The Supreme Court of the State of New York Appellate Divison, Fourth Judicial Department (“New York Appellate Court”) decided on May 4, 2018 that the trial court erred in granting summary judgment to the New York medical malpractice defendants in a case where a man suffered an unexplained left eye injury during hip replacement surgery.
The plaintiff alleged in his New York medical malpractice lawsuit that the defendants were negligent in failing to protect and safeguard his eyes while he was under their care and they were further negligent in his follow-up care by failing to refer him to an eye specialist for immediate care. The plaintiff asserted that he would be relying on the doctrine of res ipsa loquitur in support of his negligence cause of action.
The New York Appellatge Court stated that the plaintiff was under the care and control of the anesthesia defendants during the surgery and the defendant hospital immediately after the surgery. During that time, the plaintiff was either under anesthesia and/or not fully awake or oriented to his surroundings. While the CRNA testified that there was no indication of an eye injury when she delivered the plaintiff to the recovery room, the hospital staff testified that plaintiff’s eye was noticeably irritated at that time. Consequently, the New York Appellate Court held that there is an issue of fact whether the plaintiff sustained the eye injury in the operating room or in the recovery room.
The New York Appellate Court stated that, generally, a hospital cannot be held vicariously liable for the medical malpractice of a private attending physician who is not its employee and a hospital is normally protected from tort liability if its staff follows the orders of the patient’s private physician. However, a hospital may be liable for independent acts of negligence of its employees.
In the case it was deciding, the plaintiff’s expert opined that the defendant hospital’s staff should have obtained a referral for the plaintiff to an eye specialist and that such failure, among others, was a departure from accepted practice and a competent producing cause of the plaintiff’s eye injury. Hence, the New York Appellate Court held that the trial court properly denied that part of the defendant hospital’s motion for summary judgment dismissing the negligence cause of action against it insofar as it is based on the plaintiff’s post-operative care: “Even assuming, arguendo, that the Hospital met its initial burden, we conclude that plaintiff raised an issue of fact by his expert’s affirmation, which adequately addressed defendants’ departure from accepted practice and stated that defendants’ omissions or departures were a competent producing cause of the injury.”
Source White v. Bajwa, 2018 NY Slip Op 03246.
If you or a loved one suffered an unexplained injury during surgery in New York or in another U.S. state, you should promptly find a medical malpractice lawyer in New York or in your state who may investigate your unexplained surgical injury claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
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