G&S Obtains Important Decision Limiting Liability of Specialists Called In for Limited Consultations Prior to Surgery – 2012

Venue: New York Supreme Court, Queens County

Plaintiff decedent was a 54-year-old retiree who underwent a pre-operative cardiac evaluation prior to an exploratory laparoscopy for possible ovarian cancer. The surgery was complicated by excessive bleeding allegedly related to her advanced and undiagnosed liver disease. She was in ICU for about a month before she died. Her family brought suit against among others, our client, a cardiologist, for his alleged failure to detect her elevated liver function tests and bleeding abnormalities. It was alleged that had he reviewed the proper tests he would have denied her surgical clearance and referred her to a liver specialist.

Prior to trial we moved for summary judgment on the grounds that our client, a cardiologist called in for a limited consult, did not have a legal duty commensurate with that of the surgeon, to check for liver disease, etc., in the course of a pre-op cardiac clearance evaluation. We argued that plaintiff could not establish liability against our client on the theory that he had a duty to rule out other causes of her condition. We argued that to do so, would have broadened the duty of a consulting physician to that of the surgeon or attending physician in charge of the patient's care.

Plaintiff's counsel submitted an extensive affidavit from an expert in opposition and argued that from a public policy perspective, the court should not limit our client's duty of care to their patients. Plaintiff argued that even if our client's evaluation was limited to a preoperative cardiac evaluation, his duty of care nevertheless required him to have reviewed the decedent's prior liver function test results because one cause of the decedent's condition was liver failure. We vigorously argued that it would be an erroneous expansion of a specialist's duty of care to hold that they are responsible for ruling out causes of illness outside of their particular specialty.

Alternatively, the plaintiff argued that our client did in face perform a general and not cardiac preoperative medical evaluation based on the nature of his billing codes. We argued that our client's billing records were consistent with cardiac evaluation.

In the face of tremendous opposition by the plaintiff, Judge Peter J. O'Donoghue granted our client summary judgment, in a decision that will undoubtedly be relied on by the medical malpractice defense bar in future litigation. Although plaintiff's counsel filed an appeal, it was ultimately withdrawn after plaintiff settled with the codefendants.