Medical Malpractice - Untimely Failures to Diagnose
Last month, in Adams v. Back, a New York appellate court affirmed a decision denying the defendants’ motion for partial summary judgment in a medical malpractice case. Juanita Adams, now deceased, had been a patient of defendant Ephraim Back, a doctor at St. Clare’s Hospital, since 1997. Between 1997 and 2005, Adams, who had a history of smoking, was treated for many ailments, including repeated upper respiratory infections, sputum-producing coughs, wheezing, hoarseness and bronchitis.
In December 2003, she had an abnormal chest X-ray following complaints of a persistent cough, blood in the sputum and a fever. Back never ordered any follow-up chest X-ray, blood work or other diagnostic tests. Adams continued to make complaints of upper respiratory problems and also experienced significant and unintended weight loss. Eight weeks later, she died from lung cancer. Her estate then filed a medical malpractice and wrongful death lawsuit alleging a failure to timely diagnose her condition. Back contended that her allegations were time-barred based on the running of the statute of limitations. The Supreme Court, however, allowed Adams’ estate to strike the statute of limitations defense and denied Back’s motion for summary judgment. The case is now proceeding. (See Adams v. Back, 2009 WL 2177266).
Similarly, in early August, the appellate court denied another appeal from a defendant who sought summary judgment regarding a medical malpractice suit. In this case, the wife of the Farnoush Rezvani, now deceased, seeks recovery based on his doctor’s failure to timely diagnose a perforated colon and for lack of informed consent. The doctor performed a surgery on the Rezvani, during which his colon was perforated; he died one month later after multiple corrective surgeries.
The court held that the defendant’s expert witness failed to establish that the defendant detected the perforation in a timely manner; the court also held that the defendant did not meet her burden of proof to establish that she sufficiently informed the Rezvani of potential risks, benefits and alternatives prior to the surgery. Because the court affirmed the decision to deny the defendant’s motion for summary judgment, the lawsuit is now still proceeding successfully (See Rezvani v. Somnay, 2009 WL 2394315).
These cases demonstrate that those who have suffered injuries from similar “failure to diagnose” medical malpractice situations – whether individually or through their loved ones – have a right to pursue such a cause of action. If you share a similar story, please let one of our attorneys know, and we will help you with the attention you deserve.
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