Articles Posted in Medical Malpractice

The decedent underwent three open heart surgeries within a period of less than twenty-four hours. Evidence was offered that the defendant’s malpractice necessitated the second and third surgeries. Hospital records record a pain level of 10 following the second operation. Even when sedated Mr. AT was restless and agitated and required wrist restraints. During his ensuing five-month hospitalization, Mr. AT experienced multiple blood transfusions, six episodes of pneumonia, a partial lung collapse, requiring a bronchoscopy, intestinal bleeding, urinary tract infections, decubitus ulcers, sepsis and hearing loss. He underwent surgery for his bed sores. Antibiotics administered to Mr. AT for infection rendered him comatose at times. As a result of the use of respiratory tubes, he was unable to speak at times and communicated with his wife in writing. In several of his notes he expressed that he was in pain and discomfort, and in fear of dying.

The amount of damages to be awarded to the plaintiff for conscious pain and suffering and loss of services is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation. Here, the jury’s award for conscious pain and suffering deviates materially from what is reasonable injury compensation to the extent that it exceeds $1.2 million

Upon this record, the jury’s award for loss of services deviates materially from what is reasonable compensation to the extent that it exceeds $200,000.00.

CPLR 1601(1) does not address situations, such as here, where the alleged non-party tortfeasor is the State of New York which cannot be joined as a co-defendant in the Supreme Court. The prevailing view, however, is that apportionment against a state joint tortfeasor, subject to suit in the Court of Claims, is appropriate in a Supreme Court action.

In addition, CPLR 1601 (1) permits a state defendant, in the Court of Claims, the benefit of Article 16 apportionment against a non-state, joint tortfeasor by exempting the State from the rule which excludes a non-party’s share when jurisdiction cannot be obtained over that non-party. In this case, the plaintiff has sued Downstate Hospital in the Court of Claims and the hospital in that action has raised as an affirmative defense the protection of CPLR, Articles 15 and 16. Thus, the state hospital may well seek apportionment against Dr. BK in the pending Court of Claims action.

It is noted that when two tort-feasors neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive. Although the original wrongdoer is liable for all the proximate results of his or her own tortious act, including aggravation of injury by a successive tortfeasor, the successive tort-feasor is liable only for the aggravation caused by his own conduct. However, in order for a defendant to be considered an independent and successive tortfeasor and therefore liable only for such aggravated or additional injury caused by it there must be demonstrated two separate injuries, with the second injury not necessarily resulting from the first, and further, there must be demonstrated the capability of delimiting the injures caused by the successive tort-feasor.

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.

In this action for medical malpractice and wrongful death, defendant JH. Dr. BK seeks an order, pursuant to CPLR 4401, 4404 and 5501, setting aside a jury’s liability verdict in favor of plaintiff and award of damages totaling $19,780,000.00
Dr. BK alleges that (a) plaintiff failed to make a prima facie showing of medical malpractice; (b) the liability verdict is against the weight of the evidence; c) a new liability trial is required in order to apportion fault against Downstate Hospital 1; (d) the interest of justice requires a new trial; (e) the awards for pain and suffering and loss of services are excessive and not supported by the evidence; and (f) the award for wrongful death, pecuniary loss, was not proven with reasonable certainty.

Plaintiff opposes the motion. On April 7, 2003 plaintiffs decedent, AT, was admitted to Downstate Hospital for single bypass heart surgery and a mitral valve repair. Within a period of less than 24 hours, Dr. BK performed three open heart surgical procedures on Mr. AT. At trial, plaintiff alleged negligence by Dr. BK in connection with these surgeries, and Dr. BK claimed that hospital staff was negligent in the monitoring and treatment of various infections and complications during Mr. AT’ ensuing five-month hospitalization. Mr. AT died on September 12, 2004, without leaving the hospital.

The jury determined that Dr. BK departed from good and accepted medical practice in failing to inspect Mr. AT’s lung injury for bleeding at the conclusion of the first surgery and in failing to properly test his staple line repair during the second surgery. The jury awarded $6 million for Mr. AT’s conscious pain and suffering, $13 million to Mrs. AT for the loss of Mr. AT’s services and society prior to his death, and $780,000.00 in pecuniary damages on the wrongful death claim. The jury declined to make an award for wrongful death, loss of guidance, on behalf of Mr. AT’s adult children.

In connection with his challenge to the liability verdict, Dr. BK first argues that Dr. JM, plaintiffs expert, was not qualified to opine as to the standard of care governing cardio-thoracic surgeons in New York State. This contention is without merit.

The prevailing standard of care governing the conduct of medical professionals, as articulated by the Court of Appeals in Pike v. Honsinger, requires that a physician exercise that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where the doctor practices, and which is ordinarily regarded by those conversant with the practices as necessary to qualify [the doctor] to engage in the business of practicing medicine or surgery. Although malpractice jurisprudence has evolved to accommodate advances in medicine, the Pike standard continues to serve as the beginning point of any medical malpractice analysis.

To Be Cont…
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