Defense Verdict in Negligence Case Against Apartment Building

Senior Trial Partner John L.A. Lyddane and Partner Steve A. Lavietes received a defense verdict in Supreme Court, New York County. The plaintiff, a 40-year old male bariatric surgeon, filed a suit against his landlord after his shower door shattered and cut into a tendon on his dominant hand. The plaintiff claimed various acts of negligence on the part of the owner and managing agent, and sought to recover more than $400,000 in lost earnings.

Building employees agreed that other tenants had sustained similar injuries, but not that the doors were dangerous. After producing expert testimony on the design of the frameless tempered glass doors, and proving that the doors met all existing standards for safety, the defense was able to place the injury in perspective and convince the jury that there was no unsafe condition in plaintiff’s apartment.

Defense Verdict in Prolift Mesh OBGYN Case

Senior Trial Partner, Anthony M. Sola, with assistance from Partner Scott O. Frycek and Associate Melissa Andrieux, received a defense verdict in Supreme Court, Suffolk County. The plaintiff claimed that the defendant obstetrician – gynecologist improperly inserted a Prolift mesh sling to treat the patient's prolapsed bladder and rectum. The allegation was that a portion of the mesh was improperly placed into the abdominal cavity. As a result, within two days of the surgery, the patient developed a small bowel obstruction requiring a 3 week hospitalization with an emergency exploratory surgery complicated by sepsis and requiring an ICU admission with mechanical ventilation. Thereafter, about 2 years later, she developed severe contractures of the mesh around the bladder neck and erosion of the mesh into the vagina requiring a major operation to release adhesions and remove portions of the mesh that had eroded into the bladder and vagina. Plaintiff subsequently developed erosion of the mesh into the rectum and parts of the intestines resulting in a massive pelvic abscess requiring another major operation, resection of a portion of the bowel, and the creation of a colostomy.

The defense was that the history obtained by subsequent surgeons that the mesh was in the abdomen was simply incorrect, and that all her problems were due to mesh erosion which is a known adverse reaction to the mesh itself, and not due to the technique employed by the defendant in insertion of the mesh sling. Notably, before plaintiff’s expert testified, Ms. Andrieux was able to locate and obtain a deposition of a case in which the plaintiff’s expert was sued for similar injuries. This was utilized on cross-examination to great effect on the issue of causation. After a two and a half week trial, the jury decided in favor of the defendant physician.

Defense Verdict in Wrongful Death Case

Senior Trial Partner Peter T. Crean received a defense verdict in Supreme Court, Westchester County in a wrongful death trial involving a 41 year-old married mother with chest symptoms and rash who was  diagnosed with, inter alia, an allergic reaction. The patient was evaluated and discharged from the ED of a major medical center and shortly thereafter died of an aortic dissection. Plaintiff claimed that the hospital staff and nurses mischaracterized the patient’s symptoms, thereby preventing a proper work up for a more serious cardiac or vascular condition by the attending  physicians. The trial involved in-depth analysis of the clinical significance of the signs, symptoms and pathology. The three week trial involved many experts including many emergency medicine experts.

Defense Verdict in Hip Replacement Case

Senior Trial Partner John J. Barbera recently obtained a malpractice defense verdict in Supreme Court, Dutchess County. The case involved an 81 year-old previously  ambulatory woman who was permanently confined to a wheelchair following hip replacement surgery. The plaintiff claimed that the hip prothesis was improperly sized which caused a mechanical weakness. In addition, the plaintiff claimed that an iatrogenic injury to the sciatic nerve further compounded the mechanical problem.

The defense called experts in orthopedic surgery and neurology to demonstrate through MRI studies and EMG tests that the patient had a pre-existing bilateral  neuropathy as opposed to a focal nerve injury that rendered her permanently weakened after the hip surgery. The jury determined that the hip prothesis was sized appropriately and implanted without causing any mechanical or neurological injury to the plaintiff.

Appellate Court Unanimously Upholds Dismissal of Legal Malpractice Action

Senior Trial Partner Peter T. Crean, with the assistance of Partner Michael E. Gallay, recently won an appeal in the Appellate Division, First Department dismissing the plaintiff’s legal malpractice action. The plaintiff alleged that the defendant-attorney failed to timely prosecute his underlying Article 78 proceeding. If timely prosecuted, the plaintiff claimed that his termination from Police Department employment would have been reversed, thereby entitling him to significant disability and pension benefits. In a unanimous decision, the appellate court disagreed with the plaintiff and reasoned that proximate cause was lacking.

Specifically, the appellate court found that even if the Article 78 proceeding was timely prosecuted, the plaintiff still would not have succeeded in overturning his termination from municipal employment. The appellate court also rejected the plaintiff'’s claim for punitive damages under Judiciary Law § 487 because the record did not reveal a chronic or extreme pattern of legal delinquency. The appellate court likewise affirmed the dismissal of the breach of contract cause of action as duplicative of the legal malpractice claim.

Doctor Claims Patient's Cancer Too Rare to be Spotted

Senior partner John L.A. Lyddane recently obtained a defense verdict in Suffolk County Supreme Court for an internist in a case involving failure to diagnose a rare cancer.

The Plaintiff, at the time a 31 year old pregnant woman, was receiving prenatal care from doctors at a private OB/GYN facility. Her doctors learned that she was suffering from significant anemia and she was referred to an internist, represented by Mr. Lyddane. The defendant doctor noted that she was also suffering from fatigue, but concluded that both the anemia and fatigue were due to the pregnancy and that the anemia was also contributed to by thalassemia minor, a genetic deficiency. The doctor prescribed nutritional supplements at that time.

Plaintiff’s baby was born in October of 1999, and the mother underwent further evaluation following the child’s birth by two doctors also named in the suit. In the summer of the following year, the Plaintiff returned to the defendant internist’s office suffering from pain that was localized to one hip. Tests revealed that she was suffering multiple myeloma, a cancer typically found in the elderly which had caused a near fracture of her left femur. Plaintiff claimed that the disease could have been detected in 1999 when she was originally seen by the doctor and that earlier detection would have prevented the fracture and led to more effective treatment of the disease. Plaintiff sued the doctors that originally treated her at the OB/GYN office as well as the internist for failure to diagnose her cancer. During trial, several of the other doctors were dismissed based on the expiration of the relevant statute of limitations, but the matter proceeded against Mr. Lyddane’s client.

Plaintiff’s counsel claimed that the Plaintiff suffered severe anemia and that thalassemia minor, the defendant doctor’s diagnosis, cannot cause anemia of such severity. Counsel further contended that her treating doctors should have conducted bone marrow tests which would have detected the multiple myeloma.

Mr. Lyddane proved through a hematology expert that multiple myeloma rarely affects people who have not reached age 60 and that the plaintiff’s anemia was in fact a product of her pregnancy and thalassemia minor. The patient’s symptoms never suggested that she was suffering from cancer. During cross-examination, the plaintiffs’ expert oncologist acknowledged that currently used guidelines would have determined that the plaintiff’s cancer did not surpass the first stage of development from which the defense argued that the diagnosis was timely and any claimed delay caused no harm to the patient.

Patient Claimed Ill-Advised LASIK Surgery Harmed Vision

Senior partner John L.A. Lyddane represented an eye surgeon at a major laser eye center, producing a defense verdict in Nassau County Supreme Court. Plaintiff underwent a bilateral LASIK laser eye surgery in 2002 which was performed without complication, but later claimed vision impairment in low light conditions. The Plaintiff claims to have experienced glare, starbursts, halos and decreased visual ability in all low-light circumstances and the impairment prevents him from driving at night or functioning normally in circumstances in which there is not bright illumination. The plaintiff brought suit against the defendant doctor claiming that the surgeon failed to properly perform the surgery and that he failed to obtain a valid informed consent to the procedure.

Plaintiff acknowledged that he was told that all procedures of this kind presented a baseline risk of night-vision problems, but maintained that he was not told that there was an increased risk for him because his pupils were above average size in dim light. Counsel contended that LASIK surgery should not utilize a laser with an optic zone that is smaller than the pupils’ size in dim light.

The defendant doctor contended that the surgery was properly performed and that the patient was informed of all risks. He acknowledge that the issue of pupil size as a predictor of night vision difficulties had been raised as a possibility in the past, but that the connection between pupil size and night vision impairment has never been medically established. Additionally, the doctor stated that he did discuss night-vision problems and pupil size with the patient prior to obtaining consent to the procedure and that the patient did not have risk above that of the general baseline population. The doctor further contended that the laser used in the surgery did not have the largest optic zone available, but that it was the appropriate laser to provide the optimal surgical result. Further, the overwhelming probability at the time of the initial surgery was that the procedure would have alleviated the plaintiff’s existing complaints.

Mr. Lyddane was able to prove that the plaintiff was indeed told of the risks, that the laser used was the proper size and that the claim that pupil size affects night-vision following LASIK surgery was not medically proven. Plaintiff sought recovery of a total of 1.3 million dollars for past and future pain and suffering, as he has a fear of further complications and thus has not undergone surgery to fix the current condition. The jury awarded no damages, finding in favor of the defense on all issues.

Court Dismisses Neurologically Impaired Child's Case Against Hospital at the Close of Plaintiff's Proof During Trial

The infant-plaintiff was born in 1988 with a vestigial tail at the base of his spine. He contended that that cutaneous marker was a well known sign of possible underlying spinal dysraphism. At age seven, the child was diagnosed with a lipoma which had tethered his spinal cord. Neurosurgery was performed at age 7 1/2, leaving the child neurologically impaired to the extent that he walked with a limp, he had to self-catheterize four times a day in order to empty his urinary bladder, he had sexual dysfunction, and he had constant pain in his lower back. Sean F.X. Dugan represented the Hospital and its physicians.

The claim was that the Hospital neonatologist, on examining the tail at birth in the defendant Hospital, advised the attending pediatrician that the tail was simply a skin appendage to be snipped off, without further investigation. Plaintiff claimed that the advice was bad, and that the neonatologist should have advised the pediatrician to follow with an MRI, a CT scan and myelogram, or to have the child seen by a pediatric neurosurgeon or neurologist.

Mr. Dugan and Charles S. Schechter shaped the case during trial in such a way as to exclude, as hearsay, the neonatologist’s alleged advice to the attending pediatrician given at birth. Plaintiffs’ counsel failed to file suit against that neonatologist, and defense counsel successfully argued that plaintiff had not proven that the neonatologist was an employer of the Hospital or held out by the Hospital as its own. Mr. Dugan further established that, in 1988 when this child was born, it was not common knowledge that these vestigial tails, the base of which was proven by Mr. Dugan to not be attached to the spinal canal, was a cutaneous marker of underlying spinal pathology, such as a lipoma with tethered cord. That did not become generally known until several years later.

At trial, plaintiffs’ counsel called a pediatrician, a pediatric neurosurgeon, and a pediatric urologist to discuss the urinary and sexual dysfunction, and a neonatologist to discuss the state of knowledge in 1988. Mr. Dugan successfully precluded the neonatologist from testifying against the Hospital, on the ground there was no foundation for his testimony.

When the young plaintiff testified, there were no dry eyes in the courtroom.

At the close of plaintiffs’ proof, Mr. Dugan asked the Court for an order directing judgment in favor of the defendant Hospital, on the ground that there was no evidence that there was negligence, or a departure from the 1988 standards of care, on the part of any healthcare professional for which the Hospital could be held responsible. After several hearings, this motion was eventually granted by the Court, and the case was dismissed.

Verdict Reporter states that this was one of the ten biggest verdicts of the year. Plaintiffs counsel did not appeal the Trial Courts decision.

Court Directs Judgment in Favor of Defendant Neurologist During Trial at Close of Plaintiff's Proof

A Staten Island judge dismissed plaintiff’s complaint for brain damage, allegedly sustained as a result of the defendant neurologist’s failure to timely diagnose a brain tumor, at the close of plaintiffs’ proof during trial.

Sean F.X. Dugan shaped the case for the defendant neurologist during trial, such that plaintiff’s expert neurologist conceded that the injuries plaintiff sustained were attributable to the surgery performed on his neck by a non-party neurosurgeon. Both the plaintiff and his wife conceded on cross-examination that they had brought all the signs and symptoms which plaintiffs’ counsel now claimed were attributable to the brain tumor, to the attention of the neurosurgeon who operated on plaintiff’s neck, and that it was that neurosurgeon who elected to proceed with the neck surgery, as opposed to brain surgery to remove the tumor.

Thus, when plaintiff’s counsel rested, after presenting all of their evidence at trial, including experts in neurosurgery, neurology and economics to support the seven figure lost earnings claim, Mr. Dugan argued that there was no evidence upon which the jury could find that the defendant neurologist’s failure to diagnose the brain tumor in any way caused the symptomology exhibited by the plaintiff. The Court thus dismissed the complaint for lack of proof and directed a verdict in favor of the defendant neurologist.

The trial judge admitted that he had never before dismissed a case at the close of plaintiffs’ proof during trial; he had always let such cases go to the jury. However, this case had been so crafted that the judge had no alternative but to dismiss. Plaintiffs’ counsel did not appeal the trial courts’ decision. 

Jury Decides Colon Perforation and Permanent Colostomy Did Not Result From Malpractice

In a case which was decided by unanimous jury verdict in September, MCB partner John L. A. Lyddane successfully defended a colonoscopy perforation case which involved an adult female who had a permanent colostomy as a result of the complication.

The unique aspect of the case was that the patient had undergone colonoscopy previously and was unable to tolerate the oral electrolyte solution used to prepare the colon for examination. The doctor decided to employ a Pulsed Irrigation Device to evacuate the stool from the patient’s colon in his office prior to the procedure. The speculum of the device perforated the rectum, and because the patient had an unusually low peritoneal reflection from prior surgery, the perforation was intraperitoneal requiring emergency surgery and a permanent colostomy.

Although a perforation of the colon is an accepted risk of colonoscopy, the attorney for the plaintiff argued that a separate consent was required for the invasive preparation, and that it was negligent to employ the device in the particular patient. The doctor had reported the complication to the manufacturer of the device, and the FDA reports filed by the manufacturer stated that the doctor had admitted that he should not have used the device on the patient.

The defense argued that the device was substantially the same as the speculum used by technicians to administer barium enemas to patients for many years with few complications. The preparation was less traumatic than the colonoscopy which the patient had consented to, and the colonoscopy procedure involves other instruments besides the colonoscope, none of which require separate consents. The jury resolved all liability issues in favor of the defense and did not reach the issues of proximate cause or damages. (New York State Supreme Court, New York County )

Extensive Pre-Trial Investigation Results in Dramatic Reduction of Case Value

A 50-year old patient, with a long history of bowel obstructions, bowel resection, extensive abdominal adhesions, and chronic pain medication addiction was admitted to the Hospital for additional bowel pathology workup. Within 6 hours, while undergoing clinical and laboratory studies, he suffered a sudden cardiac arrest and died. The case presented serious liability issues with plaintiff claiming delayed laboratory workup, failure to perform CT scans, and once the code was called, failure to timely administer blood transfusions. Financial exposure was in excess of $25 million as decedent was a major real estate investor in the revitalized Brooklyn waterfront area.

The defense conducted extensive forensic accounting pre-trial investigation, including testimony from co-investors; it uncovered a prior real estate settlement by decedent's spouse thereby effectively reducing the financial exposure by 80%. A most reasonable settlement in consideration of the liability, was effectuated. MCB Trial Partner was Bruce G. Habian. (New York Supreme Court, New York County.)

Tenant Claims Solvents Fumes Caused Respiratory Disability

Senior Partner John L.A. Lyddane tried a case to a defense verdict involving a tenant in a Manhattan apartment building who claimed Liquid Nails used in her apartment caused her to suffer permanent respiratory disability. The plaintiff sued the building manager, represented by Mr. Lyddane as well as the building's owner, superintendent, handyman and manufacturer of Liquid Nails as well as its parent company. She claimed that the building defendants were negligent in using the product on the convection unit which would volatilize the solvent thus creating toxic fumes which forced her to vacate the apartment and caused irritant induced asthma. Claims against the manufacturer and parent company for deficient warnings were ultimately dismissed on summary judgment.

The defense contended at trial that the handyman acted appropriately and that the product stated that it is safe for use at temperatures exceeding 100 degrees. Mr. Lyddane called a chemist to testify that the toxins in the apartment did not ever exceed the permissible exposure limits set by OSHA and that the Consumer Product Safety Commission had no prior reports of inhalation injuries with the product. In addition, a defense engineer tested the heating unit and established that the cover where the product was used did not become hot enough to exceed the manufacturers' application temperatures. Mr. Lyddane also called an Inspector of the NY Department of Environmental Conservation who had been called to the apartment by the Plaintiff and found that there were no detectible organic compounds with a photo-ionization detector even though Plaintiff claimed to continue smelling the solvent.

Plaintiff claimed that she had to give up her job as a cytopathologist because she was no longer able to tolerate s the solvents and organic compounds in the atmosphere in the laboratory where she worked, and four treating physicians concurred that her condition was disabling and permanent. Plaintiff sought recovery for her past and future pain and suffering as well as lost earnings. The defense physicians were able to prove that a chest x-ray taken prior to the alleged exposure showed Plaintiff had and underlying abnormality and that her physician's claims that a pulmonary function test s proved a disability were being misinterpreted.

In closing, Mr. Lyddane acknowledge that while the Plaintiff did experience a sensitivity reaction to chemicals, she did work for years with formaldehyde and xylene, which are more potent sensitizers than those found in liquid nails. The jury rendered a defense verdict finding that the building defendants were not liable for the alleged disability. (New York State Civil Court, New York County)

Jury Discharges Neurosurgeon for Patient's Postoperative Hemiplecia

A New York County jury found in favor of a neurosurgeon represented by John L.A. Lyddane and Thomas A. Mobilia, who had elected not to use somatosensory evoked potential monitoring during a surgical procedure to relieve severe cervical spinal cord compression in a college professor.

The plaintiff argued that the monitoring was not invasive and thus involved no risk to offset the obvious benefit, that had been recognized by the Hospital which had purchased the equipment at great expense.

The defense argued that the monitoring was not required by the standard of care, and that it was not helpful in an anterior approach to relieve compression at three levels in the cervical spine. The use of the monitoring equipment was optional and the neurosurgeon did use it in procedures where it had been shown to be helpful. The incidence of incorrect information from the monitor posed a greater risk to the patient than if he were monitored by more traditional means.

It was the claim of the plaintiff that his postoperative neurological deficits resulted from a buildup of heat generated by the drill used to remove the dense osteophytes impinging upon the spinal cord. The SSEP monitoring would allegedly have given an advance warning of the heat buildup before the protein of the spinal cord was denatured causing the hemiplegia.

The defense countered that the drilling was only underway when there was constant irrigation to assure visibility and dissipate heat. The patient probably had a preexisting injury to the spinal cord, which combined with a reperfusion injury to produce the postoperative complication.

The liability issues were resolved in favor of the surgeon and the causation and damages issues were not reached. (New York State Supreme Court, New York County)

Defense Verdict for Urologist in Case Involving a Claimed Failure to Diagnose Kidney Cancer

A former superintendent of an upstate school system was referred to our client urologist because of an increased PSA level. During the work-up, our client urologist detected microhematuria in the urine and performed a work-up on the patient, attributing the bleeding to a problem with the prostate gland. A year later, the patient returned, and the work-up revealed the same problem. Thereafter, the patient was diagnosed by another physician with renal cell cancer, and the claim was that the patient had renal cell cancer during our treatment period, which the defendant failed to diagnose. The jury accepted the defense position that the diagnosis made by the defendant of a prostate problem was accurate, and that the kidney cancer was either undetectable during the time the patient saw our client, or was possibly not even present and developed after the patient last saw our client. MC&B trial partner was Anthony M. Sola, assisted by Douglas G. Ammerman (New York State Supreme Court, Rockland County)

Pre-Answer Motion in Federal Court Eliminates Majority of Potential Damages in Billion Dollar Case Against Health System

Multiple plaintiffs filed a suit against a major health system and numerous defendants alleging that defendants fraudulently induced patients to undergo useless treatment. Plaintiffs sought treble damages under the Federal RICO and Lanham Acts, as well as counts based on Unjust Enrichment and Fraud. Plaintiffs claimed total damages in excess of one billion dollars. MC&B filed a lengthy pre-answer motion to dismiss these claims on various grounds. The Federal Judge granted our motion dismissing all the dangerous treble damages claims, as well as those alledging Unjust Enrichment and Fraud. Not only did this motion reduce the value of the cases significantly, and into the realm of standard malpractice damages, but by making the motion before service of the Answer, we were able to eliminate significant amounts of discovery. The result greatly reduces the future legal defense costs for the client. The MC&B attorneys who worked on this complicated matter were partners Anthony M. Sola and Nancy J. Block, and associates Christopher J. Obstarczyk, Jennifer M. Feldman, and Jean Hee Park. (Gotlin, United States District Court, Eastern District, Judge I. Leo Glasser. Decision: May 4, 2005)

Appellate Court Reverses To Dismiss Complaint Against Surgeon and Hospital

The Court of Appeals, New York’s highest court, recently issued a unanimous reversal in defendants’ favor, in an appeal briefed and argued by Ellen B. Fishman.

The plaintiff sued eight years after undergoing cardiac surgery, contending that a surgeon had transmitted an infection to his patient during the procedure. In a New York State Supreme Court, Rosaleen T. McCrory successfully moved on defendants’ behalf to dismiss the action as barred by the two and one-half year statute of limitations applicable to medical malpractice claims.

On plaintiff’s appeal to the intermediate appellate court, the Appellate Division, Second Department, split three-two in favor of sending the matter back to Supreme Court for further discovery. The majority at the Appellate Division was troubled by plaintiff’s claim that the hospital’s chief of infectious diseases had misled him as to the possible source of his infection. On this basis, plaintiff asserted that the doctrine of equitable estoppel should be applied to preclude defendants from asserting their statute of limitations defense. While stopping short of precluding that defense, the Appellate Division concluded that the factual record should be more fully developed before the case was dismissed.

Defendants sought and obtained permission from the Appellate Division for immediate review of this important legal issue by the Court of Appeals. All seven judges of the Court of Appeals agreed with defendants and the dissenting Appellate Division justices that this action was time-barred. Plaintiff was found to have sufficient timely knowledge of his infection and suspicions as to when it may have been transmitted, to have commenced the action within two and one-half years after his discharge from the hospital. Thus, equitable estoppel was not applied and defendants could rely on their valid statute of limitations defense. As a result of this appeal to the Court of Appeals, the action was dismissed in its entirety without either the surgeon or the chief of infectious diseases having to submit to a pre-trial deposition.

Defense Verdict for Neurosurgeon in Case Involving a Fracture of a Cervical Allograft

A woman in her mid-fifties with a history of cervical disc disease had a prior fusion of two vertebrae in her neck at the C5-6 level, employing hardware. Our client, an experienced neurosurgeon, detected a further problem at the C3-4 level, and fused that level, without hardware, using an allograft. A month later, the allograft fractured requiring a major operation with subsequent neurological sequella. The plaintiffs alleged that it was negligent to fuse at a higher level leaving an unprotected space in between two fused areas, and that was what led to the fracture and subsequent problems. The jury unanimously accepted the defense position that the defendant neurosurgeon exercised proper judgment, and the unfortunate result was simply a known complication of the procedure. MC&B trial partner was Anthony M. Sola, assisted by Michael A. Sonkin. (New York State Supreme Court, New York County).

Defense Verdict for Obstetricians Accused of Using Excessive Amounts of Pitocin

A twenty nine-year-old woman was admitted for a labor and delivery with her first child and Pitocin was used to augment the patient’s labor, which initially proceeded well. Subsequently, an emergency cesarean section was performed because of an arrest of decent. Immediately following the delivery, the uterus failed to contract (uterine atony) and the patient sustained a life threatening hemorrhage. To save her life, an emergency hysterectomy had to be performed.

The plaintiffs claimed that our obstetricians utilized excessive amounts of Pitocin causing uterine hyperstimulation, which caused the uterine atony. Plaintiff’s expert, however, conceded on cross-examination that the defendants employed one of the accepted definitions of hyperstimulation and, using that definition, the patient did not, in fact, sustain hyperstimulation. Moreover, the plaintiff’s expert conceded that the medical literature did not support his contention that Pitocin caused uterine atony, but rather that the uterine infection that the mother contracted was a possible cause of the hemorrhage. The jury found for the defense.

The MC&B trial partner was Anthony M. Sola, assisted by Scott O. Frycek. (New York State Supreme Court, Nassau County).

Defense Uses World-Class Obstetrical Doctor to Help Obtain Unanimous Defense Verdict

In a New York County case tried by Senior Partner Bruce Habian, plaintiff’s claim involved too protracted and hyperstimulated labor which progressed toward uterine hemorrhage and ultimate hysterectomy. Aside from the physical injuries, plaintiff claim post traumatic stress disorder because of resultant lack of childbearing status. The injuries were confirmed by treating psychiatrists. The case resulted in a unanimous defendant's verdict. World-class obstetrical witness Dr. Gary Hankins from Galveston, Texas was among the defense witnesses.

Unanimous Defendant's Verdict in Case Involving a Failure to Diagnose Bilateral Hip Dysplasia

Senior Partner Bruce Habian tried to verdict a case involving a claim of failure to diagnose bilateral hip dysplasia over a 15 month period. The alleged failure necessitated multiple open reduction surgeries, with hardware, to correct the hip deformities. The case, which was tried in New York County, resulted in a unanimous defendant's verdict. Experts for both sides included pediatricians and pediatric orthopedic surgeons. Partner Charles S. Schechter assisted in conducting multiple depositions of treating specialist surgeons.

Defense Verdict: A Life Saved Yet, with Significant Gynecologic Complications

Senior Partner Bruce G. Habian received a defense verdict in Supreme Court, New York County in a case involving a patient who presented to the emergency room with significant hemorrhage (clinically noted, as well as, with low lab values) 10 days after a normal spontaneous vaginal delivery. In an attempt to avoid an indicated hysterectomy, the attending obstetrician performed a D&C and packed the uterus, with a plan to embolize the arteries in the future. During the course of the packing, significant lacerations of the bladder, cervix and vaginal wall occurred, ultimately necessitating a hysterectomy and significant bladder repair. Notwithstanding these complications, the jury returned a defense verdict. This indicated an appreciation for the temporizing nature of the conservative - packing - approach in light of the severe bleeding. The ultimate hysterectomy was argued as a potential procedure at the outset, essentially, unavoidable under the circumstances.

Defense Successfully Uses Pediatric Dermatology Expert in Case Involving a Child with Disfiguring Scars

Senior Partner Bruce Habian tried to a unanimous defense verdict a case in which he represented a major metropolitan teaching institute. This was a sensitive case involving a child with disfiguring chest and abdominal scars, with the claim that we affirmatively burned the tissue of this premature baby in the Neonatal Intensive Care Unit. The plaintiff's expert confirmed a res ipsa loquitur theory (no identification of the negligence, but the injury spoke for itself as to its occurrence). The defense established through pediatric dermatology expert testimony that this newborn had sustained an extremely rare (13 cases reported in the literature), skin pathology called Congenital Erosive Vesicular Dermatosis. No such diagnosis was delineated in the treatment record with all practitioners - pediatricians, neonatologists and infectious disease specialists - claiming the etiology of the condition was unknown. The emotions of the case were confirmed by graphic pictures of the aforementioned injury to the skin. Partner Michael A. Sonkin conducted an exhaustive search of the relevant literature concerning this rare dermatologic condition.

Defense Verdict in a Bariatric Surgery Case Involving Serious Postoperative Complications

Senior Partner Bruce G. Habian obtained a defense verdict in New York County where plaintiff claimed improper surgery performed in a patient with serious co-morbidities including rheumatoid arthritis. The steroid medication to control the arthritis compromised the postoperative result. Long-term open abdominal wounds, depicted by dramatic photographs and multiple revision operations were presented to the jury. Partner Michael A. Sonkin conducted extensive pre-trial discovery of non-party physician witnesses.

Spoliation Decision Reversed; Technology Concerning Computer Maintained Hospital Record Clarified By Expert Opinion

Senior Partner Bruce G. Habian was retained by a hospital client wherein the hospital's prior law firm received the decision striking the hospital's Answer for inability to produce crucial fetal heart rate tracings. The computer system utilized never recorded the data and therefore it was not destroyed by the hospital. A fact explained by Mr. Habian's retention of sophisticated technology experts well-versed in the system's intricacies.

Appellate Partner Ellen B. Fishman argued the appeal; the Court reversed the Trial Court's ruling, reinstated the Answer and substituted an adverse inference submission to the jury when the case would be tried. Therefore, the liability defense on the part of the hospital was preserved.

Defense Verdict After Complications of Hysterectomy Required Colostomy

Senior Partner, John L.A. Lyddane, obtained a verdict in favor of a gynecologist and gynecological oncologist who performed a complicated laparoscopic hysterectomy and bilateral salpingo-oopherectomy on a patient who developed a bowel leak and required a colostomy and three subsequent operative procedures. Despite claims of unnecessary surgery, lack of informed consent, and negligent postoperative care, the jury discharged both surgeons from liability for the patient's complications after lengthy deliberations. Partner Scott O. Frycek assisted in securing the defense experts and preparing the case for trial.

Defense Verdict in Alleged Delay in Diagnosis of Atrial-Septal Defect

Senior Partner John L.A. Lyddane obtained a defendant's verdict on all liability issues where a 56 year old wife of a physician claimed that her cardiologist delayed the diagnosis of an atrial-septal defect for four years while evaluating her for increasing symptoms of cardiac insufficiency. After a lengthy trial involving testimony from four treating physicians and two cardiology expert witnesses, the jury accepted the position of the defendant that this was an atypical case which defied earlier attempts to diagnose.

Defense Verdict in an Inflammatory Breast Cancer Death Case

Senior partner, Bruce G. Habian, obtained a defense verdict in Kings County in a matter where plaintiff claimed a significant delay in diagnosis of a breast lesion. Infection mastitis was definitely present in the breast before an inflammatory lesion superseded. The plaintiff’s position that the tumor began as a less lethal form of cancer and then evolved into inflammatory malignancy was rejected by the jury as a result of the defense expert breast pathologist’s testimony. Histological samples outlining the cellular characteristics of the original tumor were produced for the jury, and described as incapable of any cure.

Defense Verdict in Neurosurgical Brain Damage Claim

Senior Partner, John L.A. Lyddane, obtained a jury verdict in favor of two neurosurgeons after a long in Queens County. The patient had undergone emergency surgery for traumatic bleeding into the brain parenchyma after a fall, and the claims involved a delay in treatment as well as mismanagement of a postoperative infection of the skull flap, hardware, and brain. The jury determined all liability issues in favor of the neurosurgeons without reaching the issues of causation or damages.  Partner Olimpio A. Russo assisted in the retention of the defense experts and preparation for trial.

Defense Verdict in Ceiling Collapse Brain Damage Claim

Senior Partner, John L.A. Lyddane, obtained a defendants' verdict on behalf of a building owner and managing agent after a tenant was struck by a falling ceiling in her apartment. Since the tenant had undergone five prior aneurysm procedures, the issue was whether the conceded damages were the result of the accident or the pre-existing medical condition. Although the Bronx County jury found that there was negligence on the part of the defendants, they agreed that injuries were unrelated to the accident and awarded no damages. Partner Steven A. Lavietes assisted with the discovery and trial preparation.

Defense Verdict in an Infant Case Concerning Group Beta Strep Bacteria Prenatal Screening

Senior partner, Bruce G. Habian, obtained a defense verdict in New York County in a case where plaintiff claimed improper screening technique for Group B Strep Infection (GBS) bacteria. An extensive presentation of the American Congress of Obstetricians & Gynecologists and Center for Disease Control criteria concerning GBS testing was the focus of the case. The plaintiff’s expert obstetrician was significantly challenged concerning the methods of securing adequate sample screening tissues. The defense was able to establish the rare subsequent colonization of GBS occurring after appropriate, routine, 35 week gestation screening procedures. The product of the pregnancy sustained significant cognitive deficits, all attributable to GBS. Partner, Kevin P. McManus, conducted the extensive pre-trial discovery workup in the matter.

Jury Discharges Midwife of Liability for Erb's Palsy at Delivery

Senior Partner, John L.A. Lyddane, obtained a unanimous verdict in favor of a nurse midwife who delivered a male infant with a brachial plexus injury at birth. The supervising obstetrician had been extricated on a motion for summary judgment and the jury accepted the position of the midwife that she was qualified to deliver the infant without turning the case over to the obstetrician. Despite serious differences between the patient and her LaMaze coach on the one hand and the delivery team on the other, the jury found that the injury occurred in spite of the correctly executed procedures at delivery.

Unique Defense Verdict in Nursing Home Case

Partner Charles S. Schechter recently tried this long term care case to verdict in Supreme Court, Nassau County. The case involved treatment rendered to a then 56 year old married woman with a history of progressive dementia. The decedent resided at the defendant facility until her death 5 1/2 years later. During the admission, her condition deteriorated as her dementia progressed. In the last year of the decedent’s life, she lost the ability to ambulate and was wheelchair bound. Although the decedent was not yet bed immobile, a care plan required routine turning and positioning. However, turning and positioning was not implemented until several months later.

Five months after the decent became wheelchair bound, blisters were noted on the left hip and right shoulder, and a lesion was observed on the right buttocks. A physician was consulted and determined that the buttocks lesion was an abscess. Treatment of the abscess was started immediately, and a turning and positioning schedule was also implemented. Over the next few weeks the abscess opened and became infected. The decedent was treated at a local hospital for what was diagnosed there as an infected Stage IV pressure ulcer and sepsis. The ulcer was debrided and the decedent returned to the nursing home, where she expired several months later.
At trial, plaintiff alleged nursing home abuse, negligence and violations of Public Health Law 2801-d. Plaintiff alleged that defendant facility violated seven federal regulations governing nursing home care, and sought both compensatory and punitive damages. Plaintiff focused on wound care management and alleged improper record keeping. MCB contended that the overall management of the resident’s care was appropriate, her entire course was dictated by the progressive nature of her disease and that there was no evidence of any abuse. We further contended that the buttock ulcer was an abscess, and not a pressure ulcer, so that any allegations in respect to turning and positioning were immaterial.

After approximately four weeks of trial, the jury returned a defense verdict on all twelve liability questions which were presented for its consideration.

Jury Finds Departure but Declines to Award Damages for Colonoscopy Perforation

Senior Partner, John L.A. Lyddane, successfully defended a gastroenterologist in New York County, where it was claimed that he had negligently performed a colonoscopy causing a perforation of the colon in attempting to bypass an obstruction. It was also claimed that there was a negligent delay in recognizing the bowel injury which required a surgical repair and diverting colostomy. The jury found in favor of the doctor on all claims relating to the technique of the procedure, and decided that although there was a delay in diagnosing the perforation, it did not contribute to the claimed injuries.

Did Cerebral Palsy Result from Brain Insult Sustained at Birth or at 33 Weeks Gestation?

In this case, a child had metabolic acidosis at birth and was not breathing. The child was resuscitated bringing the 5 minute Apgar up to 7. A brain MRI was taken at one year and showed damage to the white matter of the child's brain. There were no neonatal seizures and the defense showed that the term newborn's brain was afflicted with periventricular leukomalcia.

The jury found several departures from obstetrical standards of care, however, found those departures did not cause the child's brain damage. The defense proved to the jury that the girl's brain damage did not occur at birth, but had already occurred in utero by 33 weeks gestation.

This case was tried by Sean F.X. Dugan and Jacqueline D. Berger in the Supreme Court, Queens County.

Defense Verdict in Claimed Delay in Diagnosis by Terminal Cancer Patient

Senior Partner, John L.A. Lyddane, obtained a jury verdict discharging his client gynecologist from responsibility for a delayed diagnosis of ovarian cancer in a terminal patient. Although the patient had demonstrated cystic structures on her ovaries for several years before the diagnosis of ovarian cancer was made, the defense experts proved that the type of cancer the patient had is very aggressive and would not have taken years to progress to the mestatic state it was in at the time of diagnosis. Although the jurors were sympathetic to the patient and her family, they found no departure from accepted practice on the part of the gynecologist. Partner Thomas J. Kroczynski assisted in the defense of the case.

Defense Verdict in an Extreme Premature Neurologic Infant Case

Senior partner, Bruce G. Habian, obtained a unanimous defense verdict in New York County in a case where plaintiff claimed improper obstetrical management involving a 24 – 25 week extreme premature fetus. There were allegations of ominous fetal heart tracings, and significant head bleeds that were related to oxygen deprivation. The defense capitalized on excellent umbilical cord gases that supported the issue of proper oxygenation levels. In addition, early gestation neuro anatomy provided evidence of immature brain structure at risk for hemorrhage – all related to neonatal morbidity and permanent disabilities. A full complement of maternal/fetal, neonatal and pediatric neurology experts were produced by the defense given the sophisticated subject matter. Partner, Kevin P McManus, assisted with extensive pre-trial preparation.

Defense Verdict in Complications of Hysterectomy Procedure

Senior Partner, John L.A. Lyddane, obtained a unanimous verdict in favor of a gynecologist whose patient suffered a ureterovaginal fistula following a hysterectomy procedure. Although the medical experts disagreed as to whether the injury to the ureter and subsequent operative procedures were acceptable complications of a well executed hysterectomy procedure, and there were many factual issues between the surgeon and the patient, the jury determined the issues without requesting any of the exhibits during deliberations. Partner Thomas J. Kroczynski prepared the case for trial.

Twelve Years from Date of Treatment, Case Resolved in Favor of Defendant Doctor

Senior trial partner Bruce G. Habian received a defense verdict in New York County where he represented a Board Certified nephrologist who had been involved in kidney stone treatment for the patient during calendar year 2001. The theory of the case was that excessive water ingestion - per the defense, this was contrary to the physician's specific instructions concerning electrolyte maintenance - caused water intoxication and resulting hyponatremia. The correction of this condition was criticized, with the claim that it caused demyelination of brain tissue and permanent brain damage.

The course of treatment spanned 11 years, and experts in nephrology, rehabilitation neurology, neuropsychology and neuroradiology were involved in the prosecution and defense. Senior associate Olga Nikiciuk ably assisted in the trial preparation which involved digesting and collating 12 years worth of hospital charts, lab values and treatment records for well over 50 specialists who had consulted for the plaintiff in the intervening years. In addition crucial non-party witness depositions established important treatment testimony.

RICO Claims Dismissed in Multi-Million Dollar Lawsuit Alleging Real Estate Fraud

Plaintiffs alleged that various defendants fraudulently induced them to pay fees to other defendants to obtain millions of dollars in financing real estate transactions. Plaintiffs alleged that the defendant whom MCB represented violated the Racketeering Influenced and Corrupt Organizations Act (“RICO”) by funneling those funds through its attorney client fund. MCB made a pre-Answer motion, asking the Court to dismiss the RICO claims for failure to state a cause of action. The Court granted the motion, thereby allowing the defendants to avoid having to engage in extensive and costly discovery. The motion was made by Senior Partner Peter T. Crean and Partner Gregory J. Radomisli in the United States District Court, Southern District of New York.

Defense Verdict in Dental Malpractice Case

MCB Senior Trial Partner Jeffrey A. Shor obtained a defense verdict in New York County in a case where plaintiff claimed the defendant periodontist negligently performed a sinus lift resulting in a torn membrane and post-operative infection. The defense argued that the tearing of the membrane is often an unavoidable consequence of the procedure occurring in as many as one third of all sinus lift procedures.

Plaintiff's Verdict Overturned on Appeal and Action Dismissed

Senior Partner Peter T. Crean and Appellate partner Barbara D. Goldberg were successful in arguing on appeal that a verdict awarding damages for vocal cord paralysis following an aortic aneurysm repair should be set aside and the action dismissed. The plaintiff alleged that the defendant, a Board Certified cardiac surgeon, had negligently caused injury to the plaintiff's left recurrent laryngeal nerve during the course of an aortic aneurysm repair, resulting in paralysis of his left vocal cord. All the physicians who testified, including the plaintiff's experts, acknowledged that vocal cord paralysis occurs in 15% of surgeries on this area of the aorta despite appropriate surgical technique and such is a "known" risk of this type of surgery.

According to the plaintiff's surgical expert, the defendant departed from accepted practice by not tracing the nerve with his finger to ensure that it was not closer to the aorta than the defendant assumed. (According to the defense witnesses, this would have posed a substantial risk of injury to the nerve and other adjacent structures.)

A principal argument on appeal, following the denial of the defendant's motion to set aside the verdict, was that the plaintiff's expert's testimony was impermissibly speculative in light of the known risk of vocal cord paralysis, and that there was no evidence as to how or when during the procedure the nerve was injured. The Appellate Division agreed, holding that there was "no valid line of reasoning and permissible inferences by which the jury could have rationally concluded that a deviation from accepted community standards of practice" by the cardiac surgeon was a proximate cause of the injury.

Defense Verdict in Orthopedic Surgery Case

Senior Trial Partner Sean F.X. Dugan and Partner Laurie A. Annunziato recently received a defense verdict in the Supreme Court, Queens County. The case involved a 28 year old working woman who limped into the office of an orthopedic surgeon, complaining that, following recent back trauma, she experienced back pain radiating down her left leg. On examination, the only positive finding was weakness of dorsiflexion of the great toe on her left foot. The surgeon claimed he urged his patient to obtain a MRI study of her lower spine to rule out a herniated disc in the lumbosacral area; the patient denied any such order was given. Within four weeks, the patient developed cauda equina syndrome, a permanent, disabling, very painful condition.

At trial, plaintiff’s counsel claimed the surgeon missed the subtle findings of cauda equina – the radicular pain, urinary retention, or sensory loss in her perianal region.

The defense successfully established that the diagnosis is based on gross findings of the three symptoms together, and plaintiff had only the pain in the back, radiating down her leg, which is consistent with a herniated lumbosacral disc.

Defense Verdict In Case Involving Claim of Improper Management of Perforation and Improper Surgical Technique

Partner Erik Kapner recently received a defense verdict in Suffolk County Supreme Court following a 2 week trial. The case involved a 50 year old woman who had developed diverticulitis of the colon and was admitted to the hospital under the care of defendant, a general surgeon. The plaintiff's diverticulitis was treated conservatively with bowel rest and antibiotics. She developed a perforation which caused an abscess and the defendant doctor performed an exploratory laparotomy but could not locate the source of perforation in sigmoid colon. He therefore drained the abscess, inserted a drain tube and did not perform a colostomy. Post operatively she developed a fistula which was managed conservatively. After discharge from the hospital, the fistula broke down and she required readmission to the hospital. A colostomy was performed by another surgeon and was later reversed at another hospital after 6 months.

Plaintiff claimed. Mr. Kapner asserted the defenses claims that the defendant doctor used his best judgment and given his operative findings properly sought to avoid a colostomy during exploratory laparotomy. The jury returned a unanimous verdict of no liability on behalf of the defendant doctor. Of interest is that following a major snowstorm only 5 jurors remained and the parties stipulated to verdict by 5 jurors, which had to be unanimous.

Defense Verdict in Melanoma Case

Senior Partner Jeffrey A. Shor recently tried a case to a defense verdict. The case involved a 51 year old married father of two, who presented to defendant dermatologist because of a suspicious mole on his back. The dermatologist promptly made a diagnosis of melanoma and referred the patient to the co-defendant oncological surgeon, who ordered a pre-operative PET/CT scan to ascertain that there was no metastasis of the cancer prior to his operative procedure wherein he performed a wide and deep excision of the lesion. The results of the radiology revealed a 5 millimeter subpleural nodule which was not believed to be of any significance but the radiologist who interpreted the scan indicated that a follow up CT scan should be performed in the future. The patient only returned to the surgeon twice to have his sutures removed and did not follow the surgeon’s advice to see him on a regular basis. Accordingly, the surgeon was not afforded the opportunity to order the follow up CT scan. The dermatologist was aware of the outstanding CT scan and continued to see the patient approximately twelve times over the next two years for skin examinations. The dermatologist never ordered the follow up CT scan as the interpretation of such a test was beyond his expertise. In December 2008, the patient was found to have wide spread metastatic disease in his lungs, liver, kidneys and brain and died in March 2009. It was claimed that the dermatologist knew of the outstanding CT scan and should have ordered same. The defense argued that a follow up CT scan is an extremely sophisticated test requiring expertise well beyond that of a dermatologist and that the only obligation the dermatologist had to the patient was to advise him to return to see the surgeon.

However, the defense of this case was complicated by the fact that since the patient had died, The Dead Man’s Statue was applicable and, hence, our client was not afforded the opportunity to testify as to any conversations that he had with the decedent. However, our client was able to testify as to those entries in his office records which indicated that the patient was exceedingly non-compliant. The plaintiff’s attorney asked for $35,000,000 in damages and the jury returned a verdict after deliberating for 30 minutes in favor of our client.

Defense Verdict in Alleged Perforation During Termination of Pregnancy Case

Senior Trial Partner Jeff Lawton won a defense verdict in Queens County in a case involving an alleged perforation following a first trimester termination of pregnancy procedure on a 20 year old patient. Plaintiff claimed that the defendant gynecologist negligently performed the procedure, perforating the uterus with the surgical instruments and failed to explore for the possibility of a perforation with the use of an additional curette. The defense explained that perforation during an abortion was a known and accepted risk and complication. The defendant and the experts explained the procedure with anatomical diagrams, photographs of the instruments used, and a sample suction curette. The experts proved there was no perforation found during a subsequent exploratory laparotomy and instead, the plaintiff had a subclinical infection. Finally the experts explained the use of an additional curette to explore for a perforation, was not the standard of care and would only increase the likelihood of a perforation or the spread of an infection.

Jury Agrees Emergency Surgery for an Abdominal Perforation Wast Timely PerformedI'm a news headline

Senior Trial Partner Jeff Lawton won a unanimous defense verdict in New York County involving the timing of a repair procedure for an abdominal perforation. Plaintiff's decedent was 66 years of age and previously had undergone a Whipple Procedure at a different institution. She presented to the Emergency Room and a flat plate X-ray revealed the presence of "free air". Plaintiff's expert claimed the Hospital was too slow in recognizing the perforation and should have done surgery an hour or two from the discovery of "free air". The defense countered that the plaintiff's decedent needed a CT scan to map out the corrective surgery, particularly as the prior Whipple procedure had altered the abdominal anatomy.

The defense experts explained the plaintiff needed fluid resuscitation in the Surgical Intensive Care Unit, otherwise the plaintiff would have expired on the surgical operating room table. Additionally we were able to show that the plaintiff's decedent did not die due to the timing of the surgery, rather, she was severally immunocompromised as she was on Chemotherapy.

Defense Verdict: Jury determines that Orthopedic Surgeon did not cause nerve or mechanical injury during hip replacement

Senior Trial Partner John J. Barbera recently obtained a malpractice defense verdict in Supreme Court, Dutchess County. The case involved an 81 year old previously ambulatory woman who was permanently confined to a wheelchair following hip replacement surgery. The plaintiff claimed that the hip prothesis was improperly sized which caused a mechanical weakness. In addition, the plaintiff also claimed that an iatrogenic injury to the sciatic nerve further compounded the mechanical problem.

The defense called experts in orthopedic surgery and neurology to demonstrate through MRI studies and EMG tests that the patient had a pre-existing bilateral neuropathy as opposed to a focal nerve injury that rendered her permanently weakened after the hip surgery. The jury determined that the hip prothesis was sized appropriately and implanted without causing any mechanical or neurological injury to the plaintiff.

Defense Verdict: Conservative Treatment & Post-Operative Injuries Disproved at Trial

Senior Partner, Jeffrey A. Shor, recently received a defense verdict in Supreme Court, Nassau County in a case involving a 46 year-old federal air marshal, who underwent a surgical excision of the plantar heal spur and plantar fascia tenotomy performed by the defendant-podiatrist. Post-operatively, plaintiff continued to complain of pain and was subsequently diagnosed with an incomplete stress fracture at the operative site and Reflex Sympathetic Dystrophy and with associated pain resulting in his inability to work and substantial lost earnings.Plaintiff claimed that conservative modalities should have been utilized for a longer period of time before attempting surgical treatment. The defense maintained following a proper informed consent, plaintiff declined conservative measures and opted for surgery. The defense’s neurologist testified that the plaintiff did not possess any of the sign and symptoms commonly associated with RSD.

Defense Verdict: Premature Discharge Not Cause of Death

Senior Partner John L.A. Lyddane, with the assistance of Partner Steven A. Lavietes, produced a defendant’s verdict in Supreme Court, Richmond County. In this case, an adult male patient was treated for abdominal pain over the course of a week in the hospital, but died as a result of mesenteric ischemia shortly after discharge. The defense pathologist showed that showers of microembolic from the aorta caused an inoperable occlusion of the mesenteric arteries, from which the patient’s death was inevitable.

Defense Verdict: Jury Finds Diabetic's Death Unrelated to Deficient Medical Care

Senior Trial Partner John L.A. Lyddane recently tried a case to a defense verdict in the Supreme Court, Richmond County. The case involved a 48 year old mother of two, who was a poorly controlled diabetic and died as a result of her first myocardial infarction, after 44 years of care by the defendant family practitioner. The Estate of the patient claimed that she should have had a workup of her cardiac condition which would have averted her death.

The defense focused on the absence of any proof that an earlier cardiology workup would have demonstrated a treatable lesion, and the doctor’s effective management of a poorly compliant patient. Although the jury found that there should have been a cardiology referral, it also found that the failure to refer was not a cause of the patient’s death.

Defense Verdict: In Unavoidable Extreme Prematurity Case

Senior Partner Bruce G. Habian obtained a defense verdict in Supreme Court, Queens County in a case involving a patient with 22 3/7 gestation pregnancy who presented with contraction activity, and severe dilated membranes; with an appreciation of the non-viable status of the fetus, the mother was counseled for potential termination and refused. Careful observation was undertaken, after amniocentesis failed to identify an offending organism. Plaintiff argued for antibiotics, consideration for cerclage, and tocolytics, so as to extend the labor.These modalities were not indicated in consideration of the lack of identification of infection, and the progressive membrane status. The mother delivered a viable infant at 23 weeks; extensive cerebral palsy insued. A defense verdict was obtained in this complicated obstetrical case. Any meaningful extension of the gestational age was not accepted by the jury. The dangers of maintaining the pregnancy - given the infectious trigger of the contractions - were most apparent. In this clinical setting, the mother’s health concerning systemic infection was the focus of the defense.

Appellate Court Affirms Dismissal of Plaintiff's Case Against Nursing Home

Defense Verdict: Renal Failure Attributed to Visicol Prep

Senior Partners John L.A. Lyddane and Michael A. Sonkin received a defense verdict in Supreme Court, Nassau County in a case involving an adult male who claimed that his gastroenterologist negligently prescribed a phosphosoda colonoscopy preparation which caused renal failure requiring a kidney transplant. Although the patient’s treating nephrologist testified at trial that the Visicol caused the renal failure and should not have been used, the defense proved that the patient had idiopathic kidney failure and the defendant physician was exonerated.

Trial Judge Strikes Plaintiff ’s Expert’s Testimony

Partner Erik Kapner recently received a unanimous defense verdict in Supreme Court, Kings County in a case involving a diabetic patient who underwent drainage of a foot ulcer. Plaintiff ’s foot was found to be stable and the defendant-podiatrist was not called back into the case by the attending physician. Plaintiff went on to develop gangrene, resulting in amputation of the toes at another hospital. Plaintiff claimed that the defendant podiatrist should have continued to follow him. The defense claimed that the care of the plaintiff ’s foot was taken over by the co-defendants, the attending physician and the infectious disease specialist, who settled before trial. Plaintiff ’s expert disclosure for expert podiatrist made claims against settling co-defendants. On cross-examination, plaintiff ’s expert denied that he ever held those opinions and his expert testimony was stricken as inconsistent with expert disclosure. Plaintiff then called a treating podiatrist as his expert, but the jury returned a verdict in favor of the defendant podiatrist.

Defense Verdict in Alleged Perforation During Termination of Pregnancy Case

Senior Trial Partner Jeff Lawton won a defense verdict in Queens County in a case involving an alleged perforation following a first trimester termination of pregnancy procedure on a 20 year old patient. Plaintiff claimed that the defendant gynecologist negligently performed the procedure, perforating the uterus with the surgical instruments and failed to explore for the possibility of a perforation with the use of an additional curette. The defense explained that perforation during an abortion was a known and accepted risk and complication. The defendant and the experts explained the procedure with anatomical diagrams, photographs of the instruments used, and a sample suction curette. The experts proved there was no perforation found during a subsequent exploratory laparotomy and instead, the plaintiff had a subclinical infection. Finally the experts explained the use of an additional curette to explore for a perforation, was not the standard of care and would only increase the likelihood of a perforation or the spread of an infection.

Jury Agrees Emergency Surgery for an Abdominal Perforation Wast Timely Performed

Senior Trial Partner Jeff Lawton won a unanimous defense verdict in New York County involving the timing of a repair procedure for an abdominal perforation. Plaintiff's decedent was 66 years of age and previously had undergone a Whipple Procedure at a different institution. She presented to the Emergency Room and a flat plate X-ray revealed the presence of "free air". Plaintiff's expert claimed the Hospital was too slow in recognizing the perforation and should have done surgery an hour or two from the discovery of "free air". The defense countered that the plaintiff's decedent needed a CT scan to map out the corrective surgery, particularly as the prior Whipple procedure had altered the abdominal anatomy.

The defense experts explained the plaintiff needed fluid resuscitation in the Surgical Intensive Care Unit, otherwise the plaintiff would have expired on the surgical operating room table. Additionally we were able to show that the plaintiff's decedent did not die due to the timing of the surgery, rather, she was severally immunocompromised as she was on Chemotherapy.

Osteoporosis Patient Attemps to Hold Gynecologist Responsible for Fractures

Partner Thomas J. Kroczynski recently received a unanimous defense verdict in Supreme Court, Suffolk County, in a case involving a 56-year old woman with a history of left leg fractures who was taking Premarin, Calcium supplements and multivitamins (MVI). After a bone mineral density study showed worsening osteopenia, plaintiff decided to stop taking Premarin because of its potential risks. The defendant-gynecologist offered the option of taking a Bisphosphonate, or continuing osteopenia treatment with only Calcium and MVI; the patient chose the latter. The patient developed osteoporosis of the spine and fell and fractured her right tibia and fibula. Plaintiff claimed she should have been prescribed both Premarin and a Bisphosphonate when her osteopenia worsened, and had this been done, it would have reduced the risk of osteoporosis developing and the fractures of the right tibia and fibula from occurring. The defense was able to show that it was acceptable practice to treat plaintiff ’s osteopenia with Calcium and MVI and that osteoporosis did not cause or contribute to the fractures of the right tibia and fibula.

Dismissal of Federal EMTALA Claim in Wrongful Death Action

MCB Partners Joseph L. DeMarzo and Gregory J. Radomisli Obtain Dismissal of Federal EMTALA Claim in Wrongful Death Action

Plaintiff’s decedent presented to the Emergency Department of the MCB client hospital complaining of a high fever and shortness of breath. She was evaluated and admitted the same day, and remained for three weeks, after which she was discharged. She died the following day.

Plaintiff’s son brought an action in the United States District Court for the Eastern District of New York, seeking damages based upon an alleged Federal EMTALA violation and state law medical malpractice claims. MCB moved to dismiss the EMTALA claim, arguing that EMTALA does not apply where a patient is admitted to a hospital from the ED. Plaintiff argued in opposition to the motion that an EMTALA claim is not limited to ED care, and that the patient was not stable upon discharge. Our research revealed that there is a split amongst the Federal Circuit Courts of Appeal as to whether an EMTALA claim is limited to the ED setting, or whether an EMTALA claim may exist even after a patient in admitted as an inpatient.

The United States District Court, Eastern District of New York (Weinstein, J.) granted the motion, finding that the hospital fulfilled its duties under EMTALA by screening and stabilizing the patient before discharging her. This decision is significant in that the Court dismissed the EMTALA claim once we showed that the patient had been stabilized, even if she was allegedly not stable upon discharge. Further, to our knowledge, this is the only Federal case in New York which has ruled upon the issue of the applicability of EMTALA once a patient is admitted from the ED.