Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.
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NYC Medical Malpractice Lawyer Marijo Adimey obtains a $2.5million verdict in an Upper Endoscopy case

New York Medical Malpractice Lawyer Marijo AdimeyGair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is proud to announce that our partner New York Medical Malpractice Lawyer Marijo C. Adimey obtained a $2.5 million unanimous verdict in an Upper Endoscopy case in Queens, New York.

The plaintiff, Elsa Garzon (57), went to Dr. Steven Batash on June 29, 2015 for a diagnostic EGD (also known as an upper endoscopy or esophagogastroduodenoscopy).  Ms. Garzon, of Columbian decent, emigrated to the United States in 2005 to provide a better life for her two children.  While raising her two small children, she learned English, became a resident, and started working as a helper in a local Queens deli.  She eventually became a U.S. Citizen and has continued to work at the same deli for over 12 years, where she is now the head cook.

Dr. Batash recommended an upper endoscopy, followed by a colonoscopy, to address her frequent complaints of abdominal pain.  An upper endoscopy is a screening and diagnostic tool used by gastroenterologists to evaluate the upper part of the gastrointestinal tract.  Upper endoscopy is used to identify ulcers, colon polyps, tumors, and areas of inflammation or bleeding.  Performed under a mild form of anesthesia, a thin, flexible tube with a camera at the tip is used to examine the inner lining of the esophagus, stomach and duodenum (part of the small intestine).  The scope is inserted into the mouth, down the esophagus, into the stomach and then passed through the upper part of the duodenum.   Passage of the endoscope through the duodenum is incredibly important, as improper handling of the scope could cause injury to intestine and to the abdominal cavity outside the intestine.

A diverticulum is a common finding in both upper endoscopy and colonoscopy. Found most often in the intestine, a diverticulum is an outpouching of the wall of the intestine to form a sac.  While the inside of the intestine (referred to as the “lumen”) is similar to a tunnel, the opening of a diverticulum (referred to as the “mouth”) creates what looks like the opening to a second tunnel.  Proper technique is especially crucial when a diverticulum is encountered, as it requires the endoscopist to prevent his instruments (endoscope or biopsy foreceps) from entering into the mouth of a diverticulum.  When a diverticulum is observed, the endoscopist must keep his endoscope within the lumen at all times.   If the endoscopist allows his endoscope to enter into a diverticulum, he/she must immediately withdraw the scope and continue to advance the scope down the lumen for exploration.

Most important, the standard of care requires the endoscopist to prevent his instrument from perforating through the wall of a diverticulum, thereby creating a perforation of the intestine.  When this occurs, contents of the intestine start to leak into the abdominal cavity, and depending on the amount of leakage, can cause a patient to become septic, require surgical intervention, experience multi-system organ failure and even cause death.


The plaintiff claimed that during the EGD, Dr. Batash allowed his instrument to completely perforate through the wall of the duodenum.  The plaintiff also claimed that Dr. Batash performed the endoscopy in a hurried and carless manner, taking just 3 minutes and 15 seconds to not only perform the endoscopy, but to take 8 biopsy sample with his forceps, thereby contributing to his use of improper technique.  The plaintiff claimed that as a result of the negligent use of his instrument during the endoscopy, the defendant caused a perforation of the duodenum.

The intestinal perforation caused Ms. Garzon to experience excruciating pain, nausea and vomiting immediately upon awaking from the procedure.  Assured by Dr. Batash that her complaints were normal, Ms. Garzon was discharged home only to be brought by her daughters to the ER at NY Hospital Queens 90 minutes later where radiology studies confirmed an intestinal perforation in the duodenum. Hoping to avoid major exploratory surgery to repair the perforation, surgeons attempted to treat Ms. Garzon conservatively with IV antibiotics and close observation.  When her clinical picture and repeat CT scan threatened a picture suggestive of sepsis, Ms. Garzon was brought emergently into the Operating Room where surgeons performed life-saving procedures to cut open her abdomen, resect the perforated diverticulum, close the duodenum, and perform a feeding jejunostomy.

During her 9 day hospitalization, she had both a feeding tube and draining tube placed in her stomach, an IV morphine drip to control her pain, a urinary catheter to assist with and monitor urination, and a nasogastric tube passed thru the nose into the stomach to assist with feeding and drainage.  Once she developed the strength and re-conditioning to walk on her own, she was discharged home with instructions to begin physical therapy to re-build abdominal wall strength.  Ms. Garzon has a permanent vertical 7.5 inch surgical scar from her breast bone to her belly button as a result of the exploratory laparotomy needed to emergently repair her intestinal perforation. Moreover, due to the presence of intra-abdominal scarring and adhesions from the surgery, Ms. Garzon is at an increased risk of developing a bowel obstruction in the future, a fear she lives with on a daily basis. Although recommended to have a colonoscopy as well, Ms. Garzon is fearful of undergoing this procedure for fear she will face the same horrific outcome.

The plaintiff called expert witness Dr. Theodore Perlman, a gastroenterologist, who testified that Dr. Batash caused the intestinal perforation by allowing either his endoscope or biopsy forceps to enter into, and perforate through the wall of, a diverticulum.  The defendant called Dr. Frank Gress, a gastroenterologist, to defend the actions of Dr. Batash.  Dr. Gress attempted to negate the plaintiff’s claim that an instrument was the cause of the perforation by proffering a theory that it was the normal passage of air used during endoscopy that caused the diverticulum to spontaneously blow out.  The testimony of Dr. Gress concluded with a concession by him that based upon the location of the duodenal perforation as identified in both the operative and radiology reports, he could not state to a reasonable degree of medical certainly if the mechanism of injury that caused the perforation was an instrument or air.

Prior to trial, the defendant refused to give his consent with respect to settlement.  After a 2 week trial and only 45 minutes of deliberations, the jury returned a unanimous verdict in favor of the plaintiff.  The jury awarded Ms. Garzon $1,500,000 for her past pain and suffering, and $1,000,000 for her future pain and suffering.