The October 10, 2017 Decision and Order of the New York Supreme Court, Appellate Devision, First Department (“New York Appellate Court”) reversed the summary judgment that the trial court had entered in favor of one of the two defendant surgeons who were both sued by the plaintiff on behalf of the decedent for alleged medical malpractice resulting in the injuries the decedent suffered when his bile duct was negligently perforated during one of two surgeries, finding that the New York medical malpractice plaintiff and the other defendant raised triable issues of fact as to whether the first defendant surgeon caused the alleged injury.
In July 2002, the plaintiff’s decedent had two medical procedures, the first performed by defendant surgeon number one, and the second by defendant surgeon number two. The New York medical malpractice plaintiff alleged that the defendant surgeons performed the procedures negligently, resulting in the perforation of the decedent’s hepatic and/or common bile duct and, eventually, causing acute renal insufficiency and liver failure.
Following the first procedure performed by defendant surgeon number one, which was a laparoscopic cholecystectomy (gall bladder removal operation), the decedent returned to the hospital with pain and was admitted. Several bile duct scans came back showing that there was no extravasation (leakage) and thus no evidence of a bile duct perforation. However, defendant surgeon number two testified that another physician, who initially reviewed one of the studies and found no leak, on further review, found a leak, indicating a perforation. Defendant surgeon number two agreed with this finding on review of the study, and therefore performed an ERCP to take x-rays of the area through the endoscope and possibly repair the leak.
During the ERCP, which involved using a catheter containing a guide wire, defendant surgeon number two encountered an obstruction and summoned defendant surgeon number one. A bile duct perforation was discovered but the defendants’ accounts blame each other for the perforated duct: defendant surgeon number one’s records indicate that defendant surgeon number two advised him that defendant surgeon number two’s catheter had perforated the duct and entered into the abdominal, while defendant surgeon number two testified that he advised defendant surgeon number one of leakage from an existing perforation. Nonetheless, both defendants agreed that, after the catheter was advanced, a guide wire went through a perforation in the bile duct into the abdominal cavity, where defendant surgeon number one left it to facilitate his finding the actual perforation in a subsequent exploratory laparoscopic surgery.
The New York Appellate Court stated that defendant surgeon number two established his prima facie right to summary judgment dismissing the complaint on the grounds that he did not cause or exacerbate the decedent’s injuries: in support of his motion for summary judgment, defendant surgeon number two provided his deposition testimony, the decedent’s medical records, and the affirmations of two experts who opined that there is no evidence of any departure from the standard of care by him, that his actions were in accordance with good and accepted medical standards of care, and that the care and treatment of the decedent by defendant surgeon number two was not the cause of the decedent’s alleged injuries (one expert opined that the perforation of the common bile duct occurred before defendant surgeon number two performed the ERCP based on the decedent’s complaint of abdominal pain and tenderness, jaundice and shoulder pain days before the ERCP was performed, the fluid seen on the CT scan dated July 23, 2002, and the fact that extravasation of contrast was evident before any instruments were introduced during the ERCP; another expert opined that any perforation of the bile duct occurred before defendant surgeon number two performed the ERCP based on a review of the fluoroscopic spot films taken during the ERCP procedure which demonstrated extravasation of contrast on initial injection of the bile duct before any instrument was introduced, therefore concluding that the decedent sustained a leak before the ERCP was performed and that none of her alleged injuries were caused by any of defendant surgeon number two’s actions).
The New York Appellate Court further stated, however, that defendant surgeon number two was not entitled to summary judgment because the plaintiff and defendant surgeon number one raised triable issues of fact as to whether defendant surgeon number two caused the bile duct perforation when he conducted the ERCP or exacerbated the decedent’s injuries by advancing the catheter and performing excessive manipulation when passing the catheter up the bile duct given the decedent’s condition (plaintiff’s expert opined that defendant surgeon number two departed from the accepted standard of care when he advanced the catheter knowing that the decedent was at high risk for duct injury due to her post-surgical inflammation, and record evidence demonstrates that her bile duct was not healthy; defendant surgeon number one testified that he was summoned to the ERCP procedure by defendant surgeon number two because it was defendant surgeon number two who perforated the bile duct).
Source (beginning on page 47) Cadichon v. Facelle, Index 16878/03
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