March 2019: Defense Verdict in Ureteral injury during Robotic Hysterectomy

Senior Trial Partner Anthony M. Sola, assisted by Partner Daniel L. Freidlin and Associate Geoffrey A. Bleau, obtained a defense verdict after a 3 week trial in Supreme Court, Nassau County before Judge Steven Jaeger. The case involved an allegation that the defendant gynecologist negligently injured the 49 year old patient’s ureter, and then failed to detect  the injury intraoperatively, during a DaVinci Robotic assisted hysterectomy. Eight  days after discharge, the patient was readmitted to the hospital with  a totally transected and necrotic ureter.  She underwent several procedures that failed before a successful re-implantation of the ureter was accomplished. She claimed, however, that she suffered from  permanent  incontinence  as a result, among other complaints.

At  trial the defense demonstrated the injury was a thermal injury from cauterization of the nearby uterine artery that could not be detected intraoperatively.   Consequently, it was a known complication.  As to plaintiff’s complaint of a permanent  incontinence, we were  able to impeach her credibility in various ways,  including by demonstrating how subsequent urodynamic testing was inconsistent with her claims.

The jury returned a unanimous verdict of no departures.

May 2018: Defense Verdict in Failure to Diagnose DLBCL

May 2018. Senior Trial Partner Anthony M. Sola, assisted by Of Counsel Tracy A. Abramson and Associate Jacqueline A. Wild,  obtained a defense verdict after a 3 week trial in Supreme Court, Nassau County before Justice Thomas  Feinman.   The case involved an allegation that the defendant physicians failed to diagnose a Diffuse Large B Cell Lymphoma (DLBCL) in the lung  of a 29 year old woman during her pregnancy. During her entire pregnancy she   complained of  a severe cough  and chest pain, and,  starting in the second trimester,  she developed a severe rash over most of her body.  A month after her delivery, her family doctor ordered a chest x-ray which soon after led to a diagnosis of a Stage IV DLBCL for which she was treated at Memorial Sloan Kettering Medical Center with an experimental therapy protocol. She was still in remission at the time of trial. In retrospect, the cough, chest pain and rash were due to the DLBCL.

At trial, the defense focused on the fact that the plaintiff’s complaints were outside of their area of expertise so they  properly referred the patient to a pulmonary specialist and a dermatologist who were not named defendants. Plaintiff claimed that the obstetricians were acting as her primary care doctor during the pregnancy and failed to coordinate the care and arrange, among other things,  for  a chest imaging study suggested by one of the pulmonologists. We were able to impeach the credibility of the plaintiff on the issue of who was her primary care physician by introducing a record we uncovered during our  pretrial preparation that showed the plaintiff went to a different doctor during her pregnancy at which time she wrote on that doctor’s intake form the name of  a another  doctor as her primary  care physician. We further were able to demonstrate that the suggestion for  a chest imaging study was one that the outside specialist was considering performing and was not a recommendation to the obstetricians to order. Finally, we were able to prove that the patient herself failed to follow up with some of  the outside specialists.

The jury returned a verdict in favor of the defendants dismissing the entire complaint.  Because the jury did not completely follow the instructions on the  verdict sheet, they went further than required and also answered the culpable conduct questions, finding that the plaintiff herself was 100% responsible for any delay in the diagnosis!

April 2018: Defense Verdict in case involving allegations of sexual assault

Senior partner Michael Sonkin recently obtained a defense verdict in New York County Supreme Court following a three week trial in a case involving allegations of repeated sexual assaults and forced, coercive sex acts over a twenty month period by a physical medicine and rehabilitation medicine physician against his patient.  It was alleged by the plaintiff that her physician forcibly committed a sexual assault while in the midst of treatment, and that this was repeated 65 times over the course of the next twenty months with the physician allegedly using threats of termination of medical care, promises of assistance with the patient's on-going custody and family court proceedings, and financial enticements to continue the relationship.  There were numerous in limine motions that resulted in the preclusion of several items of evidence including non-conclusive DNA test results, non-authenticated and arguably incomplete audio tape recordings of sexual activities and conversations between plaintiff and defendant, a detailed diary purportedly maintained by the plaintiff, and correspondence purportedly written by the physician that falsely stated that the plaintiff was working for his practice.  At trial, the physician adamantly denied the allegations, including even a consensual sexual relationship, and only acknowledged the existence of a physician-patient relationship and a further personal relationship arising from their shared experiences as Chinese immigrants.  Troubling to the defense, this personal relationship led the doctor to have many telephone conversations with the plaintiff, often at very late hours and for long periods of time, and also led him to co-sign an apartment lease with the plaintiff as the guarantor of her payments.  The defense was able to demonstrate that the plaintiff had numerous credibility issues that included a highly inflammatory Bill of Particulars that the plaintiff attempted to walk back from at trial, the lack of reporting of the doctor's alleged behavior to the authorities or the plaintiff's social worker who she was actively seeing at the time, continued contacts in many forms with the defendant despite allegedly on-going sexual assaults and inappropriate behavior, and a pattern of similar behavior in the plaintiff's past that was documented by her own internet postings of failed relationships with subsequent accusations of rape which was introduced and shown to the jury.  Following a three week trial, the jury deliberated for approximately 90 minutes before returning a unanimous verdict finding no departures against the doctor.  Mr. Sonkin was assisted in the defense of this case by partners Barbara Goldberg and Greg Radomisli, and associate Lynn Hsieh.

April 2018: Defense Verdict in Brain Cancer case

Senior Trial Partner Bruce G. Habian, with discovery having been conducted by partner Gregory Radomisli, obtained a unanimous defense, in Supreme Court, New York County, before Judge Joan Madden.  The case involved a phase I safety clinical trial wherein chemotherapy – Temodar – was injected directly into the residual tumor site via middle cerebral and posterior cerebral arteries.  The decedent had previously undergone removal of a glioblastoma brain tumor.  As a result of the intra-arterial experimental trial, the brainstem tissue was affected resulting in a toxic stroke.  The paralysis sustained lasted 2 years prior to the patient’s death.  Plaintiff claimed that the closeness of the brainstem tissue to the injection site contraindicated the enrollment of the patient into the clinical trial; in addition, lack of informed consent was asserted with the plaintiff claiming that the toxic reaction should have been an anticipated result and, therefore, discussed with the patient.  The Federal rules concerning clinical trial oversight were involved in addition to New York State statutes.  Expert witnesses for both sides included the specialties of pharmacology, clinical trials, neuro-surgery and neuro-oncology.

April 2018: Employment Defense Verdict in Discrimination and Retaliation Case

MCB  obtained a defense verdict in an employment discrimination and retaliation case in the United States District Court for the Eastern District of New York.   

The Plaintiff, a former employee of our client hospital, filed a lawsuit alleging race and disability discrimination and retaliation claims. Plaintiff also alleged that the hospital interfered with her rights under the Family and Medical Leave Act (“FMLA”) by delaying the processing of her FMLA request and terminating her for taking FMLA leave. The Hospital employed Plaintiff for nearly 14 years. Throughout her employment, Plaintiff suffered from various serious health conditions for which the Hospital previously granted her FMLA and disability leave. 

Plaintiff again requested FMLA leave 2014.  The hospital granted Plaintiff’s request, but only after more than a month’s delay caused by various reasons, including Plaintiff’s submission of a deficient application.  Thereafter, while on FMLA leave, the Plaintiff’s supervisors wrote her up three times for disciplinary reasons and performance deficiencies.  One of the disciplinary write-ups was for lateness and absences that she claimed should have been covered under the FMLA.

The trial of this matter raised several challenges.  The most difficult fact was that the hospital disciplined the Plaintiff while she was on FMLA leave.  After presentation of the facts related to this discipline, the jury agreed that the hospital’s discipline of the Plaintiff was not related to her protected status or her receipt of FMLA leave.  The other difficulty was that Plaintiff’s discrimination and retaliation claims were raised under the New York City Human Rights law, which places a lower evidentiary burden on plaintiff employees.  Specifically, under the federal law, an employee must prove discrimination by demonstrating that he/she would not have suffered an adverse employment consequence “but for” their protected status.  However, under the New York City law, to prove discrimination employees need show only that they were treated “less well” than other employees.  Similarly, the legal standard in New York for employees to prove FMLA violations is lower than in other states.  Thus, in other jurisdictions employees must prove that they would not have been fired “but for” the employee's receipt of FMLA leave, but in New York the plaintiff employee need only show that her receipt of FMLA leave was “a factor” in the decision to fire.

There are several reasons for our success in overcoming the above challenges.  Among those factors, the client hospital was generous with its time and resources in the preparation of the defendant’s witnesses and, in fact, the hospital’s V.P. for Human Resources actively aided in the defense and sat at counsel’s table throughout the trial.  MCB also succeeded in several pre-trial motions to exclude evidence harmful to the defense, including prejudicial documents and the testimony from several witnesses proposed by plaintiff.  In addition, the firm leveraged sophisticated jury selection analysis and technology both before and during the trial.  Thus, particularly effective was cross examinations where we were able to impeach plaintiff on the fly using clips from her prior videotaped deposition testimony.  Likewise, MCB’s use of visual aids and real-time court reporting (where all trial testimony was instantaneously sent electronically “word for word” to defendant’s counsel as the trial progressed) permitted effective impeachment of plaintiff and other of plaintiff’s witnesses based on their fresh trial testimony made during their direct examinations by plaintiff’s counsel.

The trial lasted five days with the ten person jury rendering its verdict in less than two hours.

March 2018: Defense Verdict Concerning Surgical Liability

Senior Trial Partner Bruce G. Habian, with extensive discovery having been conducted by partner Kevin McManus, secured a unanimous defense verdict concerning surgical liability, at Supreme Court, New York County, before Judge Carmen St. George.  The 70 year old plaintiff, since deceased, underwent complicated surgery for a repair of an incisional hernia that followed colon cancer resection.  The surgery was per the sophisticated component separation technique.  Plaintiff claimed that the recurrence of the hernia with tissue disruption, 4 days post-operatively, indicated improper surgical technique (as the usual timeframe for early recurrence is statistically 1 - 2 years post-op).  The patient’s abdomen was left open with a draining wound for approximately 8 months.  Plaintiff also claimed that the patient’s death was directly related to the post-op sequela.  The defense focused on multiple longstanding co-morbidities (diabetes, congestive heart failure, atrial fibrillation, renal failure and COPD), as responsible causation for the poor tissue makeup and the wound dehiscence and suture tearing.

November 2017 – MCB Employment & Labor Practice Group Succeeds on Dismissal of Discrimination Claim before NYC Commission on Human Rights

MCB’s Employment & Labor defendant-client, a physician practice group, was accused by a former employee of race and marital status discrimination. The employee raised her discrimination claim with the NYC Commission on Human Rights (the "Commission"). The practice group has over 250 employees and staffs over 20 medical practices, with a commitment to fostering and providing equal employment opportunity to all employees. After an intensive investigation, in which the Commission sought extensive document discovery and interviewed multiple employees, the Commission dismissed the former employee’s complaint finding the evidence did not support a claim of discrimination.

October 2017: Defense Verdict

Senior Trial Partner Anthony M. Sola, assisted by Partner Nancy J. Block and Associate Emma B. Glazer, obtained a defense verdict after a 3 week trial in Supreme Court, Queens County before Justice Kevin J. Kerrigan. The case involved a wrongful death claim for a then 43 year old married, working mother of 3 teenage children. The patient, who had a history of having had a prior pulmonary embolism (PE) for which she was on life-long anticoagulation therapy with Coumadin, was morbidly obese and presented to our clients, a major NYC Hospital and a Bariatric Surgeon, for a sleeve gastrectomy (removal of a portion of her stomach) to help her lose weight. Since a patient cannot be anticoagulated during surgery, in situations such as this the protocol is to have the patient weaned off the long-acting Coumadin starting a week before surgery, and in place of that employing a short-acting anticoagulation drug (Lovenox). For the day of the operation, the short acting Lovenox is also stopped, and then about a day later the Lovenox is restarted together with the Coumadin for about a week while the Coumadin gets back to therapeutic levels. Unfortunately, the patient developed a PE about a week post-surgery and had documented about 35 minutes of conscious pain and suffering before she succumbed. The plaintiff’s claims centered on the adequacy of the discharge instructions and post-discharge prescriptions of anticoagulants. The jury returned a unanimous verdict in favor of both defendants.

September 2017: Defense Verdict

Senior Trial Partner, Bruce G. Habian, assisted by partner Charles S. Schechter, secured a unanimous defense verdict as to both surgical liability and informed consent in Supreme Court, Westchester County. The 24 year old male plaintiff, who had been diagnosed with the rare condition of Hereditary Spastic Paraparesis (HSP), eventually developed bilateral fixed cavus deformities (extremely high arches) of both feet that compromised his gait. He was a toe-walker and could not achieve plantar grade ambulation, per his treating neurologist’s assessments. These deformities, together with the anticipated progression of his neurologic condition, would render him immobile in the future. The defendant orthopedist – with a specialty practice concerning neuromuscular diseases – performed extensive osteotomies on both feet. The cavus was corrected, but significant post-op pain because of complete non-union of the foot bones was the result. Removed hardware in one foot did not alleviate the pain and the remaining hardware in the other foot eventually fractured. Plaintiff’s liability position was that the significant operation should never have been undertaken given the underlying neuro condition. The plaintiff never underwent recommended secondary fusion procedures in an attempt to mitigate the pain.

September 2017 – Court Holds the World Has Not Turned Upside Down – Employer Can Terminate Worker for Misconduct

The MCB Employment & Labor practice group represented the Defendant employer in the United States District Court, Eastern District of New York. In this case, the employer fired the employee after an audit revealed that he used his employer’s tax-exempt status for personal purchases at discounted rates. Plaintiff accused his employer of violating his rights to procedural and substantive due process under the Fourteenth Amendment. Plaintiff also raised a First Amendment retaliation claim. The Court granted summary judgment dismissing all of the plaintiff’s federal claims with prejudice. The Court declined to exercise supplemental jurisdiction over plaintiff’s state law claims and dismissed those claims without prejudice.

July 2017: Defense Verdict

Michael A. Sonkin received a defense verdict in Supreme Court, Bronx County before Justice Soto. This case arises out of a right eye cataract extraction with an intraocular lens (IOL) implant performed by the co-defendant ophthalmologist, at the Surgicare Ambulatory Center on March 9, 2011. The plaintiff was a 79 year old African American female. During the procedure, the plaintiff squeezed the speculum in her eye very hard causing her IOL and anterior vitreous to herniate through the pupil and into the anterior chamber. The lens and vitreous were removed from the anterior chamber and an anterior lens was placed. The patient was brought to the recovery room in stable condition and discharged home that day with instructions to follow-up in the clinic in the morning. It is claimed that intraoperative complications was caused by the insured defendants failure to administer sufficient anesthesia during the subject procedure. The jury returned a defense verdict.

June 2017: Defense Verdict

Senior Trial Partner, William P. Brady, assisted by Senior Associate Samantha E. Shaw and Associate Michelle A. Frankel obtained a defense verdict in Supreme Court, Bronx County before Judge Alison Tuitt. The case involved a then 23 year old female who underwent a Cesarean section after a prolonged labor with several non-reassuring fetal monitoring strips. Following the Cesarean section, the plaintiff suffered a postpartum hemorrhage secondary to uterine atony. Efforts to get the uterus to contract and cease the bleeding were unsuccessful. The plaintiff ultimately became hypotensive despite the use of vasopressors and a hysterectomy was performed. Plaintiff argued at trial that additional efforts and techniques should have been used to contract the uterus and stop the bleeding before performing a hysterectomy on the 23 year old plaintiff. MCB successfully argued that not only would the efforts suggested by plaintiff at trial not have caused the uterus to contract but the plaintiff rapidly decompensated and the hysterectomy performed was lifesaving.

June 2017: Defense Verdict

Senior Trial Partner Peter T. Crean, assisted by Partner Kevin P. McManus, received a defense verdict in Supreme Court, Queens County before Justice Pam Jackman Brown. The case involved a 60-year-old married mother of five adult children. The primary allegation is a failure to diagnose lung cancer in the setting of spinal complaints which became Stage IV spinal metastasis. Plaintiff had been hospitalized for spinal complaints and left on her own without further investigation. She subsequently returned to our defendants. The focus of the case related to her reporting to our client, her primary care physician, that a mass had been found on her lung during the hospitalization which was then not adequately further investigated before metastasis. Plaintiff had a prolonged and sympathetic demise which included pancreatic cancer said to have been metastasis. At trial, we were successful in asserting a liability defense that our physician had not departed from the standard of care. We also asserted a proximate cause defense that the cancer had already spread to the spine before her complaints and that the subsequent pancreatic cancer was in fact an independent primary cancer from which she died. The jury returned a defense verdict.

April 2017: Defense Verdict OB/GYN Surgical Oncology Case

Senior Trial Partner, Bruce G. Habian, obtained a defense verdict in Supreme Court, New York County. In this case, the 39 year old female plaintiff had an extensive workup for pre-cancerous cervical pathology before becoming a patient of our client an OB/GYN surgical oncologist.  The workup included Pap smears, colposcopy diagnostic procedures, cervical biopsies, electrical excisional procedures (LEEP), and endocervical studies - all productive of recurrent high-grade cervical dysplasia. The defendant continued this workup with the same studies, which continued to demonstrate recurrent cervical lesions.  The plaintiff decided on a hysterectomy to obviate the need for further diagnostic workup.  She claimed at trial that the defendant “pushed her” into this procedure.  The defendant maintained that the patient requested the hysterectomy.  The hysterectomy was complicated by urologic injury.  The case concerned a pure credibility issue; the doctor’s records supported his position.  The defense jury verdict was unanimous. 

April 2017: Defense Verdict in Laparoscopic Removal Case

Senior Trial Partner, Bruce G. Habian, obtained a defense verdict in Supreme Court, New York County. After a laparoscopic removal of a presumed inflamed appendix - per CT scan and clinical exam - pathology reported an extremely rare appendix cancer.  The specimen contained liquid cellular mucin that eventually causes bowel and organ strangulation.  Plaintiff, a 38 year old nurse, claimed that the operating general surgeon caused the mucin to spill into the peritoneal cavity during laparoscopic removal; plaintiff also claimed that the surgeon failed to refer the patient to a surgical oncologist for future assessments.  The defense maintained that the appendix was removed with a contained bag device (EndoCatch), and that the post-op care advised (3 month CT scan and potential surveillance surgery) was the result of the surgeon consulting with his department colleagues.  The plaintiff also claimed the post-op CT was misread; she underwent extensive cytoreduction surgery wherein many organs were removed and surgically stripped of surface tumors, together with HIPEC, heated chemotherapy.  This controversial surgery left her with a frozen abdomen, and mass adhesions requiring multiple operations as well as kidney stents.  She proceeded to have over 30 required hospital treatments per year for her condition.

March 2017: Summary Judgment in Dental Malpractice Action

Senior Partner Nancy Block and Senior Associate Michael Bastone successfully moved for summary judgment in a case alleging osteomyelitis of the mandible stemming from an infection following root canal therapy. Plaintiff argued that the treating dentist had failed to properly appreciate signs of an ongoing infection prior to performing root canal therapy. MCB was able to establish that the plaintiff had failed to adduce any evidence that he had made prior complaints consistent with infection before undergoing treatment during deposition and discovery, and the Court agreed with MCB’s arguments that plaintiff’s attempt to supplement the record with a self-serving affidavit of the plaintiff was impermissible and without evidentiary weight. The Court found that the defendant dentist had not departed from the standard of care in treating the plaintiff, and the matter was dismissed with prejudice.

January 2017: Plaintiff ’s Motion Successfully Opposed in Medical Malpractice Matter

Associate Michael B. Manning and Partner Francesca L. Mountain, assisted by Senior Partner Sean F.X. Dugan, successfully opposed Plaintiff ’s motion to serve late Notice of Claim in a child’s medical malpractice claim venued in Westchester County. Plaintiff ’s counsel alleged that the defendant-hospital was negligent in treating the infant-plaintiff. The Plaintiff claimed that pharmaceutical recommendations for the adjustment of the dose of Losartan (Cozaar) for the infant-plaintiff, treatment of the baby’s microalbumin, and misdiagnosis of nephropathy, all caused the infant-plaintiff to suffer from drug-induced injuries and complications including hemolytic anemia, drug toxicity, chemical induced arthritis and physical disabilities. Plaintiff ’s counsel supported his application by noting the defendant hospital had the child’s chart, which recorded the acts of claimed malpractice. Further, the chart supported the claim of timely notice of the malpractice. Finally, the Hospital suffered no prejudice by reason of the late application.

MCB opposed Plaintiff ’s motion on several grounds. In our Opposition, we established that the defendant-hospital did not have actual knowledge of the facts constituting the Plaintiff ’s claim within a  reasonable time. Our reasoning in support of this contention was that the Plaintiff did not begin receiving care and treatment at the defendant-hospital did not have actual knowledge of the facts constituting the plaintiff ’s claim within a reasonable time, as plaintiff did not begin receiving care and treatment at the defendant-hospital until five years after the infant-plaintiff was first prescribed Cozaar by co-defendants. Additionally, we demonstrated that plaintiff did not have a reasonable excuse for failing to serve a timely notice of claim by highlighting the plaintiff-mother’s 50-h hearing testimony. The Court determined that the Plaintiff failed to satisfy her burden in establishing that the late Notice of Claim should be deemed timely, and therefore, denied the Plaintiff ’s motion.

January 2017: Summary Judgment Motion Granted in Ambulance Case

Rosaleen T. McCrory assisted by Senior Associate Melissa G. Andrieux successfully moved for summary judgment in a case involving the transportation of a female plaintiff and her two unborn children. The plaintiff alleged that ambulance personnel delayed in the transfer and that proper care was not  administered during the transfer. It was claimed that this resulted in the death of one fetus and neurological damage to the other. MCB successfully argued that there was no delay in the transfer and that appropriate care was rendered by the EMTs. The motion was granted and the Complaint was dismissed.

December 2016: Medical Malpractice Defense Verdict

Senior Trial Partner, John J. Barbera, assisted by Partner Ruth A. Ragan and Associate H. Sally Ryu, obtained a defense verdict in Supreme Court, New York County before Judge Alice Schlesinger. Plaintiff, complaining of acute onset of stroke symptoms, was brought by ambulance to a certified stroke center, evaluated in the emergency department and admitted for a stroke work up. The defense argued that our two client neurologists could not have prevented the plaintiff ’s sudden progression two days after presentation to the hospital and that the stroke was not amenable to “clot buster” treatment with Tissue Plasminogen Activase (tPA). Using CT and MRI imaging of the brain with expert testimony from a stroke specialist, the defense demonstrated that the patient’s unique constellation of stroke symptoms created several strict contraindications against the use of tPA, including that her initial symptoms existed days prior to arrival at the hospital and therefore exceeded the safe and effective time frame in which tPA could have been administered.

September 2016: Summary Judgment in Failure to Diagnose and Treat Myocardial Infarction Case

Senior trial partner, Peter T.  Crean, assisted by partner Daniel L. Freidlin obtained a dismissal in Nassau County Supreme Court before Justice George Peck. Plaintiffs claimed that the  defendant hospital staff failed to diagnose and treat and acute myocardial infarction leading to permanent heart damage. The hospital records reflect that the plaintiff eloped from the emergency department after an EKG was performed but before he could be evaluated by an attending physician. He was diagnosed with a myocardial infarction at another institution approximately two hours later. Although there was an issue as to whether our client’s emergency department  attending physician correctly interpreted the EKG, we  presented the evidence in a way that made it near impossible for the plaintiff ’s lawyer to rebut our argument that it the patient’s departure from our emergency department that led to his injuries. We argued that the plaintiff ’s elopement from the emergency department within ninety minutes of arrival prevented our client from timely transferring him to the cardiac catheterization laboratory for intervention. The plaintiff ’s attorney was unable to rebut our summary judgment motion and the case was dismissed.

MCB Obtains Dismissal of Whistleblower Retaliation Lawsuit in New York Federal Court

The United States District Court for the Southern District of New York recently granted MCB’s motion for summary judgment dismissing a whistleblower lawsuit in favor of an MCB hospital client.  The former hospital department head claimed he was terminated because of his complaints about alleged patient care problems.  The Court rejected the department head’s whistleblower claim and instead found that the Hospital terminated the Plaintiff after it made a business decision to eliminate his entire department. 

The case required the Court’s interpretation of Section 741 of the New York Labor Law, which specifically creates a legal cause of action for healthcare employee whistleblowers.  To date, there have been few reported decisions under this statute and, therefore, MCB’s victory in this case is likely to serve as a useful precedent for other healthcare employers.

MCB employment and labor partners Gregory B. Reilly and Adam G. Guttell represented the hospital in obtaining this positive result.

Defense Verdict in Premises Liability Case:

Senior Trial Partner, Michael A. Sonkin, assisted by Associates Sandra L. Mekita and Thomas E. Lamb, obtained a defense verdict in Kings County Supreme Court before Judge Normal Spack.  The case involved the defense of a residential apartment building in which the plaintiff, a 51 year old obese man visiting the building for the first time, claims to have tripped and fallen due to a raised elevation that ran across the width of an entranceway to the lobby.  The injuries alleged to have been causally related to the accident included wrist, back, and knee injuries that ultimately resulted in significant wrist surgery, two arthroscopic knee surgeries, and bilateral total knee replacement surgeries with resulting disability and difficulty with ambulation.  The defense contended that the entranceway elevation change was highlighted with yellow tape across its length, that the entranceway was well-lit, and that a sign mounted on the wall facing those entering the building cautioned them to watch their step.  The bifurcated trial resulted in a jury finding in favor of the defense after five days of testimony that included testimony from engineering experts for both the plaintiff and the defense.   

August 2016: Defense Verdict in Safe Premises Case

Senior Trial Partner, John J. Barbera, assisted by Associates Aisling McAllister and Olivia DeBellis, obtained a defense verdict in Supreme Court, Bronx County before Judge Julia Rodriguez. The case involved the defense of a commercial building in Manhattan on a claim of failure to inspect and maintain safe premises. The plaintiff alleged that he was confined to a wheelchair and permanently disabled after being struck in the head by a metal paper towel and trash receptacle that was built into a wall. The plaintiff underwent cervical fusion of his fifth cervical vertebrae as a result of the injury and claimed onset of chronic regional pain syndrome. Plaintiff sought over six million dollars in damages. The defense called an expert in materials science and bio-mechanical engineering to challenge the plaintiff’s theory of how the accident occurred. The defense also disputed the relationship of his claimed injuries to the accident. The jury returned a verdict for the defense based largely on the expert testimony of the bio-mechanical engineer who demonstrated that the unit could not have fallen down based on the reasonably safe and sound manner in which it was securely fastened to the wall.

May 2016: Defense Verdict in Dental Malpractice Case

Senior Trial Partner Jeffrey A. Shor obtained a defense verdict in a dental malpractice case. During the course of performing an oral evaluation of a four year old, our client made an incidental finding of either a fractured tooth or an extra tooth.  Regardless of the diagnosis the dentist decided it was necessary to remove the fragment of tooth and proceeded to do so.  The plaintiff claimed that during the course of the removal of the fragment the dentist caused a nerve exposure which led to a severe infection, a four day hospitalization and the extraction of the tooth.  The defense argued that approximately one week after the dentist removed the fragment of tooth the infant was hit in the same area of her face as the removal of the fragment with a soccer ball.  The defense further argued that it was the trauma from the soccer ball which caused the severe infection.  The defense further argued that had the defendant caused a nerve root exposure the infant would have demonstrated sever and obvious clinical symptoms of a nerve root exposure including severe pain and discomfort which never occurred.  The jury deliberated for less than thirty minutes and returned a verdict in favor of the defendant, pediatric dentist.

May 2016: Defense Verdict in Case Involving Uterine Atony

Senior Trial Partner Michael A. Sonkin, assisted by associates Samantha Shaw and Katherine Baxter, obtained a defense verdict in the Supreme Court Kings County following a three week trial.  The case was tried before Justice Gloria Dabiri and involved a 37 year old woman who delivered twins via Cesarean section and then was found to have uterine atony and heavy bleeding that was unresponsive to medical treatment.  A life-saving hysterectomy was performed after the patient appeared to develop a coagulopathy.  During the hysterectomy, an inadvertent transection of the left ureter occurred that was not known to the physicians.  A cystoscopy was performed in the operating room and showed dye in the bladder but without visualizing the ureteral jets.  This demonstrated that at least one, and potentially both ureters, was functioning, although it did not rule out the possibility of injury to one of the ureters.  Following this inconclusive study, the decision was made to transfer the patient to recovery without seeking a urology consultation due to her extreme blood loss (9 liters) and the risk for further complications by prolonging the surgery.  Post-operative elevation in her creatinine was recognized promptly and a transected ureter four centimeters proximal to the bladder was identified.  A nephrostomy tube with drainage bag was placed, and the patient ultimately underwent a repair two months later.   Plaintiff argued that a urologist should have been called to the operating room once the difficulty of the surgery was recognized and certainly once the cystoscopy was inconclusive, and that a urologist would have identified the injury and repaired it in the operating room to avoid the need for the nephrostomy tube and drainage bag.  The defense successfully argued that the post-partum hemorrhage was life threatening, that the primary focus was appropriately on controlling her bleeding, and that further exploration and cutting of tissue necessary to identify and repair the ureter would have posed unacceptable risks to the patient.  Following the lengthy trial, the jury deliberated for approximately twenty minutes before delivering a unanimous defense verdict.

May 2016: Defense Verdict in Failure to Diagnose Pulmonary Aterial Hypertension

Senior Trial Partner Nancy J. Block, assisted by Partner Jessica A. Bresnan and Associate Samantha E. Shaw, obtained a defense verdict in Kings County.  The matter involved a 30 year old woman who claimed that our clients, an endocrinologist and a neurologist, failed to diagnose pulmonary arterial hypertension.  She alleged that had she been diagnosed at an earlier stage, she would not have needed 24-hour continuous IV Flolan – a medication which caused her to become debilitated and unable to pursue her career as a lawyer.  The defense argued that plaintiff had been previously diagnosed by another neurologist with a partial complex seizure disorder that was consistent with her symptoms; and she underwent two prior negative cardiac evaluations.  Our clients were entitled to rely on this diagnosis and the negative work ups.  There was also no indication to refer her to a cardiologist for additional studies.  The defense explained the medicine associated with pulmonary arterial hypertension and why it was not diagnosable when plaintiff treated with our clients.  Further, the defense demonstrated that plaintiff would never have been successfully treated with oral calcium channel blockers and the continuous IV Flolan is the reason that she has survived with a devastating disease.  The jury returned a verdict in favor of all defendants.

April 2016: Defense Verdict in Queens - 26 Year Old Mother of Twins Who Sustained Eclamptic Stroke After Delivery

Senior Trial Partner Anthony M. Sola, assisted by Partner Thomas Kroczynski and Associate Andrew Meier, obtained a defense verdict in the Supreme Court, Queens County on April 18, 2016, following a three week trial. The case was tried before a jury and Justice Timothy Dufficy. The matter involved a 26 year old woman who had just delivered twins at 34 weeks gestation and shortly after birth developed severe preeclampsia, sustained a grand mal seizure (eclampsia) and had an intracranial hemorrhage. The central claim was that, when the patient developed hypertension post-delivery and complained of a severe headache with a pain scale of 10 out of 10, the severe preeclampsia was not immediately recognized,  and magnesium sulfate to prevent the eclampsia was not started for a full hour.  Our client, the private attending physician, had already left the teaching hospital and was managing the care by phone with the residents during the critical hour. We were fortunate to get into evidence the ACOG Practice Bulletin relevant to the time period and demonstrate that at that time the standard was not to employ magnesium sulfate unless one had a diagnosis of sever preeclampsia, which included proteinuria which was not present, and blood pressures more severe than what she had at the critical time.  We successfully demonstrated that the patient had an unusual, atypical presentation of preeclampsia and our care was within the standards as they existed at the time.

Defense Verdict SDNY - Lumbar Spine Fusion case

Senior Trial Partner, Sean F.X. Dugan, assisted by Partner Gregory Radomisli, obtained a defense verdict in the United States District Court for the Southern District of New York, tried before Judge Lorna Schofield.  The case involved a claim that bony overgrowth resulting from a two level lumbar fusion resulted in impingement of the spinal nerves.  Plaintiff was a 37 year old married, working father of three young children who underwent fusion of the lumbar spine in fall of 2009 performed by our client orthopedic surgeon.  Bone Morphogenic Protein (BMP) was utilized intraoperatively to stimulate bony healing.  Plaintiff alleged that he was not informed preoperatively that the Food and Drug Administration (FDA) had NOT approved BMP to be used in this fashion; that the compound was used improperly; and in any event, it should not have been used.  At mediation, he demanded $6 million to settle his claim at which point the decision was made to try the case.  At a pre-trial deposition, the plaintiff’s expert orthopedist (who ‘specialized’ in spinal surgery) conceded that many surgeons use BMP in the very same way as the defendant used it on plaintiff and that it was not contraindicated.  However, the expert maintained that the standard of care required that physicians include the FDA status of products to be used intraoperatively with the patient during the preoperative informed consent discussion.  At trial, the defendant surgeon testified that the standard of care required that the patient be informed of the potential risks of surgery, i.e. bony overgrowth, benefits and alternatives to surgery.  However, the FDA status of the material used intraoperatively does not have to be specifically discussed.  Our expert neurosurgeon agreed.  We argued that the FDA does not regulate a physician’s practice of medicine.  Although the plaintiff alleged that the resulting bony overgrowth that resulted impinged on his nerves resulting in disabling right leg pain, a subsequent treating neurosurgeon called by plaintiff conceded on cross-examination that this bony overgrowth was on the left side of the spine (away from the right leg) and that the patient’s postoperative complaints were of the same intensity as before the surgery.  In rendering a defense verdict following a lengthy trial, the jury agreed that the patient was properly advised of the known risk of bony overgrowth, that the surgery was performed properly, and that the patient’s right leg pain was unrelated to the bony overgrowth.    

October 2015: Defense Verdict

Senior Trial Partner, Peter T. Crean, assisted by Partner Gregory J. Radomisli and Associate Emma B. Glazer, obtained a defense verdict in Supreme Court, Westchester County before Judge Mary Smith. The case involved a claim of improper prescription of Ativan and Haldol intramuscularly to treat a psychotic patient in a psychiatric ED who refused oral medications. The plaintiff claimed that these medications  were contraindicated in light of the decedent’s medical history and pulmonary insufficiency. Almost contemporaneously with receiving the medications, the decedent coded and died. The defense was able to elicit testimony from the medical examiner who performed the autopsy that the relevant medications never made it into the decedent’s bloodstream, and therefore, could not have been the cause of death. It was asserted that the cause of death was excited delirium, sudden death. The jury returned a verdict for the defense based largely on the alternative causation proved by the defense.

October 2015: Directed Verdict: Case against defendant hospital dismissed

Partner, Laurie A. Annunziato assisted by Senior Associate Francesca L. Mountain and Associate Christina Casarella obtained a directed verdict in Supreme Court, Westchester County before Justice Lester Adler. The case involved a claim of a failure to diagnose and timely treat an infected knee prothesis resulting in sepsis and death.  The decedent underwent a total knee replacement in September of the year at issue, performed by the codefendant orthopedic surgeon at our client Hospital.  The wound healed but a few weeks after the procedure, the patient sustained a patella tendon rupture during physical therapy. The decedent was readmitted to defendant Hospital and the surgical site for the knee replacement was reopened to repair the tendon.  The patient was discharged four days later and admitted to a subacute nursing facility.  The plaintiff claimed that the wound never healed and there were signs of infection that were not appreciated within a week of discharge.  Several weeks later the patient was readmitted to defendant Hospital by the codefendant orthopedic surgeon for further evaluation of the wound. The patient was started on antibiotics and the orthopedic surgeon performed an Irrigation and Debridement on the third day of the admission.  Cultures were taken and the surgeon did not believe that the patient was suffering from a significant infection.  The plan was to continue to monitor the patient in the hospital and perform further procedures as warranted.  Several days later however the patient requested transfer to another hospital where the prothesis was removed. The patient developed sepsis, acute respiratory failure and ultimately died in January of the following year.  During the plaintiff’s case, the defense established that the decedent was directly admitted to the client Hospital by her private orthopedic surgeon for each of the three admissions. The defense also established that the codefendant surgeon continued to manage the patient’s care throughout the admission and that the nonparty physicians who assisted in the management of the patient’s care were either the patient’s private doctor or specifically requested to consult by the orthopedic surgeon.  The plaintiff was not able to elicit any expert testimony that a nurse or employee deviated from the standards of care in the treatment of the patient. Consequently at the close of the plaintiff’s case,  we moved for a directed verdict arguing that the client Hospital could not be, by law, held vicariously liable for the acts of the private treating surgeon or nonparty physicians and that the plaintiff failed to offer any evidence to suggest direct liability.  The Court granted the application and dismissed the case against the Hospital.

Defense Verdict: Delay in Diagnosis of Breast Cancer

October 2015 --  Senior Trial Partner, Anthony Sola, assisted by Partner Laurie A. Annunziato and Associate Maxwell Sandgrund, obtained a defense verdict in Supreme Court, New York County before Justice Alice Schlesinger. This case involved a claim of a delay in diagnosis of breast cancer in a post-menopausal woman who presented to our clients in May of the year in issue with the chief complaint of bleeding from her nipple. An ultrasound was performed of the retroareolar area by our radiology defendant and was interpreted as negative. Our defendant breast surgeon then did a duct excision which pathology read as benign. The patient was discharged and told to return in 6 months. The patient came back in September with pain and swelling, and then in November - 6 months after the initial visit – and was found to have a 8 cm invasive ductal cancer with metastasis to her liver, lung and spine. Plaintiff alleged the wrong area was examined by both the ultrasound and duct excision and the cancer had to have been significant in May. The defense proved - based on the tumor profile and employing doubling times - that this was a very fast growing tumor that was not detectable in May and, further, that it metastasized to the liver very soon after it first developed.  As a result, she became a stage 4 before the doctors could diagnose it. The jury found no departures on any of the 5 questions submitted. 

MCB Case Result from Appellate Department: Dismissal of Claims

Senior Trial Partner Jeffrey A. Shor assisted by Appellate Associate Iryna S. Krauchanka, obtained a dismissal of claims initiated against a mental health provider as a result of an unanticipated patient suicide. MCB sought appellate review of a Supreme Court, Bronx County order denying summary judgment to their client.  Despite plaintiffs’ expert’s assertions that the treating psychologist should have asked decedent whether he had acces to weapons, the Appellate Division held that the provider exercised his “professional medical judgment in his examination and evaluation of decedent, including his determination whether to inquire about decedent’s access to firearms.”  In reaching its decision, the Court cited its prior opinion, Park v. Kovachevich, where MCB obtained a reversal and dismissal of claims against the hospital invoking the same legal principle. 

Defense Verdict in Case of Alleged Failure to Diagnose Rare Dermatologic Condition

Partner Daniel L. Freidlin obtained a defense verdict in Supreme Court, Nassau County.  The suit, brought by the daughter of the deceased 81 year old patient, alleged a failure to diagnose pyoderma gangrenosum following femoral-femoral bypass surgery.  Following the surgical procedure, the patient developed a rash over the incision site that became ulcerated and progressively larger.  After an extensive two-week workup including consultations in infectious diseases, plastic surgery and wound care, hematology, dermatology and allergy, an allergic reaction was ruled out and pyoderma gangrenosum was considered.  To confirm the diagnosis, a biopsy was recommended but the patient instead elected to transfer her care to another hospital where the suspected condition was diagnosed and treated with steroids.  The patient died three weeks later due in part to complications of steroid treatment.  The plaintiff alleged that this 1:100,000 condition should have been considered earlier and that the delay contributed to the patient’s death.  The defense demonstrated that pyoderma was a diagnosis of exclusion that was timely considered after all other possible conditions were systematically ruled out, and that the patient’s death was due to complications of the treatment.  After a near month long trial, the jury returned a defense verdict finding that there was no delay in diagnosis and treatment.

Defense Verdict in Spine Surgery Case

On June 30, 2015, senior partner Bruce G. Habian obtained a defense verdict in a cervical spine surgery case, Westchester Supreme Court.  The plaintiff, an athletic middle-aged woman, presented with minimal pre-operative symptoms (left arm tingling and neck pain).  However, CT and MRI workup revealed multi-level pathology at C3 through C6; the differential diagnoses included lymphoma/herniated discs ventral to the spinal cord.  Once a PET scan ruled out a malignancy, two anterior discectomies were performed.  Post-op pain and symptoms were extensive following the first operation and were not relieved by the second operation and were permanent.  These included right-sided body burning, hand weakness, inability to ambulate, bowel and bladder dysfunction, with all disabilities confirmed in rehab records.  Plaintiff claimed intra-operative trauma during disc removal that had directly injured the cord; this was supported by treating neurosurgical record entries.  The defense capitalized on a pre-operative diagnosis of cord edema and myelomalacia, per the pre-op films which demonstrated a significantly compressed cord as well as interruption of the CSF at several levels.  No dural tears nor hematomas occurred during surgery.  Re-expansion/re-perfusion edema was established as the cause of the post-op deficits.  While re-perfusion is well-recognized concerning brain pathology, the testimony extended the causation issues to the spinal cord per se.

Defense Verdict in a Brain Damaged Baby Case

Senior Trial Partner Anthony M. Sola obtained a defense verdict in NYS Supreme Court, Queens County, in a severely brain damaged baby case in which  plaintiff's attorney,  James Duffy of Duffy & Duffy, alleged that our delivering obstetrician delayed in delivering the baby for non-reassuring fetal heart rated tracings. The mother, who was at term,  had fallen at work about one week before admission and the claim was she sustained an undiagnosed placental abruption.  The baby was delivered by C-section a little over an hour after admission to the hospital, but was severely anemic at birth requiring immediate intubation. At trial the now 6 year old infant was not mobile, and presented with cerebral palsy in all four limbs, profound retardation, an uncontrollable seizure disorder, and cortical blindness.   The defense demonstrated that most likely the cause of the severe anemia at birth was a very rare fetal - maternal transfusion, and the delivering obstetrician acted reasonably under the circumstances as a result of which a crash C-section was not indicated.

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.

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. 

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.)

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 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 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.

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.

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 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.

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 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.

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: 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

Partners Joseph L. DeMarzo and Stewart G. Milch recently won an important victory in the Appellate Division, First Department in a long term care facility wrongful death case. MCB represented a facility where plaintiff’s mother had been a resident. When the resident was initially admitted from a local hospital, she had a C. Difficile infection and was suffering from multiple co-morbidities, including a history of chronic heart failure, breast cancer, depression, hypertension and severe asthma. Plaintiff claimed that MCB’s client did not properly treat his mother’s C. Difficile infection or provide her with appropriate nutrition or hydration.

At the trial level, MCB supported its summary judgment motion with a physician’s affirmation which unequivocally attested to the appropriateness of the treatment provided. After receiving plaintiff’s opposing expert’s affirmation, MCB pointed out that plaintiff’s expert’s opinions were based on evidence either not contained in the patient’s medical records or assumed facts entirely at odds with the medical records.

In affirming the trial court’s order awarding our client summary judgment, the Appellate Division’s decision demonstrates that even where a plaintiff submits an expert’s affirmation in opposition to a summary judgment motion, the motion should still be granted if it is shown that plaintiff’s expert’s opinions lack an appropriate foundation, or are speculative or conclusory. In this case, the Appellate Division specifically found that our expert’s opinions were virtually uncontested by plaintiff’s expert, including plaintiff’s expert’s failure to offer an opinion regarding the cause of the resident’s death at another facility. The same was true regarding the expert’s opinions as to the lack of informed consent claim: he speculated that the resident may have been a candidate for alternative “experimental” treatments without demonstrating why such treatment should have been offered.

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.