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.