Recent Results

G0361697

Yanique Burke Obtained Summary Judgment on Behalf of Doctors and Hospital in Wrongful Death Action

Dismissal of an orthopedic surgeon, a critical care physician, a palliative care physician and the hospital, all clients of the firm.

Ms. Burke represented an orthopedic surgeon, a critical care physician, a palliative care physician, and a hospital in a wrongful death action. The plaintiff claimed, among other things, that the elderly emergency admit decedent was improperly cleared for hip surgery by the codefendant cardiologist, and that the surgery was improperly performed by the orthopedist. Further, plaintiff alleged that the defendants were negligent in their postoperative management of the decedent, causing the decedent to suffer, among other things, hemorrhagic shock, intubation, and death 7 days following the hip surgery. Of considerable import, the decedent’s postoperative care was managed and directed by a non-party private anesthesiologist in the PACU. In a summary judgment motion, supported by the separate expert affirmations of an orthopedic surgeon, a critical care specialist and a cardiologist, Ms. Burke moved on behalf of the firm’s clients, contending that there were no departures from accepted standards of medical care by any of them. (Subsequent to the filing of the motion and prior to oral arguments, the plaintiff voluntarily discontinued the palliative care physician).

The defendants’ experts acknowledged that the decedent was at high risk for surgery given the patient’s history of pulmonary hypertension and chronic valve disease; however, the experts contended that the surgery was indicated, as an untreated fracture in this elderly patient would place the patient at increased risk for complications from prolonged suffering and would heighten the patient’s risk of mortality. It was therefore the experts’ opinion that the defendants appropriately sought a pre-operative cardiac evaluation from the board certified codefendant cardiologist, followed the cardiologist’s intraoperative recommendations and relied on the cardiologist’s assessment that the patient was optimized for surgery. Defendants’ experts opined that the surgery was indicated and performed in conformity with accepted standards of medical care.

With respect to the postoperative care, the defendants’ experts opined that, the defendants appropriately deferred to and collaborated with the non-party anesthesiologist and specialists for management of the patient’s hypotension, anemia, and hemorrhagic shock. Defendants’ critical care expert also affirmed that, despite appropriate care, the patient’s comorbidities coupled with the effects of the shock, compromised the patient’s organs and impaired the optimal care the patient received, resulting in multiple organ failure and, ultimately death.

The plaintiff opposed with affirmations from an anesthesiologist and a cardiologist. Although offering opinions as to the care rendered by the orthopedist and the critical care team, neither expert established their familiarity with the standard of care as to either specialty. Defendants therefore contended that their opinions were therefore conclusory and could not be used to create an issue of fact as to the care rendered by the orthopedist, the critical care physician or the other intensivists. Plaintiff’s experts also opined that the decedent was not properly optimized for surgery and that the decedent’s post-hemorrhagic shock and hypertension was mismanaged by the defendants. Specifically, plaintiff’s expert opined that a Swan-Ganz catheter should have been used intraoperatively to monitor the decedent hemodynamically and that the defendants inadequately transfused and resuscitated the decedent postoperatively. In response, defendants argued that they were entitled to rely on the assessment and recommendations of the codefendant cardiologist as to intraoperative management of the decedent’s cardiac condition, and were equally entitled to rely on the non-party anesthesiologist who was managing the decedent postoperative complications in the PACU and directing the patient’s care care.

The court rejected the plaintiff’s arguments and awarded summary judgment to all of the firm’s clients, including the individually named specialists and hospital. The court found that the affirmations submitted by the plaintiff failed to set forth the experts’ qualifications in orthopedic surgery and critical care medicine, and therefore, did not rebut the orthopedist and critical care physicians’ prima facie showing of appropriate care. Additionally, the court found that defendants had no liability for the care rendered in the PACU, including the adequacy of the resuscitative efforts, as such care was being managed and directed by a non-party anesthesiologist who was not an employee of the defendants and for whom the defendants can have no vicarious liability.

Edward Dondes

Ed Dondes Obtains Trial Verdict in Negligence Action for Homeowners

Jury Only Deliberated for 20 Minutes

Mr. Dondes represented a married couple who owned a home in Franklin Square, LI. Plaintiff alleged she tripped and fell on a rock on the sidewalk in front of their home and injured her shoulder for which she underwent two surgeries. Plaintiff claimed the rock came from a rock garden on their property adjacent to their driveway. Plaintiff’s daughter, who lived on the same block, testified she saw rocks on the sidewalk regularly which she believed got there because our clients would routinely park their cars in the rock garden causing rocks to be spew out when the cars pulled in and out.

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Susan Papacostas Obtains Summary Judgment on Behalf of Anesthesiologists and Hospital in Claim of Negligent Intubation

Ms. Papacoastas represented a board certified anesthesiologist, a cardiac anesthesiology fellow and the hospital in a claim of negligence in intubating the plaintiff that allegedly resulted in serious tongue lacerations.  She moved for Summary Judgment on behalf of all defendants supported by an expert affirmation of a renowned board-certified otolaryngologist arguing that the medical records and deposition testimony were devoid of evidence that the alleged injury occurred during intubation, or indeed anytime during the operative and immediate post-operative period. Our expert noted that such an injury was extremely unlikely to occur during intubation, andif it had, there would have been significant bleeding, which was not documented anywhere in the medical records. (more…)

Wayne E. Cousin

Wayne Cousin Obtains Unamimous Verdict for Ophthalmologist Client

Defeats plaintiff's claim that oversized intraocular lens caused his loss of vision

Wayne Cousin earned a unanimous defense verdict in this New York County-venued matter where plaintiff claimed the assured improperly inserted an oversized intraocular lens implant into plaintiff’s left eye during cataract surgery resulting in severe pain and loss of vision.  Mr. Cousin defended the assured by establishing that the assured complied at all times with good and accepted practice in properly measuring the patient’s anterior chamber diameter during the surgery, and in selecting the appropriate lens implant, and in properly inserting the lens into the plaintiff’s left eye.  He further established there was no direct evidence to support plaintiff’s claim of oversized lens.

 

Charles Weitman Successfully Vacates Client’s Default

Lighting Strikes Twice in the Same Location

G&S recently represented a client who was sued by a tenant who broke her wrist in a slip and fall due to snow/ice in the driveway despite having been sued five years earlier by the same tenant and same attorney for the same injury, due to the same condition (snow and ice) in the same location!  Our client believing that lighting could not possibly strike twice in the same location thought the papers related to the old action despite our having settled it years before.  Our insured failed to report the claim and five months later the tenant obtained a default judgment against him.

Upon retention, Mr. Weitman with assistance from Associate Mark Walsh, had a steep burden to overcome to establish our insured reasonably ignored the summons and complaint.  Typically, misreading or mishandling a complaint does not constitute a reasonable excuse for default.  Rather, the fault must lie with the court, the plaintiff or a third party for causing the default.

Notwithstanding, after an evidentiary hearing where both the plaintiff and the defendant testified, Mr. Weitman convinced the court that the insured had a reasonable excuse for the default based on his mistaken belief the new summons and complaint related to the old lawsuit.

Mr. Weitman and Mr. Walsh also established a meritorious defense to the accident itself based on certified weather records which established that the second accident occurred during a snowstorm and before the law required the landlord to commence snow removal operations.   Based on Mr. Weitman’s motion, the Court vacated the default.

Now it is the plaintiff that has the steep burden of proof–to overcome the storm in progress doctrine and if she can, prove to a jury that lighting does indeed strike twice in the same location.

 

 

Jon Lichtenstein

Jon Lichtenstein Obtains Pre-Discovery Dismissal of Infant’s Claim in the Bronx

Shortly after answering for our client’s Tae Kwon Duo studio, we moved to dismiss the infant’s compalint based on the language in the agreement signed by the infant’s mother that released our client from any claims of negligence that might occur in the future while the infant was on the premises.

Mr. Lichtenstein argued that as a condition of membership, the plaintiff executed a Membership Agreement which contained a well-disclosed and broad based release and waiver of liability of liability including any bodily injury that occurred during the course of instruction or while on the premises even if such injury was caused by the negligence of the insured or its purported negligence.

He argued that the release and waiver of liability was fully enforceable pursuant to New York’s General Obligations Law §5-326 given that plaintiff paid a fee for instruction in the martial art of Tae Kwon Do.  Mr. Lichtenstein argued that only such agreements that provide for recreation (as opposed to instruction) are prohibited from containing releases for the service provider’s negligence.

The Court issued a decision dismissing the case.

Edward Dondes

Ed Dondes Obtains Defense Verdict in Brain Damaged Baby Case for Neonatologist and Pediatricianin

Defense Trial Verdict in Brookyn, Supreme Court

Mr. Dondes represented a neonatologist and a pediatrician. The infant was born at a local hospital at nearly 35 weeks old. Our neonatologist was called to evaluate the infant for admission to the special care nursery. He evaluated the infant and opined that he appeared to be older than his estimated gestational age and did not require admission to the special care nursery. Rather he could go to the regular nursery. The neonatologist never saw the infant again. Instead he was followed by a pediatrician who was not our client who was selected by the delivering Ob/Gyn (this pediatrician settled prior to trial for $2.2 million). The infant remained in the nursery until he was discharged home 2 days later. The admission was unremarkable except for some slight jaundice. Bilirubin was not checked.  

Three days later the child’s mother claimed the infant was yellow and called our client a pediatrician (who she had never spoken with before). The mother alleged she told our client the infant was premature, yellow and not feeding well. The mother claimed our client advised her to stop breast feeding and go to bottle feeds and bring the infant in to see her the following afternoon. Our client claims the mother merely called to introduce herself and inform her she would be using her services as pediatrician. She denied being told by the mother that the infant was yellow or not feeding well.

Early the next morning the mother brought the baby to the hospital. His bilirubin was 37. The infant was transferred to another hospital where he underwent blood exchanges. He suffered kernicterus (brain damage) from elevated bilirubin. He was left with cognitive and physical deficits including an inability to walk, talk or eat. He will require around the clock supervision.

Plaintiff claimed our neonatologist failed to order a bilirubin level and further failed to admit the infant to the special care nursery where he would have received closer supervision. It was also claimed that he failed in his duties as Director of the neonatal unit to implement proper procedures regarding hyperbilirubinemia. She alleged that our client failed to immediately refer the child to the ER.    

Mr. Dondes argued that admission to the special care unit was not necessary given the infant’s weight (over 6 lbs.) and the results of the physical examination. Once admitted, responsibility for the infant rested with the pediatrician assigned by the Ob/Gyn. Mr. Dondes argued that the standard of care at the time did not require mandatory universal bilirubin testing.  He argued that the written policies were in place and were appropriate. With regard to the pediatrician’s alleged negligence, Mr. Dondes argued that our client pediatrician’s version of the phone call was more credible.

 After the close of evidence, the case was submitted to the jury which came back with a defense verdict for both doctors.  The co-defendant hospital settled prior to the resolution of the verdict sheet for $100,000.  

  

 

Edward Dondes

Ed Dondes Obtains Trial Verdict on behalf of Surgeon in Bronx County Medical Malpractice Action

Successful trial defense of surgeon alleged to have failed to timely diagnose and treat a post-laparoscopic cholecystectomy bile leak.

Plaintiff claimed that our client failed to order imaging a few days post procedure despite increased drainage and decreased appetite.  That he failed to note abnormal blood test results, abnormal imaging tests and failed to order repeat imaging following stent placement. Plaintiff’s expert testified this allowed the bile to spread causing permanent nerve damage to her internal organs and chronic pain.

Plaintiff’s surgical expert maintained that when our client saw the plaintiff 3 days post-op he failed to appreciate signs of the bile leak and should have ordered imaging and placed a stent.  Mr. Dondes got him to admit that bile leak is a known complication of the procedure which can often resolve without treatment. An admission was also obtained that plaintiff’s expert never had a patient suffer permanent nerve damage from a bile leak.  He also contradicted plaintiff’s prior expert that the migration of bile occurred only after our client’s consult.   He further admitted that the leak would only have been avoided with the placing of a stent, which was important since codefendant testified that even if a scan had detected a leak, he would not have placed a stent at that time. This allowed Mr. Dondes to argue that plaintiff could not establish proximate cause.

On Mr. Dondes’ direct exam our client explained that the drainage was not particularly unusual nor was the plaintiff’s tenderness and decreased appetite unusual given she just had abdominal surgery. Our client adamantly maintained he observed no bile at the time of his initial visit despite the observations of several other physicians on prior exams.

Mr. Dondes put on a surgical expert who opined the assured’s judgment that plaintiff was not suffering a bile leak was reasonable under the circumstances and otherwise acted appropriately and maintained that bile does not cause permanent nerve damage only transient symptoms.

Plaintiff’s treating pain management physician testified that plaintiff suffers from chronic abdominal nerve pain and was not successful controlling her pain with medications, injections and spinal stimulation. He testified she was incapable of working and her condition was permanent. However, on cross-examination he came across as a pill-pusher, with no regard for the plaintiff’s opioid dependence.

Plaintiff testified over the course of three days and was continually exposed as a liar including lying about her lost earnings when in fact she had been paid a full salary. While she claimed not to have a social life her social networking websites reflected otherwise. Post-verdict discussions with jurors revealed they believed her complaints of chronic pain in the absence of any apparent medical cause were related to her addiction to pain medication.

The jury returned a defense verdict on behalf of all defendants. In speaking with jurors post-verdict, they believed that the doctors acted appropriately in all respects and that plaintiff suffered no permanent injuries. They believed that an injustice was being done by her pain management physician and that plaintiff was opioid dependent.

 

 

Sanford Gold

Sandy Gold Obtains Trial Verdict on Behalf of Ophthalmologist

Plaintiff underwent surgical removal of a cataract that was impairing his vision when he suffered a complication of the surgery, prolapse of the iris, which is when the iris migrates through the incision that allowed the removal of the cataract.  When the iris could not be fully reset our client removed a portion of the iris by an iridectomy.  The patient brought suit claiming his vision in his left eye had been significantly impaired as a result.  At trial plaintiff’s expert testified that the prolapse could have been resolved without the performance of the iridectomy.

Mr. Gold argued to the jury through an expert ophthalmologist that the prolapse was a result of a retrobulbar hemorrhage and that the hemorrhage prevented a less-invasive method of correcting the prolapse.  Mr. Gold also argued that the hemorrhage was a result of the plaintiff’s combined use of aspirin and an anticoagulant, Plavix.  While our client acknowledged the plaintiff’s use of Plavix, he testified that plaintiff had not disclosed the simultaneous use of aspirin which would have led him to postpone the surgery had he known.

After the conclusion of the trial, the jury rendered a defense verdict.

arthur-cohen

Arthur Cohen Obtains Defense Verdict in Medical Malpractice Action for Hospital

Plaintiff brought a medical malpractice action against his back surgeon and the hospital where his back surgery was performed claiming he was not a proper candidate for the surgery (plaintiff was morbidly obese) as well as negligence in its performance from misplaced pedicle screws and the failure to recognize post-operative cauda equine syndrome, which left the plaintiff with erectile dysfunction and the inability to feel the passage of urine or feces.

Prior to trial we obtained dismissal of several claims against the hospital. The claims which remained against the hospital for trial was that our x-ray technologist allegedly dropped the patient during transfer from a gurney to an x-ray table nine days post op, which allegedly caused internal bleeding that contributed to the plaintiff’s cauda equine syndrome.

After plaintiff’s expert testified that plaintiff was not a proper surgical candidate, that the surgery was improperly done and that codefendant failed to work up symptoms consistent with cauda equine syndrome, the codefendant surgeon testified he had done the procedure properly and that plaintiff never developed cauda equine syndrome post-discharge, but rather plaintiff had symptoms consistent with his deteriorating underlying spinal disease. The surgeon also put on experts in surgery, neuro-monitoring and urology.

Our surgery expert described how our x-ray technologists performed a proper guided transfer in the x-ray room and testified that the plaintiff suffered no injury at their hands. Our two x-ray techs had no recollection of the patient, but ably explained how they typically do guided transfers and denied ever dropping a patient.

Plaintiff subpoenaed two nurses to read their two notes into the chart referring to the alleged drop, but neither had any recollection of the patient.

On cross-examination Arthur Cohen obtained an admission from the plaintiff that by “drop” he really meant that he felt his back come into contact with the x-ray table.

After closing arguments plaintiff asked the jury for $2.1. The jury unanimously found no deviations from the accepted standards of care for either defendant.