Recent Results

G & S Obtains Trial Verdict in favor of Hospital and Electrophysiologist

G & S OBTAINS TRIAL VERDICT IN FAVOR OF HOSPITAL AND ELECTROPHYSIOLOGIST – 2016

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.

G&S Obtains Summary Judgement For Five Distinct Defendants In A Single Motion

The plaintiff in this action worked for a coffee distribution company when with knowledge of a broken light, exited from work through the loading dock and tripped over the bottom of a concrete ramp that had been poured to elevate trucks to the surface of the dock, fracturing his patella which required surgery. He contended he fell due to a nonworking light and an improperly designed ramp which failed have handrails and yellow visibility paint.

Although he received Workers’ Compensation benefits, he sued his employer and his employer’s parent company as well as a defunct affiliated company, as well as his employer’s landlord and a company affiliated with the landlord that shared the building. G&S took over the defense of all five defendants. Only the contractor that built the ramp was not being defended by G&S.

G&S moved for summary judgment on behalf of plaintiff’s employer based on the exclusivity provisions of the WCL as well as on behalf of its parent based on affidavits and testimony establishing that the parent controlled the front and back office operations of the employer, its wholly owned subsidiary. G&S moved on behalf of the parents affiliated company based on evidence that it was no longer in existence on the date of the plaintiff’s accident and never had any relationship to the property. G&S moved on behalf of the landlord on the grounds that it was merely an out of possession landlord with no contractual duty of repair other than with respect to structural issues and no common law duty other than with respect to structural building code violations. A main point of contention between our expert architect and the plaintiff expert engineer was whether the ramp was structural and whether it violated the building code. We also moved on behalf of the defendant affiliated with the landlord on the grounds that it had no ownership interest or duty of care with respect to the premises. Finally, we also argued that the plaintiff’s claims should be dismissed since the cause of his accident was his admitted failure to look down at the ramp after descending the stairs and as a manager in charge of the safety, including the subject light and ramp, he knew of the conditions in the loading dock, but nevertheless proceeded anyway, assuming the risk of his injury.

In an extraordinary 20 page decision Judge Jeffrey S. Brown, of the Nassau County Supreme Court dismissed all five insured defendants with a clean sweep of every argument, leaving our co-defendant left in the case by itself. The court even agreed that plaintiff could not establish the accident was proximately caused by the alleged defective ramp, lighting and absence of handrails because of his testimony that he knew the light was out and knew the ramp was there, was not looking down and had an alternative exit out of the building.

The decision threaded the needle in obtaining a dismissal for the parent corporation on the basis of the WC bar without making the statement or concluding that the parent and subsidiary were alter egos, thereby preserving the corporate distinction between the entities. We were also successful with establishing with expert testimony that the concrete poured ramp was not structural and thus not something that the out of possession landlord had notice of, and extracted the entities not affiliated with the premises with appropriate affidavits.

G&S Obtains Defense Verdict For Dental Group Regarding Placing Dental Implants in The Sinus, Resulting in Sinus Pain, Swelling and Infection

G&S Obtains Defense Verdict For Dental Group Regarding Placing Dental Implants in The Sinus, Resulting in Sinus Pain, Swelling and Infection

Type of Case: Dental Malpractice. Alleged negligent placement of dental implants into her sinuses resulting in sinus pain, swelling and infection.
Venue: New York Supreme Court, New York County

Background Facts: In this dental malpractice action, plaintiff claimed lack of informed consent, negligent placement of dental implants and failure to take a preoperative CT scan and postoperative x-rays. Plaintiff claimed the implants caused her pain, swelling, infection and anguish. She alleged the dentist failed to explain the procedure’s risks and benefits and did not discuss the alternatives and thus failed to obtain her informed consent. She also asserted she could not read the Consent form without her glasses.

Special Problems: CT scans confirmed two implants had passed the bony floor of the sinus. There was a “he said/she said” battle on informed consent.

Our Strategy: We argued that a preoperative CT scan was unnecessary since a panorex x-ray accurately demonstrated positioning of the bone level for placement of the dental implants. We further contended that the implants were properly placed since stabilization was achieved and they had not pierced the Schneiderian membrane. Moreover, we asserted that implants protruding into the sinus was an accepted complication of the procedure. We negated plaintiff’s claim of the need for glasses to read the consent form by subpoenaing her eye doctor’s records showing 20/20 vision. Finally, we argued that postoperative x-rays were taken during the next visit, and it would have made no difference if they were taken any earlier, since plaintiff declined removal.

G&S Obtains Dismissal of Claims Against Court Appointed Psychiatrist – 2016

Plaintiff sued our assured psychiatrist and other defendants asserting civils rights violations in connection with her role in a Family Court neglect proceeding which culminated in his loss of parental custody. Our client was appointed by the court to perform a forensic psychiatric evaluation of the plaintiff. Plaintiff asserted claims against our client for violating his civil rights pursuant to 42 USC 1983 of the 14th Amendment as well as claims for defamation.

Plaintiff alleged that the psychiatric report submitted by our client submitted to the Family Court was wrongful and defamatory and violated his civil rights since no psychiatrist could perform an psychiatric examination and make a valid diagnosis in the short period of time our assured spent with him. We moved to dismiss on the grounds that our client was entitled to judicial immunity for her work performed in furtherance of the Family Court appointment as a psychiatric evaluator of the plaintiff. We also argued that the report in no way deprived the plaintiff of any rights guaranteed by the 14th Amendment including the right to life, liberty or property. She simply submitted a thorough report with recommendations as was directed by the court and the Department of Social Services. We also argued that the pleading requirements of defamation were not met.

While the motions were pending, the plaintiff kept communicating directly with the defendants bypassing their attorneys. Upon application, the court held a contempt hearing and issued an order directing plaintiff to cease all improper communications with the defendants. When the plaintiff failed to cease these communications, upon application, the Court held a further contempt hearing whereupon it used its discretionary power to dismiss the plaintiff’s case with prejudice.

G&S Obtains Summary Judgement Premised On The Assumption Of Risk Doctrine For Long Island Health Club

The plaintiff in this action alleged that she fell backwards and fractured both of her wrists while performing plyometric box jumping exercises at a Life Clubs, Inc., a health club facility in Long Island. This exercise involves repeatedly jumping onto and off of a raised platform. The plaintiff claimed that the rubber tiled flooring in the area where she was doing this exercise was uneven and caused the plyometric box to wobble when she landed on it. She alleged that this wobbling caused her to lose her balance and fall backwards.

In moving for summary judgment, we submitted substantial evidence that the plaintiff assumed the risk of sustaining her injuries. This included the plaintiff’s deposition testimony that she exercised at this gym several times per week, and had done plyometric jumping in the exact area where she fell on several prior occasions, both with and without a personal trainer. She also testified that she felt the box wobble on prior occasions and immediately before her fall. She did not use a spotter or any protective mats. The Supreme Court, Nassau County held that this evidence established that the plaintiff assumed the risk of sustaining her injuries.

We also demonstrated that the rubber-tiled floor where she fell was reasonably safe for the performance of plyometric exercises by submitting an expert affidavit of a licensed professional engineer. Although the plaintiff proffered an affidavit of a sports and recreation expert, we convinced the court that the expert’s opinions were speculative and conclusory.

Dawn Adelson’s Cross-Examination of Plaintiff’s Expert Leads to Rare Discontinuance in Middle of Trial, in a Claim Against an Eye Surgeon

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.

Verdict in Favor of Hospital and Physician In Claim For Death of Patient After Surgical Placement of a 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.

G&S Wins Appeal Dismissing Complaint of Health Club Member who Fractured Hip in Fall

G&S WINS APPEAL DISMISSING COMPLAINT OF HEALTH CLUB MEMBER WHO FRACTURED HIP IN FALL – SECOND DEPARTMENT, APPELLATE DIVISION

Our client health club was sued when a member fractured her hip falling in a whirlpool room allegedly due to an excessively wet floor Plaintiff underwent two surgeries as a result. We moved for summary judgment on the theory the water condition was incidental to the whirlpool. We also argued that plaintiff’s claim the water was excessive should have been disregarded by the court since she did not observe the condition before she fell. We similarly argued that the affidavits of plaintiff’s witnesses should also have been disregarded since they did not witness the condition contemporaneously with the accident. After the court denied our motion, G&S appealed to the Second Department which reversed, agreeing that the water which caused plaintiff’s accident was incidental to the use of the whirlpool room and therefore not actionable. The Court also agreed with the defendant that the affidavits of the plaintiffs’ witnesses should have been disregarded.

Ed Dondes Obtains Jury Verdict in Favor of Orthopedic Surgeon For Failure to Treat Infection

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.

 

Lawrence Wasserman Obtains Jury Verdict in Favor of Client Landlord in Trip and Fall Acciden

G&S OBTAINS JURY VERDICT AGAINST A 92 YEAR OLD WOMAN IN FAVOR OF CLIENT LANDLORD IN TRIP AND FALL ACCIDENT IN SUPREME COURT, QUEENS COUNTY

Plaintiff, a then 87 year old woman, fell on July 2, 2010 in front of the assured’s building allegedly due to a raised handle on cellar doors which our client had utilized earlier that day resulting in facial injuries, including a fractured orbit, and a fractured right elbow. She argued that our client owned the building and had opened the cellar door for a tenant on the day of the accident despite the door not having been used in the 5 years prior to the accident. Plaintiff testified that after her accident, our client’s daughter pushed the door handle down in an attempt to hide evidence of fault. On cross examination however, we established that she had testified that the handle was still upright when she was removed by ambulance. We also established that she had never seen the handle in an upright position prior to her accident despite her frequent passing of the location. Further, we established that upon leaving the hair salon at 11:30 a.m. to have lunch with her friends, the handle was not in the up position, a mere ½ hour prior to her accident at 12:00 noon.

Although plaintiff called a professional engineer, we successfully moved to preclude him from testifying generally about our client’s failure to comply with the New York City Administrative Code. The Court only allowed him to testify regarding his inspection of the door handle. He claimed the handle was unsafe in the upright position and because it was rusted it could get stuck upright. On cross-examination, we established he did not measure the diameter of the holes versus the diameter of the handle undermining his claim that gravity would not cause the handle to return to being flush with the door.

Our client testified that the door was opened prior to the accident there was no problem with the functioning of the handle. He further testified that when he closed the door that morning he was sure the handle was flush with the cellar door surface. He inspected the sidewalk twice a day for debris and never received complaints about the door handle and denied awareness it got stuck in an upright position although he did acknowledge it can be manipulated to remain in the upright position.

Our professional engineer testified that unlike plaintiff’s expert, he measured the diameter of the holes and the handle which allowed the handle to become flush with the cellar door surface merely with gravity. He testified he tested it and it was working properly as designed at the time of his inspection and that the rusting was normal considering the cellar door was exposed to the elements.

Finally, we called the tenant who testified that he had closed the cellar door in front of our client who supervised the event. While the tenant acknowledged on cross that our client told him he needed to be careful with the handle because it could get stuck, he maintained that he left the handle flush. He also testified that when he responded to the scene of the accident the handle was down.

In closing, plaintiff’s counsel argued it could not be a coincidence that the cellar door was opened the same day as the accident and that it was our client’s responsibility to make sure the handle was down. We in turn argued that the tenant testified the handle was flush before and after the accident and that plaintiff failed to call her friends who were with her that day to testify on her behalf. We also highlighted that although plaintiff claimed our client’s daughter pushed the handle down, she also testified the handle was up when she was removed by the ambulance.

The jury returned a verdict the jury found our client not negligent and assigned 100 percent of the fault to the plaintiff herself.