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Dr. BK and Dr. JM …cont

Dr. JM, a board certified cardiac surgeon and professor in heart surgery at the University of Minnesota, testified regarding his training in Central America, Germany and Minnesota, his more than 120 publications on the topic of cardio-thoracic surgery and related subjects, and his participation in approximately 6,000 such surgeries. Thus, Dr. JM, by study, training, observation and experience was qualified to offer an opinion as to the relevant standard of care.

Moreover, the defendant’s present challenge to the qualifications of Dr. JM was not preserved for review by timely objection. In any event, the contention lacks merit as Dr. JM possessed more than adequate qualifications to render an opinion and any alleged lack of skill or expertise on his part was merely a factor to be considered by the jury in weighing his testimony.

The defendant next argues that the injury plaintiff failed to establish, prima facie, that he departed from the accepted standard of care in the manner in which he inspected the decedent’s lung for bleeding at the conclusion of the bypass surgery. This argument, also, is rejected. Dr. JM testified that it did not appear from the records that Dr. BK inspect id the apex area of the upper left lobe of the lung for bleeding or leakage of air at the conclusion of the bypass surgery, and that this constituted a departure from the accepted standards of care. According to Dr. JM, the significance of doing such an inspection is that it would have provided Dr. BK with the opportunity to address the bleeding or leakage as he did later and would have avoided the need for a second or third surgery.

There was testimony by Dr. BK and Dr. JM regarding excessive bleeding from the chest tube following completion of the bypass surgery. In addition, testimony was offered by Dr. BK and Dr. JM regarding bleeding from the apex of the lung, in the area of adhesions where the mammary artery was harvested, upon re-opening the decedent’s chest cavity to perform the second surgery. In view of this evidence the jury was free to reject the testimony of Dr. BK that he conducted an appropriate inspection for bleeding and leaking at the conclusion of the bypass surgery.

Dr. BK argues that the exercise of his professional judgment in testing his staple repair, luring the second surgery, was neither a departure nor a proximate cause of injury to the decedent. Essentially, he contends that plaintiffs criticism of his testing of the staple line during he second surgery derives solely from the conclusion of her expert that because the staples failed, more stringent testing by him should have been undertaken.

At trial Dr. BK explained that during the second surgery he excised defective tissue from the left upper lobe of the lung where there was excessive bleeding, cauterized the area and closed/connected the tissue with surgical staples. He then tested his repair by irrigating the area with fluid and inflating the lung by means of a ventilator in use during the surgery. However, plaintiffs expert, Dr. JM, offered testimony that the level of pressure provided by a standard ventilator used during surgery would have been inadequate to test the viability of the stapled repair. Dr. JM indicated that in the pleura, or lung tissue, staples pull through and, therefore, 30 centimeters of pressure was required to adequately test the repair. This was especially true in Mr. AT’s case, Dr. JM indicated, because of his poor lung tissue. Because the lung tissues were bad the metal staples tore through and Mr. AT continued to bleed, necessitating a third procedure. Dr. JM testified that had the appropriate testing been conducted during the second surgery, the defect would have been discovered and remedied by reinforcing the sutures with pericardium strips, a technique successfully employed during the third surgery. The jury, therefore, was free to conclude that, as testified to by plaintiffs expert, if the lung had been properly tested, the defect discovered and remedied during the second surgery, the third surgical repair would not have been necessary.

In an action for personal injury a joint tortfeasor whose proportionate share of fault is 50 percent or less is liable for the plaintiffs non-economic loss to the extent of its proportionate share. Dr. BK maintains that he was entitled to have the jury apportion fault between him and the non-party Downstate Hospital.

CPLR 1601 [1] requires that the equitable shares of non-party joint tortfeasors be included in a determination of the relative culpability of the named defendants unless the claimant’s is unable, with due diligence, to obtain jurisdiction over the non-party tortfeasors. The burden of demonstrating inability to obtain jurisdiction over the non-party is on the claimant. Upon such a showing, the equitable share of the non-party will not be considered. One apparent purpose of this provision is to enhance plaintiffs recovery only when it is jurisdictionally impossible to join all of the tortfeasors in the New York action.

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