Estate of Patient v. Four Physicians and Two Medical Groups

Supreme Court, Bronx County

The plaintiff-administrator, son of the decedent, alleged that an internal medicine physician and his medical group, represented by us, negligently failed to medically control the decedent’s stubbornly high blood pressure, or to otherwise refer him to a cardiologist, during a four-year course of regular office visits. He asserted that the co-defendant physicians and their medical group failed to diagnose signs and symptoms of an impending aortic dissection when the patient began treating with them following a car accident in which he sustained a chest contusion. It was alleged that all of this supposedly substandard treatment, in combination, caused the patient’s sudden death by aortic dissection, while at work, three months after the accident. On a motion for summary judgment, we argued that the medical records demonstrated that our clients consistently adjusted the doses and types of antihypertensive medications prescribed to the patient, but his hypertension was simply resistant to medical treatment with numerous different anti-hypertensive drugs. In addition, he was non-compliant with medical advice and instructions. Further, he exhibited no cardiac symptoms, and stubborn hypertension alone is not an indication to bring in a cardiologist, who would typically have no greater education or expertise in the medical treatment of hypertension. We noted that the plaintiff never identified what special, different or additional treatment the cardiologist would have rendered, except to claim in declaratory fashion that the cardiologist would have successfully controlled the patient’s blood pressure. The co-defendants argued that that there were no cardiac signs or symptoms after the car accident, and that the standard of care does not require physicians to affirmatively rule out the possibility of a future aortic dissection on the basis of the occurrence of a chest contusion. The court agreed with all of the above and granted summary judgment to all defendants, dismissing the complaint. When the plaintiff appealed, we represented our clients on the appeal. The Appellate Division, First Department, unanimously affirmed the lower court’s decision. Judgments were entered in favor of all the defendants.

Estate of Patient v. Hospital and Two Physicians

Supreme Court, Bronx County

The plaintiff, a then-32-year-old, married mother of three, alleged that the hospital, an attending orthopedic surgeon, and an orthopedic surgery resident, committed medical malpractice in the performance of a right total hip replacement (THR), as well as in the post-operative care. During the THR procedure, a drill bit broke off in the patient’s right trochanter and the decision was made by the attending surgeon not to try to remove it, as it was buried in the bone and extremely unlikely ever to cause any harm, whereas attempting to remove it presented a risk to the structural integrity of the bone. The event was well-documented in the hospital records. The THR was successfully completed. However, the plaintiff alleged in the action that she was never told of the broken drill bit, first learning of its presence when she sought further treatment at another hospital, as it was revealed on X rays. She alleged that the failure to advise her of it was a departure from the prevailing standard of care, and that the retained bit exacerbated her preexisting condition of avascular necrosis, causing pain and weakness in the right hip. While our clients were certain they discussed the retained bit fragment with the patient, they could not demonstrate it through documentation of the conversation. In defense of the action, based upon expert reviews, we averred in discussions with plaintiff’s counsel that the random breaking of the bit during the surgery was a risk of the procedure, and not the result of any malpractice, and that the retained fragment of the metal bit deep in the patient’s trochanter, a large bone, would simply be enveloped by bone callus and would not cause any harm or make any functional difference. We contended that the plaintiff could not objectively demonstrate that the bit fragment aggravated her preexisting condition of avascular necrosis, and that the suit was cynical and opportunistic, based simply on the happening of the broken bit. We further contended that, even if, for sake of argument, the plaintiff was not advised of the breaking of the drill bit and the retention of the bit fragment, she would not be able to demonstrate that any harm came of that alleged omission, as it would not have caused her to take or refrain from taking any particular action in regard to the bit fragment (since it nonetheless would not have been indicated or recommended to go back and try to remove it). We were prepared to try the case, perfectly aware that a jury could have some misgivings about the lack of documentary evidence of any post-operative conversations about the broken bit. Nonetheless, despite that evidentiary issue in the plaintiff’s favor, plaintiff’s counsel opted to move to be relieved as counsel, and the motion was granted. When the plaintiff failed to retain new counsel or otherwise proceed with the action after a period of time, we moved to dismiss it for failure to prosecute, and our motion was granted. Judgment was entered in favor of the defendants.

Estate of Patient v. Three Nursing Homes, Two Hospitals and a Physician

Supreme Court, Bronx County

Plaintiff alleged that her 86-year-old decedent was caused pain, suffering and wrongful death by the acts and omissions of three nursing homes, two hospitals and a physician. We represented one of the nursing homes. The claims against the nursing homes included alleged violations of the provisions of the Public Health Law concerning the rights of residents of nursing homes and long-term care facilities, and that the alleged malpractice and Public Health Law violations resulted in the resident’s development of pressure injuries, urinary tract infections, pneumonia, altered mental status and sepsis. We contended that our nursing home had received the resident with a prior history of pressure injuries, bladder infections and UTIs (and many other serious co-morbidities), and that the documentation in the nursing home amply demonstrated the nursing staff’s preparation of complete and regular care plans addressing the resident’s skin care and conditions, locations and stages of pressure injuries or ulcers (including timely Braden scoring), nutritional status including protein and albumin levels, turning and positioning, socialization care, vital signs, and awareness of the results of blood tests and urinalyses obtained at proper intervals. There were records demonstrating that pressure injuries would sometimes widen, deepen and become more discolored, but there were as many examples of wounds—often the same ones that had previously worsened—becoming narrower, shallower and healthier in appearance, with healing reflected by the presence of granular tissue. The thrust of our defense was that, in the long course of care and treatment provided by the different defendants over time, the chronically-ill resident remained reasonably stable at our client’s nursing home. The plaintiff settled the action with another nursing home, and provided us with a voluntary stipulation of discontinuance as to our client.

Patient v. Podiatrist and Hospital

Supreme Court, Kings County

We represented the defendant podiatrist in an action in which the plaintiff, a 49-year-old woman, presented to the podiatrist for a right fifth (pinky) toe arthroplasty (joint reconstruction), a surgical reduction of a spur on the right great toe, and excision of benign lesions on the same toes. She claimed that, after the surgery, she began having pain and numbness in the right foot, and difficulty walking and standing. She alleged in the action that these symptoms were due to nerve damage negligently caused by the podiatrist’s surgery.  The plaintiff was uncooperative over the course of discovery, necessitating motion practice several times to enforce compliance.  At the end of the discovery process, the plaintiff appeared for a physical examination by a neurologist retained by us, but simply refused (despite her own attorney’s advice) to allow the neurologist to examine her left foot for purposes of comparison to the right. She was overheard to say at the doctor’s office: “They don’t have rights. I have rights.” Shortly after what we considered to be the incomplete physical examination, we moved to dismiss the case on the basis that the plaintiff’s unreasonable conduct represented the “last straw” in terms of frustrating the discovery process, as the plaintiff had demonstrated utter disregard for the defendant’s right and ability to properly prepare his defense, justifying dismissal of the action. The Court agreed and issued a decision dismissing the case.