Articles Posted in Surgical Errors

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The Long Island plaintiff is appealing an order that was made in the Supreme Court of Orange County that granted the defendants’ motion for summary judgment to dismiss the complaint.

Case Background
The plaintiff alleges that the defendant committed dental malpractice by cutting out tooth number 21 from her mouth and performing negligent bridge work. She further alleges that when she complained about pain, the defendant realized that he had committed malpractice and rather than disclose it he tried to conceal it by stating that the tooth just needed to be bonded and he performed the bonding. This occurred in November of 2003.

In January of 2004, the first defendant referred the plaintiff to another dentist who is the second defendant in this case. The plaintiff alleges that the second defendant recognized that the first defendant had committed malpractice, but did not disclose it and told her to go back to the first defendant and talk to him.

The plaintiff started this action five years later in 2009 against both of the defendants. She alleged fraud against each of the defendants and the issue was joined. The defendants moved for summary judgment to dismiss the complaint as being time barred and that the alleged fraud did not result in any damages. The Manhattan defendants further argued that the alleged fraud was the same as the alleged malpractice case.

In opposition to the motion for summary judgment the plaintiff offered her affidavit that states that as a result of the concealment she did not learn about the damage to her tooth until she went to another dentist in February of 2008.

The Supreme Court granted the motion for summary judgment and dismissed the complaint against the defendants. It is this judgment that is being appealed.

Court Discussion and Decision
When a doctor tries to conceal their own malpractice by making a material and knowing misrepresentation to the patient, the patient may seek separate causes of action to recover damages for both malpractice and fraud as long as the damages that were caused by the fraud are distinct from the damages sustained as a result of malpractice.

In this case, the plaintiff did not allege that she suffered from an injury as a result of the fraud that was separate from the injury that she received as a result of the medical malpractice. For this reason, the Supreme Court was correct in dismissing the cause of action alleging fraud against the first defendant.

All of the allegations against the second defendant are found to be without merit.

However, in regard to the malpractice allegation against the first defendant, the plaintiff has raised triable issues of fact in regard to the fact that she was unable to note the damage to her tooth until she saw another dentist at a later point in time. This would lift the statute of limitations on the case and therefore the motion for summary judgment should not have been granted.
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This is an instant action brought forth by the plaintiff for herself, her deceased husband, and her four children. The case involves personal injury claims that arise from a car accident and medical malpractice claims in regard to the treatment that her husband received at the defendant hospital for the injuries that he sustained during the car accident.

Prior to this action the Bronx driver of the other vehicle that was involved in the accident began this own action for personal injuries that he sustained during the accident.

The plaintiffs have moved to consolidate both actions for a joint trial. The defendants in the second action have opposed stating that consolidating the actions will result in undue prejudice and jury confusion. In addition, the defendants in the second action have moved to sever the causes of action that pertain to the car accident and those actions that pertain to the medical malpractice action. The defendant is also seeking to have the venue moved to Albany County where the treatment was provided.

Case Background
The Brooklyn plaintiff’s decedent was in a car accident that resulted in serious injuries to himself, his wife, and their four children. According to the plaintiffs they were driving on Route 23 in Green County when their car was hit by the defendant driver. After the accident the decedent was taken to Columbia Memorial Hospital and was then transported to the defendant hospital.
On the day after the accident the decedent underwent surgery for his injuries on his right foot, knee, and leg. He suffered from complications after the surgery, allegedly related to the respiratory treatment and anesthesia and passed away.

The driver of the other vehicle sustained injuries as well and contends the accident was the fault of the decedent. He started an action on the 8th of February, 2010 for the injuries that he allegedly sustained during the accident. The family of the decedent started the instant personal injury and medical malpractice action against the driver of the other vehicle and various medical providers in August of 2010.

The issues before the court are whether this action involving the personal injuries suffered by the family of the decedent and the medical malpractice of the medical personnel defendants should be consolidated with the action that was commenced by the driver of the other vehicle for the injuries that he sustained during the accident, whether the alleged medical malpractice case should be severed from the causes of action that pertain to the car accident, and if the venue of New York County is appropriate.

Case Discussion and Decision
The plaintiffs contend that the two actions regarding the accident should be combined because they both stem from the same car accident and therefor contain common issues of law. The driver of the second vehicle argues that because of the medical malpractice claims these should not be combined because the issues in the decedent’s family case are more complex.

After reviewing the facts of the case, the motion to combine the cases is granted. Holding separate trials in this matter would result in conflicting results. In addition, the medical malpractice claims will not be severed and will be heard by the same jury. The court also finds that the venue of New York County is appropriate as it is the county where the defendant driver resides. The venue will remain the same.
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On 19 October 1970, a doctor performed a surgical excision of a node from plaintiff’s neck. Allegedly, during the operation on plaintiff’s neck, the surgeon negligently injured a spinal-accessory nerve in her neck and also injured branches of her cervical plexus. Following the operation, plaintiff told her surgeon that she was experiencing numbness in the right side of her face and neck and that it was difficult and painful for her to raise her right arm. The physician was allegedly aware of the negligent manner in which he had performed the surgery and, as a result, plaintiff suffered a potentially permanent personal injury; that the physician willfully, falsely and fraudulently told plaintiff that her post-operative problems, pain and difficulties were transient and that they would disappear if she would continue a regimen of physiotherapy which he had prescribed and which was then being given by another doctor. Consequently, plaintiff continued with the physiotherapy prescribed by the subject doctor until October 1974. Meanwhile, she had moved to Syracuse, New York, where she sought further medical advice. In January 1974, she was first apprised by the Syracuse physician of the true nature of her injury and that it probably had been caused at the time of her surgery. This doctor’s diagnosis was substantially confirmed in October 1974 by a professor of medicine, specializing in neurology, at Upstate Medical Center in Syracuse, who also advised that reanastomosis of the sectioned nerve four years after the surgery would not be a physiologically successful procedure. Allegedly, the doctor who performed the surgery on plaintiff had intentionally withheld information as to the true nature and source of her injury, thus, she was deprived of the opportunity for a cure of her condition.

Sometime in April 1976, the present personal injury action against the surgical doctor was commenced. Prior to service of an answer, the doctor moved to dismiss the complaint under CPLR 3211 on the ground that the cause or causes of action alleged were barred by the Statute of Limitations. Plaintiff then cross-moved for leave to amend her complaint to include a cause of action for malpractice.

The Supreme Court in Westchester denied defendant’s motion to dismiss and granted the plaintiff leave to amend her complaint, as requested. On appeal, the Appellate Division reversed, granted defendant’s motion and dismissed the complaint. Plaintiff thereupon appealed the said decision.

The Ruling:

Here, the court finds that the complaint by the patient against her treating physician sets forth a cause of action based on intentional fraud as well as a cause of action in negligence for medical malpractice. Further, by reason of the physician’s alleged subsequent intentional concealment of the malpractice and misrepresentation as to its cure, the time within which the action in negligence could be brought was not limited to the then applicable three-year statutory period of limitations and that, on the present motion to dismiss the complaint, it cannot be said that the action was not commenced within a reasonable time after discovery of the malpractice. Moreover, the Statute of Limitations applicable to the claim for damages based on the intentional fraud is the six-year statute. Different measures of damages are applicable to the two causes of action.

Clearly, the complaint sufficiently sets forth two causes of action, although not explicitly or separately denominated, one in negligence for medical malpractice on the part of the surgical doctor in connection with the surgical excision of the node and the other for an intentional tort in knowingly and fraudulently misinforming plaintiff as to her physical condition and misrepresenting that physiotherapy would produce a cure.

The complaint sufficiently sets forth a cause of action for medical malpractice; the critical issue is whether such cause of action was barred by the then applicable three-year Statute of Limitations. Normally the statute would have precluded institution in April 1976 of a claim for damages for malpractice alleged to have occurred in October 1970. Nonetheless, this complaint further alleges that defendant intentionally concealed the alleged malpractice from plaintiff and falsely assured her of effective treatment, as a result of which plaintiff did not discover the injury to the nerve until October 1974. In this case, principles of equitable estoppel are applicable to relieve plaintiff from the proscriptions of the statute. It has been ruled that fraudulent representations may play a dual role. They may be the basis for an independent action for fraud and they may also, in equity, be a basis for an equitable estoppel barring the defendants from invoking the statute of limitations as against a cause of action for breach of fiduciary relations.

In the instant case, the elements of reliance by plaintiff on the alleged misrepresentations as the cause of her failure sooner to institute the action for malpractice and of justification for such reliance, both necessarily to be established by her, are sufficiently pleaded within the fair intendment of the allegations of this complaint. In passing, the court observes that, if it is established that plaintiff is not precluded from prosecuting the cause of action in negligence and she proves that cause on the merits, the measure of damages which she will be entitled to recover will be that normally associated with medical malpractice actions in situations such as the present.

The issue now is the claim of fraud as an intentional tort. The essential elements, here alleged or within the reasonable intendment of the complaint, are knowledge on the part of the physician of the fact of his malpractice and of his patient’s injury in consequence thereof, coupled with a subsequent intentional, material misrepresentation by him to his patient known by him to be false at the time it was made, and on which the patient relied to his damage in this case, defendant’s intentionally concealing from his patient the fact of the malpractice and thereafter fraudulently misstating that the therapy prescribed would effect a cure. This is more than another aspect of the malpractice or even another act of alleged negligent malpractice on the part of the treating physician; the complaint alleges an intentional fraud that the surgical doctor, knowing it to be untrue yet expecting his patient to rely on his advice, advised her that physiotherapy would produce a cure, in consequence of which fraudulent misrepresentation the patient was deprived of the opportunity for cure of the condition initially caused by the doctor’s alleged malpractice. If these allegations are proved they will establish an intentional tort, separate from and subsequent to the malpractice claim. Recovery of damages in such case is governed by the six-year Statute of Limitations under CPLR 213. The application of the three-year Statute of Limitations is not mandated by the circumstance that the fraud alleged arises as a sequel to an alleged malpractice.

Thus, in the case at bar, if it can be shown that at the time of the surgical doctor’s alleged fraudulent misrepresentations it was already too late to undertake a reanastomosis of the severed nerve, this plaintiff will have sustained little or no damages in consequence of the alleged fraud. If only a partial cure were then possible, damages would be assessable on that basis. Recovery would be greatest if plaintiff were diverted from what could otherwise have been a complete cure.
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Two teenagers underwent heart treatment when they were young children. As a direct result of this treatment they suffered from brain damage. Both of these teenagers were treated at hospitals in Bristol.

These teenagers have been awarded half a million pounds each to compensate for medical negligence. The money was awarded as a settlement from the Bristol Healthcare NHS Trust in the United Kingdom. The report noted that the money is awarded to help deal with ongoing medical expenses, and prior suffering and treatment expenses.

The standard of surgery conducted by a pediatric cardiac unit in Bristol was called into question almost ten years ago. A public enquiry was conducted to look specifically at the risks. The report found some startling results. The Lawyer has obtained a copy of the public enquiry report which shows just how serious the scandal really was.

This uncovered what was branded the Bristol Heart Scandal by the papers. The poor treatment resulted in the deaths of thirty five young patients, and more were severely injured. Many of the injuries included brain damage which will affect the patients for the rest of their life. The study found that the mortality rates in these hospitals were double most other hospitals.

The patients both argue that the level of care and the standard of surgery were far below what was expected. Not only did the treatment put their lives in danger, but it has left them permanently disabled. One of the patients requires around the clock care due to severe brain damage. This care is currently provided by her grandmother, but it is not clear what will happen when she is unable to care for her.

Although both of the cases have been settled, the NHS trust points out that they have not admitted liability. They offered the compensation as a way to safeguard their lives and ensure that they can afford to live. This ruling has hopefully made it much easier for the two patients who have been left disabled for the rest of their life. Hospitals in Queens and Staten Island are aware of this circumstance.
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A female patient recently underwent surgery to treat carpal tunnel syndrome. She had been suffering from this condition for years along with hypothyroidism, hypertension and diabetes. Before the surgery was due to start a nurse gave the patient a full checkup and put an IV line into the arm of the patient. The physician requested 5% dextrose, with 40mEq of potassium chloride; the infusion was started while the patient was waiting for the surgery to start.

The Nassau patient was due to undergo surgery shortly after the infusion started. However, as the first operation was more complicated than thought her surgery was delayed. This meant that the patient needed to wait longer than four hours before the surgery started. Around two hours after the IV line was started, the nurse noticed blisters around the infusion site. After surgery these blisters remained and caused necrosis which lead to painful scars.

According to the case details obtained by the Lawyer, the patient thinks that the problems were caused because the catheter was not inserted correctly. This meant that her arm developed eschars which became very painful.

To deal with this the patient required further procedures to remove the excess skin. However, this left scars which she still has to this day. This injury also causes her pain whenever the scar tissue is stretched. Because of this the patient was forced to give up her day job.

The patient hired an Attorney to help file a case against the medical center. The patient alleges that the staff was negligent in their care by not inserting the catheter correctly and not monitoring the site of the infusion. The medical center argues that this symptom is a well-known risk which can be caused by inserting an Intravenous catheter. The Suffolk medical center also explains that the nurse who inserted the catheter has over 20 years of medical experience and has a good reputation for caring for patients.

The lawyers for the medical center made a settlement offer of $1.5 million to cover past and future pain and suffering.
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The Ohio Supreme Court heard arguments recently in a medical malpractice case involving the University of Toledo – College of Medicine and the issue of state employee immunity from litigation. The court’s decision in this case will have significant implications for certain medical negligence plaintiffs.

In this case, the court must decide if a surgeon who was treating his own patient is immune from a medical malpractice lawsuit because a student was observing the procedure. The plaintiff in the case alleges that the surgeon made mistakes during two vasectomy procedures which caused pain, additional medical bills, lost wages, and emotional distress. The surgeon claims immunity under Section 9.86 of the Ohio Revised Code. His legal team argues that the plaintiff can only seek damages from the University of Toledo’s medical school, claims an

At stake in the highest state court’s decision is whether liability of certain actions performed by some 8,000 Ohio doctors who now serve in similar mentoring functions will be shifted from private insurers to the state.

As to whether that is good for medical malpractice victims, the plaintiff in this case has argued against immunity from the start, preferring to proceed directly against the surgeon. Five years from the events that caused him harm, the plaintiff is still awaiting his day in court on the underlying malpractice issue.

The life cycle of medical negligence lawsuits in Brooklyn and Long Island are often quite long because legal complexities often arise. For that very reason, injured parties or surviving family members should keep in mind that they must enlist a Law Office that has the resources and experience to handle their claim over the long haul.

One of the most important steps is to assemble a record of harm suffered and symptoms. As soon as awareness hits that something went wrong, the patient needs to compile information and lists. From surgical mistakes, birth injuries and other medical mistakes to failures to diagnose cancer, heart disease or the aftermath of a stroke, identifying the harm is vital to being able to assess what went wrong.

In the present case, the defense tried to deflect legal liability to another party. When legal maneuvering causes protracted delays, it is important to know that your medical malpractice lawyer will keep you updated about the status of your claim.
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A surgeon is being sued for medical malpractice after errors during two separate surgeries. The patient claims that errors made during the procedures caused unnecessary pain and suffering along with economic damages including lost wages and additional medical bills. The surgeon’s case relies on the fact that he is exempt from liability because he was teaching at the time, explains a Lawyer.

At the time of the medical errors, the surgeon was being watched by a medical student. The doctor did receive compensation for the procedures. The debate in Westchester resolves around whether the doctor’s activities were classified as volunteer activities, even though he was paid for his time, which would exempt him from personal liability and only allowed the patient to seek monetary damages from the medical school. The determination of liability in this case has wide implications for doctors and medical schools nationwide.

A judgment against the Bronx doctor in this case could result in higher medical malpractice rates for all doctors, while a judgment against the medical school could increase the costs of training future doctors. At this point, there is little question that errors occurred in the performance of the procedures, states a doctor. The second surgery was performed because of errors during the first procedures – further errors during the procedure resulted in permanent physical disfigurement.

Lawyers are closely following this case as its results will have wide implications in any procedures done in the presence of medical students. This case is different than the majority of medical malpractice cases because of the fact that no one is denying that errors were made, explains a report. In this case, each party is trying to deny liability for the error, resulting in a different tact in this trial.

Meanwhile, the man has yet to receive compensation for his pain and resulting financial difficulties. Medical malpractice cases can often be lengthy, as this one has been, since it has already gone through several appeals. In the case, despite the obvious errors, the case may drag on for years due to the two parties, the university and the doctor, both trying to avoid liability for the error.
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According to parents of a four-year-old, doctors were supposed to operate on their son’s right eye. The surgery was supposed to stop the boy’s eye from wandering. His parents report that that not what happened.

According to the parents, his eye surgeon first mistakenly operated on his left eye. When she realized her mistake, she then repeated the same procedure on his right eye – the correct one. As their son recovers from this medical mistake, they are concerned that they are observing more problems with the boy’s vision than they did before the surgery.

The mother of the young boy says to a Lawyer that she has not noticed any improvement in the right eye. She says she might even be seeing the left eye now wandering – when it didn’t before the mistaken surgery. She is worried about what the unnecessary surgery has done to his vision and what it could do in the future.

The doctor who practices in Nassau and Suffolk has not been reached for comment.

Right after the surgery, the doctor told the parents that “frankly, I lost sense of direction and didn’t realize I had operated on the wrong eye until I was done operating on the eye.”
The Chief Administrative Officer of the hospital where the surgery took place said that there are procedures in place to help prevent mistakes like this. A source reports that the hospital’s critical incident team will be responding to the surgery mix-up. They will interview all of the staff present in the operating room. “Our hope is to never have it happen again in any of our hospitals,” the hospital Chief Administrative Officer said.

The child’s father reports that the team had come into the boy’s room prior to the surgery and circled the eye they were to operate on, but for some reason the doctor still proceeded with the surgery on the incorrect eye.

The parents have hired a lawyer and are considering a malpractice suit.

While hospital representatives assure their patients that they are doing everything they can to ensure they are doing the procedures they intend to do and achieving the results they intend to achieve, perfection is not always attainable.
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At the hands of allegedly negligent surgical staff, a newlywed 46-year-old woman suffered brain damage in a surgery that she underwent for illness shortly after returning home from her honeymoon.

Last week, the court heard how the 46-year-old Wyattville Park resident had been a “bubbly and vivacious” receptionist, but how after her injury she needs almost 24-hour care. A rep said that the woman is a completely different person.

The woman’s husband, the chief executive of Phonographic Performance Ireland and the director general of the Irish Music Rights Organization, is suing on his wife’s behalf. At the root of the suit are the allegations that the HSE and the consultant surgeon, who works as St. Michael’s Hospital where the operation was carried out, were negligent and breached their duty the patient.

The hospital has admitted to a failure to provide a nutritionist during the surgery. This is the only statement of fault issued by any of the defendants, but it could prove to be a critical one.
The newlywed woman became ill while on honeymoon in the Dominican Republic in June of 2005. When the couple returned home, the wife was referred to St. Michael’s where she underwent laparotomy, a surgery to remove multiple abdominal adhesions. She was discharged ten days later, but only a few days later, she had to be readmitted with a worsened condition. She underwent a second surgery, including another laparotomy, in which a portion of her bowel had to be removed.

During this surgery, or immediately after, the patient required emergency intravenous feeding or total parenteral nutrition. According to a report, the surgical staff failed to administer thiamine with that required feeding. Because of that, the woman suffered brain damage and a condition known as Wernicke-Korsakoff psychosis.

Ultimately, the plaintiff alleges that the defendants are responsible for failing in their duty “to monitor, test, and review her nutritional needs as part of the nutrition management.”
Those injuries have left the 46-year-old receptionist confused, increasingly disoriented, and with memory problems. Executive and cognitive linguistic functions were also impaired. Her overall IQ has lowered as well, according to her attorney who practices in NYC and Staten Island.
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The University of Southern California (USC) claims they have corrected what they term a flaw in the system that allowed a group of surgeons to transplant a kidney into the wrong patient last January. The wrong transplant occurred when the wrong organ ID wound up on the wrong paperwork. Once that mistakewas made, surgeons were essentially given the okay to proceed with the transplant.

One of the things that a rep has learned is that this ‘rare’ occurrence is not unique to USC. There are similar procedures in use at other transplant centers across the country. The ‘rare’ event started as two kidneys arrived at USC for transplant on the same day. The USC University Hospital performs two transplants a week at the most. Another contributing factor to this rarity is that both kidneys were for the left side, and both kidneys were for someone with type O blood.

Normally, the nurse is to record the operating room booking slip, which includes the organ donor ID number. On this occasion, no number had been recorded. At this point, the nurse is supposed to transfer the number from the operating room booking slip to a blood verification form. This was to serve as a final verification that the blood types and correct organ are matched. Sources have said that since there was no organ donor ID number on the booking slip, the nurse got the number from the box that contained the kidney. The problem is that was the wrong kidney.

The final check and balance that occurs at that point of the process also failed. It failed since the nurse had gotten the wrong number from the wrong location. This meant that the doctors and nurses all verified the wrong number. The operation proceeded.

Fortunately, the patient that received the transplant that day survives and is reportedly doing well. Everyone concerned is fortunate that the organs were of the same blood type. The person that was scheduled to have received that kidney is still on USC’s waiting list, however.

Although state and federal authorities continue to investigate what went wrong, this same system flaw had gone unnoticed by many for a very long time. It had even gone unnoticed from the same state and federal investigators that are now investigating the incident. In the meantime, USC has made their necessary improvements to their system in order to ensure that this does not happen again, and will resume their transplant schedule. So
have hospitals in Nassau and Suffolk Counties.
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