Articles Posted in Medical Malpractice

In Wilson-Toby v. Bushkin, a New York Medical Malpractice case, our partner Rhonda Kay, obtained an affirmance of the lower Court’s denial of defendants’ motion for summary judgment dismissing the second cause of action to recover damages based upon lack of informed consent. The plaintiff underwent elective cosmetic breast surgery performed by the defendant doctors. The plaintiff alleged that the defendants performed the surgery improperly, causing disfigurement and significant scarring. The complaint alleged causes of action seeking to recover damages for medical malpractice and lack of informed consent. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court denied their motion in its entirety. On appeal, the defendants challenged only the denial of that branch of their motion which was for summary judgment dismissing the cause of action sounding in lack of informed consent. The Court held;

“Contrary to the defendants’ contention, the consent forms signed by the plaintiff “do not establish, as a matter of law, that the scarring that the plaintiff actually experienced as a result of the procedure was, in its nature and in its extent, consistent with the type of scarring that, prior to the procedure, the plaintiff had been told to consider as being among the reasonably forseeable risks of the proposed procedure, or that a reasonable, fully informed person in the plaintiff’s position would have undergone the procedure despite the existence of such risk” (Colon v Klindt, 302 AD2d 551, 553 [internal quotation marks omitted]; see Rezvani v Somnay, 65 AD3d 537, 538-539). Nor did the defendants establish the content of additional disclosures made beyond those contained in the consent forms. The deposition testimony raises a factual dispute between the plaintiff and the defendants as to the content of additional warnings and information they may have given the plaintiff prior to surgery. The existence of triable issues of fact in the defendants’ moving papers precludes a finding that they established their prima facie entitlement to judgment as a matter of law sufficient to eliminate any material issues of fact (see Brown v Outback Steakhouse, 39 AD3d 450, 451; Gray v South Nassau Communities Hosp., 245 AD2d 337; Muscatello v City of New York, 215 AD2d 463, 464).”

Our Partner Stephen Mackauf will speak at The New York State Bar Association Seminar: Medical Malpractice to be held on Thursday, November 19, 2009 at New York Hotel Pennsylvania, 401 Seventh Avenue (at 33rd St.) New York, NY. Stephen will speak on Discovery (Plaintiff’s Perspective). For more information click here. Stephen is considered by not only malpractice lawyers in New York but by malpractice lawyers across the Country as one of the leading Medical Malpractice Attorneys in The United States. He has lectured for years to both Doctors and Medical Malpractice Lawyers in States across The Country.

By: Anthony H. Gair

Blepharoplasty basically is surgery in which excess tissue is removed from the eyelids. It is the most commonly performed cosmetic surgery on the face. Upper eyelid surgery is usually performed for removal of excess skin, muscle and fat and lower lid surgery for the removal of fat pads, so called baggy eyelids caused by herniation of periorbital fat.

As a New York medical malpractice attorney we understand the most serious complication of blepharoplasty is partial or complete loss of vision, most commonly as a result of intra-orbital hemorrhage. A widely accepted theory suggests orbital bleeding increases intraorbital and intraocular pressure, compromises the ocular circulation, and results in ischemic or optic nerve damage. Ischemic optic neuropathy and central artery occulsion are believed to be the most common final events in most cases of blindness after blepharoplasty. (Lowry JC, Bartley GB: Complications of Blepharoplasty. Surv. Ophthalmol 38:327-350, 1994).

It is thus essential, prior to surgery, for the physician to carefully assess the patient’s risk factors for bleeding. Aspirin, aspirin-containing products, other antiplatelet agents and anticoagulants should be discontinued prior to surgery. (Id. at p. 331). In this regard, the physician should obviously be aware of all medications used by the patient.

Acute orbital hemorrhage constitutes a medical and surgical emergency. Severe permanent visual impairment is likely if vascular compromise exists for more than 90 minutes. Prompt recognition and management are essential. (Id. at 332).

The following is an excerpt of a deposition of a plastic surgeon in a New York Medical Malpractice case in which the patient suffered a post-operative hemorrhage following blepharoplasty resulting in a complete loss of vision of the affected eye.
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By Anthony H. Gair;

New York medical malpractice attorney Anthony Gair discusses a medical malpractice case, which was tried in New York Supreme Court, New York County, in which a woman who had since birth a congenital abnormality known as an hemangioma on the left side of the face which is caused by an abnormal distribution of blood vessels. There are different types of hemangiomas such as capillary or cavernous hemangiomas which may actually cause physical impairment. The type of hemangioma the plaintiff had was an intradermal hemangioma often referred to as a port wine stain because of its color which does not cause physical impairment. Since her teenage years, she was able to cover it up with make-up. When she was 40 years old she developed what are known as blood spots or blisters, which are raised areas on the hemangioma which caused difficulty in covering it with make-up.

Being concerned about it, she consulted with the defendant-plastic surgeon. Plaintiff claimed she only went to the physician because of the blood spots. It was claimed she had lived her entire life with the birthmark and only desired treatment for the blood spots.

Plaintiff’s strategy at trial was that the defendant was solely a cosmetic surgeon, not a reconstructive plastic surgeon who dealt with devastating physical disfigurements. The idea was to portray her as highly mercenary, going so far as to advertise extensively for patients who she claimed she could make look better. Plaintiff asserted that she told the defendant she was concerned with the blood spots because she couldn’t cover them with make-up. She testified that the defendant told her not only could she get rid of the blood spots but that she could remove most if not all of the hemangioma. The plaintiff, as would be expected, became very emotional that after all these years the hemangioma could be removed.
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In Parnell v Montefiore Med. Ctr. decided June 23, 2009, The New York Appellate Division, First Department, reinstated the complaint in a Medical Malpractice Case against the defendant hospital which had been dismissed by the New york Supreme Court, Bronx County. While affirming the dismissal of the complaint against the defendant doctor the Court held as to the hospital;

“However, we find that there is an issue of fact as to the hospital’s negligence. It was the hospital’s duty to monitor the patient postoperatively, including monitoring the chest tube and the Pleurovac closed drainage system and all its component parts. The drainage system provided continuous suction to assist in drawing air and fluids out of the pleural space. The assertion of the hospital’s expert that there was no evidence that the chest tube became detached from the suction is contrary to the record. Dr. Lonner testified that he noticed that the chest tube connection, specifically the connection between the patient and the canister attached in turn to the wall suction, was detached, and that he immediately re-attached the connection and proceeded with the resuscitation. Dr. Lonner also testified that if the tube became detached, air could go back into the pleural space and create a pneumothorax. This testimony alone, that an integral part of the drainage system had become detached and increased the risk of a pneumothorax, the very harm that befell the infant plaintiff, raises an issue of fact as to the hospital’s negligence.

Further, plaintiffs’ expert averred that it was good and accepted medical practice to check all the component parts of the chest tube and canister every time the patient was seen, at least once every hour, and that had the tube been properly monitored, it would not have become dislodged and the infant plaintiff would not have suffered a pneumothorax. He took issue with the conclusion of the hospital’s expert that a mucus plug occasioned the infant plaintiff’s respiratory arrest, pointing out that while there was evidence that the tube was dislodged when Dr.Lonner found the infant plaintiff, the medical record contains no evidence of a mucus plug.”

By Anthony H. Gair

The human body contains forty six osteofacial compartments. Within these compartments are muscles, veins, arteries and nerves surrounded by tissue called fascia which is dense and unyielding.

The most common orthopedic setting for compartment syndrome is the closed tibia fracture for which the incidence is 3% to 17% 1. This discussion will be limited to compartment syndrome following tibia fractures.

The foreleg consists of four compartments known as the anterior, lateral, posterior and deep posterior compartments 2. Located within the anterior compartment are the motors for dorsiflexion of the foot and toes; the tibialis anterior, extensor halluces longus and extensor digitorum longus muscles. These muscles are innervated by the deep peroneal nerve which enters the anterior compartment after winding around the outer surface of the neck of the fibula. Located within the posterior compartment are the gastrocnemius, soleus and plantaris muscles which plantar flex the foot and flex the leg. These muscles are invervated by the tibia] nerve. The deep posterior compartment contains the flexor halluces longus, flexor digitorum longus, tibialis posterior and. popliteus muscles. These muscles plantar flex the foot (tibialis posterior), flex the leg and rotate it medially (popliteus), flex the big toe and flex and supinate the foot (flexor halluces longus) and flex the four small toes and plantar flex and supinate the foot (flexor digitorum longus). These muscles are innervated by the tibial nerve. Finally, the lateral compartment contains the peroneus longus muscle and the peroneus brevis muscle which pronate and flex the foot. These muscles are supplied by the superficial peroneal nerve 3.
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Following extensive settlement negotiations, our partner, Jeffrey Bloom, on May 8, 2009, obtained a settlement of $9,260,500 in a medical malpractice case in which it was alleged that the defendant doctors failed to timely diagnose a small bowel obstruction in a 37 year old woman. As a result of the defendant doctors’ negligence, the plaintiff suffered multiorgan failure including renal failure that ultimately required a kidney transplant.

On December 20, 2003, the plaintiff presented at an emergency room complaining of vomiting and abdominal pain, but the defendants failed to do any diagnostic work-up repeatedly giving her pain medications which masked her symptoms. She was sent home with a diagnosis of a virus. She returned to the emergency room three days later with excruciating abdominal pain.

Although the doctors finally diagnosed her small bowel obstruction during this second emergency room visit, her surgery to relieve the obstruction was unnecessarily delayed for 16 hours. As a result of these delays, the plaintiff suffered extensive and severe injuries. She was hospitalized for a full year and then required in-patient rehabilitation for 6 months. She has undergone 16 surgeries and 15 hospitalizations to date.

Our Partner Robert L. Conason is on The Faculty of This program which will be held from October 12 – 14, 2009 at the Marriott Eastside Hotel, New York, New York.

This CME program is designed to cover clinical aspects of breast imaging including conventional and digital mammography, breast ultrasound, breast MRI, and interventional procedures, as well as medicolegal issues. The faculty consists of nine nationally and internationally recognized experts. The program of lectures and panel discussions will be filled with “take home” information that should benefit every breast imaging practice. Bob will be speaking on October 14, 2009 0n Breast Imaging Malpractice: An Attorney’s Perspective. For more information click here.