Category Archives: Medical malpractice

G&S Obtains Dismissal of Claim Based on Defective Service of Process

This was a claim for medical malpractice for the alleged improper performance of a cosmetic breast augmentation procedure (breast lift).  We moved to dismiss the complaint based on plaintiff’s counsel failure to properly effectuate service on our client physician.  Although the trial court refused to grant our motion and granted the plaintiff additional time to serve, partner Patrick Mevs, appealed the denial of the motion to the Appellate Division.  When plaintiff failed to effectuate proper service a second time, he again moved to dismiss and again the trial court allowed plaintiff more time.  Undeterred, Mr. Mevs perfected his appeal of both motions and after oral argument, the Court rendered a decision effectively dismissing the plaintiff’s complaint for failure to properly effectuate service.  Since the statute of limitations had expired, this decision effectively ended the litigation in favor of our client.

 

 

G&S Obtains Dismissal of Med-Mal Wrongful Death Action for Lack of Jurisdiction

Plaintiff brought wrongful death action alleging medical malpractice of our client, an internist, based on his alleged failure to detect and treat the plaintiff’s brain and lung cancer.

We moved based on our defense our client was never properly served with process at her actual residence or place of business.  Initial service was made at a hospital where she had formerly worked and later served at a condominium she owned, but had always leased to a tenant.   Plaintiff never effectively refuted our claim of lack of service, and, in fact, cross-moved for our client’s proper address for re-service.  The issue of service was of critical importance because the statute of limitations had expired. Continue reading

G&S Obtains Defense Verdict for OBGYN Clients

A pregnant woman close to full term came to the emergency room for the third time in a week with complaints of headache.  While in the ER she had what was believed to be a seizure. Our doctors were called in and treated her under the presumption that she had eclampsia, a life threatening condition for the mother and baby.  Our clients stabilized her and delivered a healthy boy. They admitted her to the ICU and ordered a work-up including head CT scan.
A few hours later she had a hemorrhage and eventually died.  It turned out she had hydrocephalus which could have been picked up with an MRI or CT scan and treated.

The ER doctors who saw her on the 3 occasions were found to be negligent for not getting scans. Plaintiff claimed our clients should have done it too. Ed Dondes  argued on behalf of our clients that the presumption that she had eclampsia was proper and treatment was stabilization and delivery with the order of a head scan after delivery, which was appropriate given the emergent  circumstances.

G & S Obtains Trial Verdict in favor of Hospital and Electrophysioloist

Ed Dondes represented a hospital and an electrophysiologist who was seen by the plaintiff for a consultation on his atrial fibrillation.  Mr. Dondes’ client recommended a procedure known as cardiac ablation after the plaintiff expressed a reluctance to go on lifetime medication for the condition.  The plaintiff tolerated the procedure without any complications, however, one month later he experienced a rare but known complication – atrial esophageal fistula and stroke. Mortality rate for this complication is extremely high, however, our client timely responded and had plaintiff admitted to the hospital where he underwent surgery, essentially saving his life. Plaintiff was admitted to the hospital for a month followed by in-patient rehabilitation. He claimed permanent injuries including impotence, fatigue, neurological deficits.  His wife claimed loss of consortium.   

Plaintiff’s theory was that the proper standard of care required a trial of medication before performing the cardiac ablation and that had he been offered medication he would have tried it prior to electing to undergo the procedure. Our client maintained that plaintiff was offered medication, but chose to have the procedure instead. Unfortunately, our client’s records did not document that plaintiff chose to pass on the medication. Nonetheless, the jury accepted our doctor’s testimony.      

 

G & S OBTAINS DEFENSE VERDICT AT TRIAL FOR DENTAL GROUP

In this dental malpractice action, plaintiff claimed lack of informed consent, negligent placement of dental implants and failure to take a preoperative CT scan and postoperative x-rays.  Plaintiff claimed the implants caused her pain, swelling, infection and anguish.  She alleged the dentist failed to explain the procedure’s risks and benefits  and did not discuss the alternatives and thus failed to obtain her informed consent.  She also asserted she could not read the Consent form without her glasses.  Her CT scans confirmed two implants had passed the bony floor of the sinus.

Steve Mutz argued that a preoperative CT scan was unnecessary since a panorex x-ray accurately demonstrated positioning of the bone level for placement of the dental implants.  Mr. Mutz further contended that the implants were properly placed since stabilization was achieved and they had not pierced the Schneiderian membrane.  Moreover, he asserted that implants protruding into the sinus was an accepted complication of the procedure.  He negated plaintiff’s claim of the need for glasses to read the consent form by subpoenaing her eye doctor’s records showing 20/20 vision.  Finally, Mr. Mutz argued that postoperative x-rays were taken during the next visit, and it would have made no difference if they were taken any earlier, since plaintiff declined removal.

 

Cross-Exam of Expert Leads To Rare Discontinuance of Med-Mal Trial

Dawn Adelson’s Cross-Examination Of Plaintiff’s Expert Leads To A Rare Discontinuance In The Middle Of The Trial, In A Claim That Our Client, An Eye Surgeon, Caused Plaintiff’s Retinal Detachment And Resultant Loss Of Vision. Supreme Court, Westchester County – 2016

Plaintiff, a 72 year old physician, underwent left-eye cataract surgery performed by our client.  Plaintiff’s post-operative course was complicated by intermittent complaints of pain to the eye, blurry vision, inflammation and  clouding of the posterior capsule.  Our client treated plaintiff with a course of steroids and performed a YAG laser capsulotomy for the opacification seven weeks post-surgery.    One and a half years after the cataract surgery plaintiff suffered a retinal detachment and permanent loss of vision.  Plaintiff brought suit alleging the detachment was due to our client’s failure to diagnose and remove retained lens material from the eye.  Plaintiff pointed to the post-operative inflammation as evidence of same and argued that the laser capsulotomy should not have been performed in the immediate post-operative period while plaintiff was still on steroids.  Plaintiff argued this triggers an uncontrolled persistent inflammation,  resulting in retinal detachment and permanent vision loss.   Continue reading

Gordon & Silber Obtains Jury Verdict for Hospital and Hospital Physician

Arthur Cohen Obtains Jury Verdict in Favor of Hospital and Hospital Physician In Medical Malpractice Claim For Death of Patient After Surgical Placement of a Vena Cava Filter. Supreme Court, Westchester County – 2015.

Decedent, then a 72-year-old, was admitted to our client’s hospital for the treatment of a deep vein thrombosis and expired five days later. Plaintiff was treated with the insertion of an inferior vena cava filter to prevent stroke. When codefendant surgeon placed the filter it did not open completely and migrated into the superior vena cava. A second filter was deployed without complication. A decision was made to allow the first filter to remain in place temporarily. The decedent remained hospitalized and came under the temporary care of our client physician. After being given pain medication for a preexisting back problem he became unresponsive but was revived by our client’s rapid response team and was transferred to the ICU where he stabilized. While in ICU he experienced kidney failure with dropping blood pressure and went into cardiac arrest and died. The autopsy revealed the cause of death was an accumulation of blood in the pericardial sac with two legs of the filter dug into the wall of his heart. The demand throughout the trial was $10 million. Continue reading

Gordon & Silber Obtains Jury Verdict in Favor of Orthopedic Surgeon

Ed Dondes Obtains Jury Verdict in Favor of Orthopedic Surgeon For Failure to Treat Infection Leading to Death of Patient in Supreme Court, Westchester County – 2015

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.

G&S Obtains Defense Verdict in Tough Eye Case Involving Multiple Surgeries

The Plaintiff had undergone cataract surgery performed by our client.  One day after the surgery, as well as a week after surgery, plaintiff was evaluated by our client with very poor visual acuity (ability to only “count fingers” at 2 feet). On the third post-operative visit, our client determined that the intra-ocular lens (the artificial lens that he inserted as a replacement for the human lens which has developed a cataract) had dislocated.  As a result, the plaintiff had to undergo a series of surgeries to correct this situation, which allegedly caused him to have serious problems with depth perception, glare and blurry vision.

The claim of malpractice essentially was that the intra-ocular lens had dislocated right after the surgery, which was demonstrated by the extremely poor visual acuity one the first and second visits and that our client had failed to diagnose it in a timely fashion. The plaintiff’s experts testified that had our client dilated the eye and seen him more frequently, he would have diagnosed the dislocation earlier, which would have caused the corrective surgery to be done earlier, avoiding the necessity of additional surgeries and prevented the development of his problems with depth perception, blurriness and glare.

We were able to defeat the claim by presenting evidence and expert testimony which established that despite the initial poor visual acuity at the time of the first two post-operative visits, our client had correctly ascertained that the intra-ocular lens was in the correct location through both his own examination and the use of a device called the auto-refractor. We also proved that as soon as there was actual evidence that the lens had dislocated, our client made the correct referral, and that despite the claims of impaired vision, the plaintiff had made a good recovery after the corrective surgery, with vision which enabled him to fully participate in his daily activities.

G&S Obtains Defense Verdict in Death Claim

Gordon & Silber represented an internist/rheumatologist in a case of medical malpractice.   Plaintiff’s decedent was his long-time patient.  Although he was healthy, he had some issues including reflux disease, obesity, hypertension and high cholesterol putting him at risk for heart disease. He presented in February 2008 with chest pain.  Our client sent him to a cardiologist for a work-up.  His stress test and echocardiogram showed no signs of coronary artery disease. He had no more problems until May 2010 when he again presented to our client with complaints of chest pain. Our client did not believe the pain was cardiac in nature. Rather, he believed it might be an esophageal spasm which can cause chest pain.  He recommended an anti-spasmotic medication and advised him to return if he wasn’t getting better. Instead of returning he went to a gastro-intestinal doctor (“GI”) in August 2010. The GI diagnosed him with erosive gastritis and put him on some medication. He returned to our client in October 2010 for a flu shot.  He advised our client’s nurse that he was still having chest pain. After our client spoke with him and ascertained he wasn’t having any symptoms he strongly recommended to the decedent that he go see a cardiologist. He never followed up with a cardiologist and died of a heart attack in December 2010.  He was divorced with 2 kids (22 and 18) and was earning over $200k per year. At trial his estate asked for $ 2 million in lost earnings, $1 million for loss of guidance and $250k for pain and suffering.

We called a cardiologist who maintained that our client acted appropriately.  Through our expert and our client we established that his exams, assessment and recommendations were appropriate. We also called the plaintiff’s fiancé, a nurse, on our case and obtained an admission from her that she repeatedly asked him to go to a cardiologist between October and December. She also tried to call an ambulance for him about 24 hours before he died because he was having chest pains.