even under the supervision of a trained surgeon. It’s possible to seek liability against a medical resident, but New York medical malpractice law makes it difficult. In fact, here is a recent decision that considered whether the assisting resident could be held liable for alleged malpractice.The plaintiff filed a lawsuit to recover damages for medical malpractice. The complaint alleged that the plaintiff underwent a laparoscopy with a lysis of adhesions procedure and a subsequent exploratory laparotomy performed later that day. The procedure was performed by the defendant obstetrician/gynecologist, along with the assistance of a resident at the defendant hospital. In addition, another defendant acted as the anesthesiologist for the procedure. The plaintiff alleged that during the procedure, the obstetrician/gynecologist and the resident cut the uterine wall and failed to recognize and treat the resulting intra-abdominal bleeding, and the anesthesiologist allegedly administered the wrong form of pain medication for the internal bleeding. After the defendants filed for summary judgment, the trial court ruled in their favor. The plaintiff appealed the trial court’s decision on summary judgment.

On appeal, the court considered the liability of a resident. New York law, as stated in Soto v. Andaz, 8 AD 3d 470 – NY: Appellate Div., 2nd Dept. 2004, provides that a resident who assists a doctor during a medical procedure, and who does not exercise any independent medical judgment, cannot be held liable for malpractice as long as the doctor’s directions did not so greatly deviate from normal practice that the resident should be held liable for failing to intervene.

The appeals court reasoned that the evidence showed that the plaintiff’s physician controlled the surgery, directed and supervised all of the actions of the assisting resident, and oversaw the injured plaintiff’s pre- and post-operative care, and that the assisting resident committed no act that departed from accepted medical practice. Therefore, the appeals court concluded that she was under the attending physician’s direct supervision at all times and did not exercise any independent medical judgment with respect to the injured plaintiff’s care and treatment, and the physician’s directions did not so greatly deviate from normal practice that the assisting resident should be held liable for failing to intervene. The appeals court ultimately affirmed the trial court’s ruling and dismissed the claims against the resident.

Expert Witness Fails to Properly Review Medical Evidence, Sinking Plaintiff’s New York Medical Malpractice Case

Published on: October 2, 2017 | By DeFrancisco & Falgiatano

Even supposedly routine surgeries carry risks and require that doctors perform those surgeries with an established standard of care. It can be a shocking experience to learn that a loved one has suffered complications as a result of a procedure that is commonly performed in hospitals across the United States. In a recent case, a New York man sued his surgeon for medical malpractice after he suffered complications from a procedure intended to remove fluid from excessive fluid near one of his testicles.

The plaintiff went into surgery for a procedure to extract fluids that had accumulated near one of his testicles. The surgery was performed, but shortly afterwards, the plaintiff began experiencing pain in his scrotum. He later lost the function of his right testicle. The plaintiff filed a lawsuit against the surgeon for medical malpractice. The plaintiff’s complaint alleged that the testicular damage resulted from the defendant’s failure to perform certain standard tasks during the surgical procedure, and these omissions led to an injury to the plaintiff’s right testicle. The trial court ruled in favor of the defendant’s summary judgment motion, and the plaintiff appealed the ruling.

The appeals court considered this case within the context of New York’s well-established medical malpractice laws. In order for the plaintiff to prevail in a medical malpractice action, the plaintiff must prove the physician departed from the standards of care for his or her practice, and there was a causal link between the negligence and the plaintiff’s injuries.

Medical Group Ordered to Release Anesthesiologist Contracts by New York Appeals Court

Published on: September 28, 2017 | By DeFrancisco & Falgiatano

Medical malpractice lawsuits, like all other forms of litigation, are subject to the jurisdiction’s rules of civil procedure. These rules are geared to make the litigation more efficient and predictable between the parties. The discovery process is a crucial pre-trial stage in which the parties gather evidence to prepare their cases. Medical malpractice cases often require the review of voluminous medical records and contracts to show whether a doctor, medical group, or hospital breached its standard of care.The plaintiff filed a New York anesthesia malpractice lawsuit against his anesthesiologist, the anesthesiology group, and Peconic Bay Medical Center. The plaintiff alleged that the defendants failed to ensure the proper anesthesia prophylaxis with regard to an operation performed on him at Peconic Bay Medical Center. His complaint alleged that as a result of the malpractice, he suffered severe injuries and complications. When the alleged malpractice occurred, a nonparty to the lawsuit was the president and sole shareholder of the anesthesia practice and its director of anesthesia services. The plaintiff requested, as part of the lawsuit discovery process, all contracts related to anesthesia services among the defendants to the lawsuit. The plaintiff filed a motion to compel those discovery requests, but the trial court granted a protective order to the defendants. The plaintiff appealed the trial court’s ruling with regard to the discovery request.

New York law provides that defendants must make a full disclosure of any facts material and necessary in the prosecution of a complaint or cause of action. New York courts have interpreted this rule as one that should be interpreted broadly and requires the disclosure, when requested, of any facts that will assist preparation for trial by identifying the issues and reducing unnecessary delay.