Plaintiff No Caused After Month Long Trial
On March 14, 2023, after a month long trial in Queens County Supreme Court, before the Hon. Joseph J. Esposito, we were successful in obtaining a CPLR Rule 4401 motion for a directed verdict, for a physician defendant. The case, brought on behalf of a longtime deceased nursing home patient, focused on the medical management of a long time multiple sclerosis patient by the defendant physician. The basis of the successful CPLR Rule 4401 motion was the failure of plaintiff to put the requisite elements of a medical malpractice case before the jury, with regard to departure, alleged injury and causation.Read More
Jury Absolves GYN Surgeon of Malpractice in Surgical Misadventure
The defendant specializes in laparoscopic surgery, in this case to remove a fibroid uterus estimated to be the equivalent of a 28 – 30 week pregnancy. He is board certified in obstetrics and gynecology and female pelvic medicine and reconstructive surgery. Near the end of the procedure, some blood was seen in the Foley. The defendant searched for and found a three millimeter defect in the dome of the bladder, and repaired it with a stitch and lapra-ty. The plaintiff was discharged with a Foley in place.
After allowing a week for the bladder to heal, the Foley was removed. Shortly after the Foley was removed, the repair failed. The plaintiff underwent laparotomy and repair with a different surgeon at a different medical center.
While the second bladder repair was apparently successful, the plaintiff claimed to suffer from overactive bladder, and her expert witness testified it was due to bladder irritation from the second bladder repair. In order to control those symptoms, she eventually had a neurostimulator implant. This relieved her urinary symptoms but left her with complaints of pain at the implant site.
Plaintiff’s expert testified that standard of care called for a cystogram to be done before removal of the Foley, and that based on the near contemporaneous failure of the first repair, the test would have shown a leak. Then, the Foley would have remained in place for a week to ten days. Another cystogram would be performed, and so on, until the bladder was healed.
The defense expert testified that there is no requirement that a cystogram be performed in th case of every inadvertent cystotomy. The decision to order, or not, rested within the discretion of the surgeon. In this case, there was a very small cystotomy. It appeared clean and healthy around the edges, as if it were from sharp dissection. The repair was “well approximated,” meaning that the cystotomy closed nicely. The defendant testified that he was highly confident in the repair, and that under the circumstances, no cystogram was required.
The jury found that the defendant’s failure to order a cystogram was not a departure from accepted medical practice.
Hospitalist Attending Successfully Defended Against Claims of Medical Malpractice
On April 15, 2012, Clifford Rizzo returned to New York from a Caribbean vacation in severe back pain. Mr. Rizzo was a large man, over 300 pounds, and suffered from multiple ailments including diabetes, high cholesterol, high blood pressure, and narrowing of the carotid arteries, among others.
It turned out that he had an epidural abscess. The abscess was in his lumbar spine, extending upward as high as an MRI showed. Mr. Rizzo had intermittent weakness in his left leg. Getting a complete lumbar spine MRI was complicated by Mr. Rizzo’s difficulty fitting in to the MRI scanner, and his anxiety in attempting it. Imaging the thoracic and cervical spine was also problematic. Mr. Rizzo refused tests. His doctors planned an MRI under anesthesia.
Before the MRI under anesthesia was done, Mr. Rizzo woke up at 4:00 a.m. with sudden left arm weakness. All concerned attributed the weakness to an ascending epidural abscess. The MRI under anesthesia was planned to locate the abscess, with decompression surgery likely once that was done.
Mr. Rizzo’s second MRI showed that the abscess had been successfully treated with antibiotics, and investigation turned to identify other sources of his symptoms. Two CT scans of his brain were normal, but on the next day, an MRI (again under anesthesia) revealed a watershed stroke.
Mr. Rizzo died of unrelated causes three years after his stroke. His widow continued his medical malpractice lawsuit. She claimed that his medical attending doctor should have anticoagulated Mr. Rizzo due to his history of atrial fibrillation, that he should have been on two hour neuro checks due to his threatening neurologic deficits, and that he should have called a neurologist, or a stroke code, as soon as he learned of Mr. Rizzo’s left arm weakness. She also claimed that the orthopedics team, including his orthopedic attending surgeon, should have called a neurologist, or a stroke code.
Both defendants claimed that Mr. Rizzo’s stroke was not amenable to treatment because it was a watershed (low-flow) stroke, not an embolic stroke, with no clot to bust, because he had symptoms upon awakening, and was therefore outside the temporal window for treatment with clot busters, and because he had an epidural aspiration two days before, and with possible spinal decompression planned, was too high-risk of hemorrhage to be given clot busters.
The orthopedic surgeon claimed that diagnosing strokes was outside his area of expertise. The medical attending doctor claimed that he was not notified of the events in question until he rounded on the patient in the morning, much too late to order clot busters. Mr. Rizzo’s stroke was eventually diagnosed approximately 36 hours after the onset of symptoms.
The jury determined that the medical attending doctor was not negligent for allegedly failing to prevent the stroke. It found that neither the medical attending doctor nor the orthopedic surgeon were negligent for failing to immediately call a stroke code or a neurologist.
The case was settled after verdict pursuant to a high-low agreement. James M. Furey, Jr. represented the medical attending doctor.Read More
No Negligence in Cataract Surgery
An ophthalmologist performing cataract surgery on an octogenarian patient encountered severe iris prolapse attributed to prior use of uroxatrol and floppy iris syndrome. After repositing the iris, the surgeon encountered a corneal wound burn, but ultimately completed the surgery through a different incision. The patient was left with severe astigmatism, updrawn pupil and cystoid macular edema. These conditions were treated by others, and the plaintiff eventually achieved good visual acuity in the eye, albeit with blurriness, glare and distorted vision.
The plaintiff claimed that the burn could only have a occurred if the surgeon ignored the “no aspiration” warning on the Alcon Centurion phacoemulsification machine. The surgeon and scrub nurse both testified that no alarm went off.
After two hours of deliberation, the jury returned a unanimous verdict for the defendant. James M. Furey, Jr. represented the defendant.Read More
Plastic Surgeon Vindicated in Failure of Breast Reconstruction
A Nassau County jury rendered its verdict in favor of a plastic surgeon after multiple failed attempts to reconstruct the patient’s right breast after double mastectomy. The jury found that the patient provided appropriate informed consent, and that the surgeon adhered to accepted medical practice. James M. Furey, Jr. represented the surgeon.
The procedure at issue was a DIEP (Deep Inferior Epigastric Perforator) free flap reconstruction. This is a microsurgery technique, in which two flaps of tissue are removed from the abdomen and reattached in place of the breast tissue. Although the left breast reconstruction worked without complication, the surgeon encountered repeated clotting in one the two veins relied upon to drain the right breast flap. It became clear that the flap was not viable, and it was removed. The surgeon then proposed a latissimus dorsi flap procedure with artificial implant. The procedure was initially successful, but the tissue expander eventually became exposed and had to be removed. The surgeon proposed autologous fat transfer for a third attempt, but the patient declined.
The plaintiff contended that neither surgery should have been offered, because the patient was high-risk due to morbid obesity. The surgeon countered that he had good results, even with morbidly obese patients. The jury deliberated for approximately two hours.Read More
Defense Verdict in Orthopedic Case
In a recent trial in Suffolk Supreme Court in Riverhead, New York, our firm was successful in obtaining a defense verdict for an orthopedist who was alleged to have improperly reacted to a complication that became apparent post-operatively. The case involved a repair of a torn left anterior cruciate ligament (ACL) in a high school athlete. The plaintiff alleged that the complication required an immediate remediation. The defense contended that the repair of the ACL worked regardless of the complication. The patient did not make any complaints to the defendant orthopedist of knee instability. The patient was successful in completing a course of post-operative physical therapy and played on his high school soccer and wrestling team during his senior year. Physical therapy records documented an injury to his left knee during the wrestling season that had not been reported to the defendant physician at the time the patient returned months later with a ruptured left ACL graft. The jury was unanimous in finding in favor of the defendant orthopedist.Read More
Physician Assistant Vindicated
On February 6, 2019, a Nassau County jury returned a unanimous verdict in favor of physician assistant Robert F. DiBaro. On February 21, 2010, then 47 year old Paul Chicoine was painting the ceiling of his basement when he suddenly experienced left sided weakness, slurred speech, nausea, dizziness and vomiting. He contacted his sister, Patricia Conti, and asked her to call Emergency Medical Services. EMS documented his complaints and brought him to St. Joseph Hospital. By the time he arrived, he was no longer experiencing left sided weakness or slurred speech. He was diagnosed with vertigo and sinusitis, and discharged on Biaxin and Meclizine with instructions to follow up with his primary care doctor.
Mr. Chicoine had an appointment to see his primary care doctor on February 26, but the office closed because of a snowstorm. His appointment was rescheduled to March 1. On Sunday February 28, Geralyn Chicoine, the plaintiff’s wife, called the office twice, and reached Mr. DiBaro, who was the covering health provider that day. She reported that her husband was still experiencing nausea, vomiting, dizziness and GERD since his discharge from the emergency room the prior week. She contends that on each occasion, she was told to keep her appointment with the practice on March 1. Mr. DiBaro documented that on each occasion, he instructed her to take her husband to the emergency room.
Mr. Chicoine did not go to the emergency room on February 28, but did appear for his appointment on March 1. Mr. DiBaro reached a differential diagnosis including a possible Transient Ischemic Attack (TIA), and again encouraged Mr. Chicoine to go to the hospital. The Chicoines contend that Mr. DiBaro never advised them to go to the emergency department. Mr. DiBaro made arrangements for Mr. Chicoine to be seen immediately by a neurologist, Dr. Adam Schneider. Dr. Schneider ordered an imaging study to rule out a vertebral artery dissection, which was to be performed on March 2. Overnight, Mr. Chicoine suffered a stroke secondary to undiagnosed vertebral artery dissection.
The plaintiff sued St. Joseph Hospital and Dr. Mendola, claiming that each failed to elicit and document a proper history including slurred speech and left sided weakness. Had they done so, plaintiff claimed, proper work up would have lead to diagnosis and treatment with anti-coagulants, and reduced the risk of stroke. Plaintiff alleged that Mr. DiBaro did not actually advise Mr. Chicoine to go to the emergency room on February 28 or March 1, and that it was a departure from accepted medical practice to send the plaintiff to a neurologist, instead of to the emergency room. Plaintiff claimed that in the ER, imaging studies would have been done emergently, and the plaintiff’s dissection would have been discovered and treated before his stroke.
Mr. Chicoine returned to work as a Court Officer in October 2010, and continued to work until July 2013. He contended that the effects of the stroke then prevented him from continuing the requirements of his employment. The jury found that Dr. Mendola and St. Joseph Hospital departed from accepted medical practice, and awarded damages for past and future lost earnings, loss of future pension benefits, past and future pain and suffering, and to Mrs. Chicoine, past and future loss of services. The jury returned a verdict in favor of Mr. DiBaro.Read More
Two Defense Verdicts For The Price of One
Recently, one of our partners, Thomas G. Leverage, got a defense verdict in a case that involved birth related injuries and then also injuries to the mother post-partum. After a month-long trial in Supreme Court, Kings County, the jury returned a verdict as to both the infant’s claims and the mother’s claims in favor of our client, the treating OB/GYN and the co-defendant Brooklyn hospital.
The issue in the infant case concerned allegations that the labor was induced without medical indications at 37 weeks and 4 days of gestational age. The parents alleged that the induction was done for the convenience of the doctor’s schedule and was done 17 days prior to the due date. During the trial, the plaintiffs’ experts argued that the infant’s deficits of pervasive delayed development, respiratory problems and neurologic injury were the result of this premature (before the due date) delivery. Issues in the case concerned whether medical indications were required to induce labor between 37 weeks and 39 weeks of gestational age.
The defense produced evidence that medical indications were not required to induce labor in 2013 between 37 and 39 weeks. However, in this case, there were very serious medical indications that justified the induction. The mother had presented to the hospital at 37 weeks and 4 days with complaints of decreased fetal movement, mild headache and mild blurry vision. Although these complaints were documented in the hospital chart, the mother denied ever giving this history. The defense argued that these complaints could have signaled fetal problems as well as a serious condition called preeclampsia. The treatment for these conditions was to induce labor and deliver the baby. The fetal monitoring strips showed no evidence of fetal distress. The baby was born with APGARS of 4, 5, and 9 at one, five, and ten minutes. The baby’s stay in the NICU was uneventful and the baby was maintained on room air.
The mother’s case involved claims of infertility caused by retained products of conception left in the uterus after the delivery of the baby. This required two D & C (dilatation and curettage) procedures to empty the uterus. As a result of these procedures, it was alleged that the mother developed Asherman’s syndrome resulting in infertility.
The defense argued that the images on the sonograms of the uterus were non-diagnostic and the use of the phrase “retained products of conception” was a presumptive or working diagnosis. The final diagnosis was given in the pathology reports following the D & Cs which indicated there was no retained products of conception. The vaginal bleeding experienced was due to the uterus not contracting fully after birth (subinvolution of the uterus). The mother admitted that she was warned that the second D & C performed so close in time to the first D & C could damage her uterus. Nevertheless, she found a non-party OB/GYN who performed the second D & C at a different hospital than the hospital where the first D & C was performed.
In summation, the plaintiff’s counsel suggested that the damages for these claims were somewhere between $15 million and $95 million dollars. The jury returned a verdict in favor of the defendants in less than an hour.Read More
Cataract Surgeon Successfully Defended Against Claims of Negligently Performed Surgery
James M. Furey, Jr. successfully defended an eye surgeon in a case involving the loss of vision in the surgical eye. The plaintiff suffered from floppy iris syndrome. During the first attempted placement of a posterior chamber intra ocular lens, capsule integrity was lost. An anterior chamber lens was successfully placed in a second procedure two weeks later, but the patient developed increased pressure and bleeding leading to corneal staining and loss of vision. The plaintiff contended that surgery was negligently performed. The doctor contended the outcome was a known risk of the procedure. The jury returned a unanimous verdict for the defendant.Read More
Radiation Oncologist Obtained Informed Consent
Susan Darlington secured summary judgment dismissing all claims against a radiation oncologist except informed consent. James M. Furey, Jr. tried the informed consent claim to defendant’s verdict. After being diagnosed with breast cancer, the plaintiff underwent a mastectomy with immediate reconstruction via tissue expander and permanent implant. Given the choice between radiation treatment followed by exchange of permanent implant six to nine months later, or exchange of permanent implant followed by radiation treatment six weeks later, the plaintiff opted for exchange first. Plaintiff suffered loss of the permanent implant from radiation, and never underwent further reconstruction. She contended that the radiation oncologist failed to warn her of that risk. The radiation oncologist testified that he would leave that choice between the patient and non-party plastic surgeon. The jury returned a unanimous verdict in favor of the radiation oncologist.Read More
Thomas G. Leverage Honored by Pulse Magazine
Tom Leverage was selected by Long Island Pulse Magazine to be the 2018 Legal Eagle of Medical Malpractice.Read More
Sue and Tom looked at the litigation process from the commencement of a medical malpractice lawsuit, through discovery, through the trial, through the verdict and then to the potential appeal. At each step of the process, Sue and Tom explained the protections afforded to a defendant physician by the law. More importantly, they next described how in certain circumstances these protections are seemingly eroded in practice by other aspects of the law or by judicial decisions.
As an example, Sue and Tom talked about the protections afforded to medical malpractice defendants by a 2.5 year statute of limitations. This protection can in certain circumstances seem to disappear however in the event a physician is impleaded years later by another defendant or by application of the relation back doctrine. In a recent case in our office, two physicians were added as defendants in the case 10 years after the event in question! (more…)Read More
More on Summary Judgment
Rogers v. Sermoneta – James Furey, Jr. – Architectural malpractice and breach of contract.
Calloway v. Barone – James Furey, Jr. – Plastic surgery on plaintiff’s face.
Benlos v. Ramenofsky – Kenya Hargrove – Pediatric vascular surgery.
Carman v. Huntington Hospital – James Horan – lumbar laminectomy.
Brown v. Riverhead – Frank Catelli – Premises liability / lack of notice.
Farnham v. White – Tom Leverage – neurologically impaired infant.
Radiology Practice Successfully Defended by Tom Leverage
Tom represented the medical group that employed the internists who treated the patient as well as the radiologist who read the x-ray in question. The internists were represented by separate counsel.
The case presented very many interesting issues of medicine and law. After a protracted discovery phase, several of the co-defendants were removed from the case by summary judgment motions. (more…)Read More
Jury Finds No Negligence by Mammography Technician
The day after the test, the plaintiff’s right breast became painful, swollen, and discolored. Her injury progressed to a full skin thickness breakdown, with some necrosis, a prolonged course of treatment with a plastic surgeon, and ultimately, permanent scarring. Five years after the events, she was still treating with a plastic surgeon for improvement of her scar. The jury reached a unanimous verdict, finding that despite the plaintiff’s injuries, the technician adhered to accepted practice in administering the mammogram.Read More
Summary Judgment Roundup
In Adams v. Kohan, James M. Furey, Jr. secured dismissal of a medical malpractice action on statute of limitations grounds, and successfully defended the plaintiff’s appeal. The Court rejected plaintiff’s argument that the statute was extended by the continuous treatment doctrine. In Signorelli v. Pacs Industries, he proved that switchgear manufactured by the defendant was not a defective product.
On an appeal defended by Susan Darlington, the Appellate Division, Second Department affirmed the trial court decision dismissing premises liability claims against our clients for lack of notice. Vitello v. AMB Property Corp., 97 A.D.3d 567. After denial of our summary judgment in Dolan v. Halpern, 73 A.D.3d 1117, Ms. Darlington successfully prosecuted our appeal. (more…)Read More
Defense Verdict in Breast Cancer Case
One of our partners, Tom Leverage, obtained a defense verdict for a radiologist accused of misreading mammograms in a breast cancer case. The trial was held in Supreme Court, Suffolk County before Judge Leis in Central Islip. The jury returned its verdict in about 15 minutes.
The case alleged against the radiologist was a failure to observe, report, and communicate what was alleged to be a suspicious lesion seen on the right CC view and a cleavage view in October 2006. The plaintiff’s expert testified that this was a new lesion not seen on prior films and spiculated in shape. Eight months later the plaintiff had a 2.5 cm cancerous tumor removed from her right breast. It was found to be a very aggressive Stage II tumor. (more…)Read More
Tom Leverage Successfully Defends Against Claims of Negligent Post Operative Care
The case was unusual in that the patient himself was a physician, his wife was an OB/GYN physician, and four of his five sisters were physicians. The patient’s family was active in selecting the surgeon to do the delicate and dangerous surgery involving the pancreas. The five hour operation was a success, but the patient suffered from a pulmonary embolus one day post-operatively. He was transferred to the Surgical Intensive Care Unit and had a somewhat rocky course. Four days later he was transferred to a telemetry floor. The patient exhibited mental status changes and had respiratory difficulties. He then had a significant drop in his hematocrit and hemoglobin values requiring transfusions with 3 units of blood. The next day he had a significant rise in his white blood cell count. His abdomen had been distended for days and he had over the course of the hospitalization gained over 40 pounds from fluids. A CAT scan was ordered of the abdomen which the patient initially refused but later signed a consent for this exam. Shortly after physical therapy around noon time, he decompensated and a code was called. The patient was intubated and given more fluids. (more…)Read More
Dismissal of Firefighter Upheld
The Petitioner had been a volunteer firefighter with the Bethpage Fire Department since 1987. He was also employed as an Emergency Dispatcher and Maintenance Worker by the Bethpage Fire District. In 2005, while at a training session, he switched Hurst tool (jaws of life) tips from a Syosset Fire Department vehicle with the ones on a Bethpage Fire Department vehicle. The switch of tips was discovered in 2006. He was suspended from the Bethpage Fire Department on November 15, 2006. He was subsequently informed of the charges against him in May of 2007. An Article 75 Civil Service Hearing was held on February 7, 2008 and March 4, 2008. The Hearing Officer determined that there was substantial evidence to establish the charges against the claimant concerning the switching of the tips. On September 10, 2008, he was formally terminated from the Bethpage Fire Department and the Bethpage Fire District. (more…)Read More
A Medical Malpractice Who (or what) Done It
The mystery began when a patient in a hospital died on the operating room table during procedures to place a Quinton dialysis catheter into the left internal jugular vein. Shortly after the operative procedures were completed, the patient went into ventricular tachycardia and a code was called. Within minutes, the patient became pulseless. Efforts included CPR, shocking the patient, and the administration of medicines. After 35 minutes without success, the surgeon inserted a temporary pace maker into the left femoral vein and tried to get it into the right ventricle of the heart. Minutes after passing the pace maker, a chest x-ray was taken showing the pace maker in the superior vena cava and a minimal to moderate left pleural effusion. Unfortunately, nothing worked and the patient expired after approximately 55 minutes of resuscitative efforts. (more…)Read More