Medical Malpractice

Gordon & Silber has specialized in the defense of complex medical malpractice cases since the firm’s inception in 1974.

  • Retained in over 5,000 medical malpractice cases, with approximately 500 current matters.
  • Counsel to virtually all of the largest insurers of physicians in New York State, including , Physicians’ Reciprocal Insurers, Medical Liability Mutual Insurance Company, Federation of Jewish Philanthropies (FOJP) and Medical Malpractice Insurance Pool.
  • G&S represents various hospitals including Mount Sinai Medical Center, Lenox Hill Hospital, New York Eye and Ear Infirmary, Montefiore Medical Center, Peninsula Hospital, Phelps Memorial Medical Center and Manhattan Eye, Ear and Throat Hospital.
  • Committed to developing close professional relationships with the medical practitioners we defend.
  • Attorneys with an in-depth understanding of the medicine.
  • An array of in house medical resources, including full time nurse paralegals, state-of-the-art medical library and access to experts in every medical field.
  • Partners with particular expertise in the defense of psychiatrists and ophthalmologists.
  • Unparalleled experience in the field of dental malpractice.
  • Sub-speciality in professional licensing and misconduct hearings.
  • Charter Participant in 2010 New York State Medical Liability Reform and Patient Safety Pilot Program.
G & S Obtains Trial Verdict in favor of Hospital and Electrophysiologist
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Dawn Adelson’s Cross-Examination of Plaintiff’s Expert Leads to Rare Discontinuance in Middle of Trial, in a Claim Against an Eye Surgeon
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Verdict in Favor of Hospital and Physician In Claim For Death of Patient After Surgical Placement of a Vena Cava Filter
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Ed Dondes Obtains Jury Verdict in Favor of Orthopedic Surgeon For Failure to Treat Infection
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G&S Obtains Defense Verdict in Tough Eye Case Involving Multiple Surgeries
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G&S Obtains Dismissal of Claim Based on Defective Service of Process
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G&S Obtains Dismissal of Med-Mal Wrongful Death Action for Lack of Jurisdiction
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MEDICAL MALPRACTICE – AFFIRMANCE OF VERDICT – COMMENTS DURING OPENINGS AND SUMMATION PROPER
APPELLATE DIVISION, SECOND DEPARTMENT, --- N.Y.S.2D ----, 2010 WL 5094695

G&S obtained a defense verdict in this medical malpractice action arising from the admission of the 74 year old decedent, with a two day history of shortness of breath and a lengthy past medical history of hypertension and asthma. During the admission she was noted to have some respiratory distress. Our client, an infectious disease physician, provided an infectious disease consult and concluded the decedent had a lower lobe pneumonia. After her condition worsened the decedent checked out against medical advice. After she later expired the cause of death was aspergillosis resulting in multi organ failure. On appeal from the defense verdict, plaintiff claimed that comments made during defense openings and summation were improper. The Appellate Division disagreed finding they were based on evidence presented at trial.

MEDICAL MALPRACTICE – AFFIRMANCE OF SUMMARY JUDGMENT – CLAIM OF DETACHED RETINA FROM LASIK SURGERY
APPELLATE DIVISION, SECOND DEPARTMENT, 72 A.D.3D 1068, 900 N.Y.S.2D 120

Plaintiff claims that after LASIK eye surgery he recovered almost perfect vision in both eyes. After a later car accident in which he sustained contusions to his chin and head plaintiff was diagnosed with a detached retina in his left eye and underwent surgery to reattach the retina but suffered a severe loss of vision in the left eye. The Appellate Division held that defendants established entitlement to judgment as a matter of law by providing, an expert affirmation of an expert ophthalmologist that there was no evidence in the literature of a causal relationship between LASIK surgery and retinal detachment caused by myopia or lattice degeneration, and that the plaintiff’s retinal detachment was not the result of the LASIK surgery, but rather, of the head trauma he suffered in a car accident one year after the surgery.

G&S OBTAINS DEFENSE VERDICT IN TOUGH EYE CASE INVOLVING MULTIPLE SURGERIES

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

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

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

G & S OBTAINS TRIAL VERDICT IN FAVOR OF HOSPITAL AND ELECTROPHYSIOLOGIST

We represented a hospital and an electrophysiologist who was seen by the plaintiff for a consultation on his atrial fibrillation. Our client recommended a procedure known as cardiac ablation after the plaintiff expressed a reluctance to go on lifetime medication for the condition. The plaintiff tolerated the procedure without any complications, however, a 1 month later he experienced a rare but known complication – atrial esophageal fistula and stroke. Mortality rate for this complication is extremely high, however, our client timely responded and had plaintiff admitted to the hospital where he underwent surgery, essentially saving his life. Plaintiff was admitted to the hospital for a month followed by in-patient rehabilitation. He claimed permanent injuries including impotence, fatigue, neurological deficits. His wife claimed loss of consortium.

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

DAWN ADELSON’S CROSS-EXAMINATION OF PLAINTIFF’S EXPERT LEADS TO RARE DISCONTINUANCE IN CLAIM THAT EYE SURGEON CAUSED RETINAL DETACHMENT
DAWN ADELSON'S CROSS-EXAMINATION OF PLAINTIFF'S EXPERT LEADS TO A RARE DISCONTINUANCE IN THE MIDDLE OF THE TRIAL, IN A CLAIM THAT OUR CLIENT, AN EYE SURGEON, CAUSED PLAINTIFF'S RETINAL DETACHMENT AND RESULTANT LOSS OF VISION. SUPREME COURT, WESTCHESTER COUNTY

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

At trial, Ms. Adelson discredited the plaintiff’s ophthalmology expert on cross-examination by demonstrating he was not only less credentialed and experienced than our own expert, but was less credentialed and experienced than our client. Ms. Adelson battered plaintiff’s expert and used him to demonstrate that the science and medicine supported that plaintiff did not have retained lens material in the eye, that the laser capsulotomy was indicated and it was a genetic defect that caused the retinal detachment, not our client’s post-operative care. Shortly after the close of Ms. Adelson’s cross-examination the plaintiff agreed to voluntarily discontinue the case against our client, thereby ending the trial, as our client was the sole defendant.

ARTHUR COHEN OBTAINS JURY VERDICT IN FAVOR OF HOSPITAL AND PHYSICIAN FOR DEATH OF PATIENT AFTER SURGICAL PLACEMENT OF VENA CAVA FILTER
ARTHUR COHEN OBTAINS JURY VERDICT IN FAVOR OF HOSPITAL AND HOSPITAL PHYSICIAN IN MEDICAL MALPRACTICE CLAIM FOR DEATH OF PATIENT AFTER SURGICAL PLACEMENT OF A VENA CAVA FILTER. SUPREME COURT, WESTCHESTER COUNTY

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

Plaintiff argued at trial the filter was too small and the co-defendant failed to adequately flush the IVF with heparin saline, causing it to clot and the filter not to properly deploy. Our codefendant claimed that the filter was defective. Plaintiff also argued our client missed early signs of perforation from the filter and that various tests and consults should have been called and that plaintiff should have been transferred to a facility with cardiothoracic surgery capabilities.

We established through expert testimony the excellent job the hospital did to treat plaintiff after he suffered a narcotic reaction. We also established with expert testimony the absence of signs of cardiac issues prior to a non-party family physician taking over the plaintiff’s care the day before he expired. Our expert testified that based on the autopsy report the bleed occurred suddenly and not as plaintiff claimed days prior to his death. Our physician client testified plaintiff had been stable during his treatment and his lack of any role in the placement of the filter. We also established plaintiff’s poor and deteriorating medical condition prior to admission to the hospital. Following summations the jury returned a unanimous defendants’ verdict to our clients.

JURY VERDICT IN FAVOR OF ORTHOPEDIC SURGEON FOR FAILURE TO TREAT INFECTION LEADING TO DEATH
ED DONDES OBTAINS JURY VERDICT IN FAVOR OF ORTHOPEDIC SURGEON FOR FAILURE TO TREAT INFECTION LEADING TO DEATH OF PATIENT IN SUPREME COURT, WESTCHESTER COUNTY

Plaintiff, than 80 years old, came in for an evaluation of knee pain. Our client performed a knee replacement. Her recovery was complicated by a patella tendon rupture necessitating another surgery from which she recovered. She thereafter suffered a breakdown of the surgical wound. Our client admitted her to the hospital and performed an irrigation and debridement. He also brought in an infectious disease doctor and started her on IV antibiotics. After two weeks her family transferred her to a different facility where the prosthesis was removed. Two weeks later developed sepsis and multi-organ failure from which she pulled through, but later died after surgery to place a trach when the hospital failed to monitor her condition.

We argued that our client acted appropriately in treating what appeared to be a superficial infection using irrigation, debridement and IV antibiotics. We argued that the removal of the prosthesis was contraindicated since it was never definitively determined to have been infected. We argued that she was stable under our client’s care and that her problems started at the subsequent facility. The jury deliberated for 10-15 minutes before returning a defense verdict.
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G&S OBTAINS DEFENSE VERDICT FOR INTERNIST/RHEMATOLOGIST

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

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

VERDICT IN FAVOR OF A UROLOGIST ALLEGED TO HAVE FAILED TO ADMIT PLAINTIFF TO HOSPITAL AFTER POST CYSTOSCOPY INFECTION LEADING TO SEPTIC SHOCK
G&S OBTAINS JURY VERDICT IN FAVOR OF A UROLOGIST ALLEGED TO HAVE FAILED TO HAVE ADMITTED PLAINTIFF TO HOSPITAL AFTER POST CYSTOSCOPY INFECTION LEADING TO SEPTIC SHOCK AND ADMISSION TO ICU FOR 3 WEEKS /  VENUE: NEW YORK SUPREME COURT, NEW YORK COUNTY

G&S OBTAINS JURY VERDICT IN FAVOR OF A UROLOGIST ALLEGED TO HAVE FAILED TO HAVE ADMITTED PLAINTIFF TO HOSPITAL AFTER POST CYSTOSCOPY INFECTION LEADING TO SEPTIC SHOCK AND ADMISSION TO ICU FOR 3 WEEKS /
VENUE: NEW YORK SUPREME COURT, NEW YORK COUNTY.

Plaintiff was treated by our urologist client for urinary dysfunction. After evaluation our client recommended a cystoscopy and urodynamic study. The risks of the procedures included pain, bleeding and urinary tract infection. Prior to the study antibiotics were administered. He tolerated the procedure without any complications. Plaintiff was advised to look out for signs of infection including fevers, chills or rigors. Later that evening plaintiff contacted our client complaining of severe pain on urination and minor bleeding. Our client advised him to take over-the-counter pain medication and contact him the following day of his symptoms persisted or sooner if new symptoms developed. The following afternoon plaintiff experienced an onset of fevers and chills. An ambulance was called and plaintiff transported to the hospital where he was diagnosed with septic shock and admitted to the ICU for 3 weeks. He was eventually discharged for rehabilitation for several weeks before being sent home to recuperate. Plaintiff argued that the assured should have referred plaintiff to the ER when he received the call from plaintiff. Had he done so his infection would have been treated and sepsis prevented.

We argued that urinary tract infection was a known risk of the procedure. All appropriate measures were taken in an effort to prevent UTI including a prophylactic antibiotic. It turns out that the bacteria which caused the infection was resistant to the antibiotic used. We defended the client’s judgment that the pain complained of was unrelated to infection since it was too soon after the procedure. We argued that his recommendation to take pain medication was also appropriate and that plaintiff should have called him back the following day. We also argued that even if plaintiff had gone to the ER that night his outcome would have been the same because he would likely have been discharged home on an antibiotic that would not have worked.

G&S WINS VERDICT FOR EYE SURGEON WHO ALLEGEDLY CAUSED PLAINTIFF’S LOSS OF VISION DURING CATARACT SURGERY
VENUE: NEW YORK SUPREME COURT, NEW YORK COUNTY.

After a cataract surgery performed by our client, the plaintiff lost vision to her right eye. She alleged that our client failed to properly deal with a complication known as Floppy Iris Syndrome which caused unpredictable movements of the iris, and failed to apply appropriate anesthesia which led to excessive patient movement during the procedure which lead to damage to the plaintiff’s corneal endothelium, that caused plaintiff’s later loss of vision. Plaintiff claimed our client should have aborted the surgery when the iris became floppy and also due to the plaintiff’s excessive movement. Plaintiff also alleged that iris hooks should have been used to stabilize the iris and that excessive manipulation of the eye during the procedure lead to corneal decompensation and eventual loss of vision.

We argued that the client’s nick of the iris was due to the floppy iris and not the lack of anesthesia. We also argued that after a certain point it was not possible to abort the surgery, that the use of viscoelastic iris hooks was appropriate and that loss of vision only occurred after a bout of herpes keratitis, which offered a compelling alternative explanation for the bad result.

Within two hours of deliberation, the jury came back with a defense verdict, finding no malpractice on the part of our client.