Our client health club was sued when a member fractured her hip falling in a whirlpool room allegedly due to an excessively wet floor Plaintiff underwent two surgeries as a result. We moved for summary judgment on the theory the water condition was incidental to the whirlpool. We also argued that plaintiff’s claim the water was excessive should have been disregarded by the court since she did not observe the condition before she fell. We similarly argued that the affidavits of plaintiff’s witnesses should also have been disregarded since they did not witness the condition contemporaneously with the accident. After the court denied our motion, G&S appealed to the Second Department which reversed, agreeing that the water which caused plaintiff’s accident was incidental to the use of the whirlpool room and therefore not actionable. The Court also agreed with the defendant that the affidavits of the plaintiffs’ witnesses should have been disregarded.
Plaintiff, than 80 years old, came in for an evaluation of knee pain. Our client performed a knee replacement. Her recovery was complicated by a patella tendon rupture necessitating another surgery from which she recovered. She thereafter suffered a breakdown of the surgical wound. Our client admitted her to the hospital and performed an irrigation and debridement. He also brought in an infectious disease doctor and started her on IV antibiotics. After two weeks her family transferred her to a different facility where the prosthesis was removed. Two weeks later developed sepsis and multi-organ failure from which she pulled through, but later died after surgery to place a trach when the hospital failed to monitor her condition.
We argued that our client acted appropriately in treating what appeared to be a superficial infection using irrigation, debridement and IV antibiotics. We argued that the removal of the prosthesis was contraindicated since it was never definitively determined to have been infected. We argued that she was stable under our client’s care and that her problems started at the subsequent facility. The jury deliberated for 10-15 minutes before returning a defense verdict.