Real Life Results: No Trial. No Pay. Case Closed.

(Summary judgments, final dismissals, leveraged discontinuances and appellate affirmances.)

Patient v. Hospital, Attending Prosthodontist and Prosthodontics Resident

Supreme Court, Bronx County

The plaintiff was a young physician who underwent a months-long course of full-mouth dental reconstruction at the hospital’s dental clinic to address badly damaged dentition secondary to gastroesophageal reflux disease (GERD) and bruxism (gnashing or grinding of teeth). The plaintiff alleged that the treating prosthodontic resident caused the need for him to subsequently undergo 28 separate root canals by “overpreparing” the teeth for the placement of crowns, that the resident was insufficiently supervised by the director of the residency, that defective equipment was used in the treatment, that the plaintiff was negligently caused to rely on temporary crowns for too long, and that his informed consent for the treatment was not properly obtained. He further alleged that he sustained a lingual nerve injury due to negligent placement of a nerve block injection. We represented all defendants. Following discovery, we moved for summary judgment of all claims, which was granted. In its decision, the court agreed with our argument that the claim for lack of informed consent had gone entirely undefended in the plaintiff’s opposition papers, that the plaintiff had not substantiated with any material evidence his claim of a lingual nerve injury, and that the plaintiff and his expert had failed to sufficiently rebut the opinion of our expert in dentistry and prosthodontics that the complications encountered in the plaintiff’s full-mouth dental reconstruction resulted from his long history of GERD and bruxism, the latter of which had continued throughout the period of the care in controversy, rather than from any departure in the standard of dental or prosthodontic care provided by the defendants to the plaintiff.

Patient v. Physician and Hospital

Supreme Court, Bronx County

In this case in which the plaintiff, a 31-year-old woman with two small children, sought an elective abortion at 21 weeks of pregnancy, the co-defendant ob/gyn performing the procedure at our client hospital, assisted by a hospital resident, realized that some tissue, almost certainly uterine, had been torn away by the bierer forceps. A hospital obstetrical and general surgical team was then called into the operating room to assist. When the team began exploring, it became evident that the uterus had sustained a tear, an ovary had been avulsed, and the rectal serosa had sustained an abrasion. It was determined that, to protect the life of the patient, a total abdominal hysterectomy, unilateral oophorectomy and surgical repair of the rectal serosa, were all indicated on an emergency basis. They were successfully performed. The plaintiff subsequently brought suit, claiming that the defendants had not properly obtained her informed consent to perform an abortion by the dilatation and evacuation method, that the defendants had recommended and performed the wrong method of abortion, that the procedure was precipitously commenced prior to achieving sufficient cervical dilatation, that the hospital had negligently credentialed and supervised an incompetent attending ob/gyn, and that the abortion was negligently performed resulting in unacceptable injuries including a hysterectomy, thus depriving her of the opportunity to become pregnant in the future. She also alleged the increased likelihood of suffering early-onset menopause due to the loss of an ovary. At the close of discovery, we moved for summary judgment, arguing: that the plaintiff had signed two separate consent forms for the abortion procedure on different dates, including the morning of the procedure, and that the conversations held with the plaintiff about the risks and alternatives were amply recorded, pre-operatively, by a hospital midwife and by the resident who assisted at the procedure; that the attending ob/gyn who performed the procedure was properly credentialed, having completed a fellowship in family planning and performed at least 1000 prior abortions of the same type; that the dilatation and evacuation procedure was the correct method of abortion, completely consistent with the prevailing standard of care in the U.S. at 21 weeks’ gestation; that the cervix was sufficiently dilated upon the commencement of the procedure, as well documented in the contemporaneous, electronic records; that there was no evidence of surgical malpractice, and; that the unfortunate complication that occurred and injuries sustained were the known, if fairly rare, risks of the procedure, and were among those about which the plaintiff was advised in the obtaining of her consent to undergo the procedure. The court granted the motion, the action was dismissed on its merits, and a Judgment was recorded in favor of the defendants.

Estate of Patient v. Home Care Company and Managed-Care Program

Supreme Court, Queens County

Plaintiff alleged that a home attendant employed by the co-defendant home care company left the 86-year-old decedent unattended for at least a minute in the shower, at home, thus allowing him to fall and fracture six ribs, requiring hospitalization, and causing him to develop pneumonia and ultimately die in the hospital six months later. Plaintiff further alleged that a nurse employed by our client, a managed-care program, negligently failed to diagnose the fractures, or any injury, when he arrived 45 minutes later to perform a bi-weekly, general medical assessment of the decedent, finding the patient in bed, asleep, arousable, making no complaints, and possessing normal blood pressure, temperature and other vital signs. It was established that the home care attendant did not advise the nurse of the fall. The decedent’s wife first learned of the fall from the home care attendant the next day, when her husband seemed weak, and called the managed-care program for assistance. The same nurse returned to the home, examined the patient to rule out an injury, diagnosed tenderness about the rib cage and concerning lung sounds, and summoned an ambulance which transported the decedent to the hospital. The co-defendant home care company settled with the plaintiff, and the plaintiff continued attempting to prosecute the action against our client, the managed-care program. Supported by the affidavit of a geriatric medicine expert, we moved for summary judgment, arguing that the standard of care for a nurse visiting a medical patient at home on a bi-weekly basis did not require the nurse to perform a complete physical exam at the time of each visit, and that none was indicated in the absence of any physical complaints or a report by the patient, family or home care attendant of an accident or injury. We further argued that, although the home care company had initially been selected by the managed-care program, the contract provided that each entity would be liable for its own acts or omissions, and the actual behavior and practice of the two entities in the individual case did not support the plaintiff’s argument that the managed-care program ostensibly oversaw and controlled the duties and performance of the home care attendant. The Court agreed that the standard of care did not require the nurse to have performed a complete physical examination on the day in question, and held that the plaintiff’s expert opinion to the contrary was conclusory and without explanation or support. In its decision, the Court also agreed that the home care company was not the actual or ostensible agent of the managed-care program. Summary judgment was granted to our client and the case was dismissed.

Estate of Patient v. Nursing Home and Physician

Supreme Court, Queens County

Plaintiff alleged that our client, a nursing home, and a co-defendant physician, negligently failed to diagnose and properly treat peripheral vascular disease and deep vein thrombosis in an 87-year-old, long-term nursing home resident, causing pain, suffering, and, ultimately, her death. The claims included negligent nursing care and violation of the provisions of the Public Health Law concerning the rights of nursing home residents and long-term care patients, allegedly resulting in the development of pressure injuries of the heels, sacrum, buttocks and hips. The resident’s pertinent medical history was positive for dementia, atherosclerotic heart disease, congestive heart failure, left carotid occlusion, right carotid blockage, cardiovascular accident (stroke) with left hemiparesis and old cerebral infarct, severe rheumatoid arthritis, osteoporosis, hypothyroidism, right total knee replacement, herpes zoster (shingles), depression, and acid reflux. We moved for summary judgment, supported by affidavits of experts in long-term nursing care and vascular surgery. We contended that, while the decedent was a resident at the nursing home, she received timely consultations in geriatric medicine, vascular surgery, cardiology, podiatry and other appropriate medical specialties, that her skin care for injury prevention and her ultimate pressure injury care had been aggressive and appropriate, and that a timely below-the-knee amputation had been recommended (to avoid the development of infection and gangrene secondary to a lower leg occlusion), but the amputation and all other aggressive treatment had been refused by the family. The plaintiff’s very well-known medical malpractice attorneys contacted us to advise that they would not be submitting opposition papers to our motion, and instead would file a voluntary stipulation of discontinuance, which indeed ended the case.

Patient v. Hospital

Supreme Court, Bronx County

Plaintiff, then 81 years old, alleged that she suffered neurological injuries affecting her memory, cognitive abilities, motor skills, and personality traits after falling off a stretcher in the emergency room of our client, a hospital, sustaining a subdural hematoma. During the discovery phase of the litigation, the plaintiff failed on several occasions to provide us with court-ordered discovery, including authorizations for medical records. The plaintiff died during the litigation, and the matter was stayed for an extended period pending the appointment of one of the decedent’s adult children as administrator of the estate. Although an administrator was eventually appointed by the Surrogate’s Court, the administrator then failed to move to be substituted as plaintiff in the action for over two years thereafter. We moved to dismiss the action due to plaintiff’s contumacious disregard of several discovery orders issued by the court, and failure to prosecute, including failure to timely move to substitute the administrator of the decedent’s estate as the new plaintiff. Plaintiff’s counsel opposed, arguing that only the appointment of an administrator by the Surrogate really mattered, whereas the motion to substitute the administrator as plaintiff in the malpractice action was merely “ministerial,” and made no substantive difference to the litigation. The court disagreed, issuing a decision granting our motion to dismiss the action for failure to timely make the motion to substitute the plaintiff, with prejudice. The plaintiff then filed a Notice of Appeal in the name of the decedent’s administrator, never having moved in any court (either the lower court or the appellate court) to have substituted him as plaintiff and to amend the caption of the action accordingly. We moved in the Appellate Division, First Department, to dismiss the appeal, mainly on the basis that the administrator lacked standing to appeal. The motion was granted by a unanimous bench. The case was dismissed and Judgment was entered in favor of the hospital.