Tag Archives: malpractice

Post Trial Motion to Dismiss Granted Against Dental Group – No Vicarious Liability

In this case for dental malpractice, it was alleged that our client (dental group) was vicariously liable for  improper bridge work performed by a treating dentist.  Plaintiff alleged that had the dental group first provided her with periodontal treatment, her lower teeth would have been preserved and not reduced to stumps with permanent crowns.

After a trial, the jury rendered a verdict for which our client was found to be 50% liable.

We made a post-trial motion, which the judge granted vacating the verdict, on the basis that plaintiff had failed to establish that dental group was vicariously responsible for the acts or omissions of the treating dentist, either as an employee or under an agency theory.  Specifically, she found that there was no evidence that the treating dentist was the subject to the direction and control of the dental group as to the manner or method of performing the work. Moreover, the judge determined that there was no evidence from which a jury could conclude that plaintiff accepted the services of the treating dentist in reliance upon the belief that he was an employee or agent of the dental group.  Therefore, the judge wholly dismissed the action against our client.

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.