FKB’s Neil Kornfeld and Lauren Simon win summary judgment in a medical malpractice action involving a post-operative infection allegedly caused by the negligent handling and maintenance of surgical supplies and equipment


FKB represented a podiatrist in a case where the plaintiff alleged that defendants introduced a pseudomonas infection during the performance of surgery due to negligent storage, handling and maintenance of surgical supplies, equipment and medication used intra-operatively. Defendants argued that the plaintiff’s Complaint and Bills of Particulars were devoid of any allegations of negligence with respect to the subject surgery and solely claimed that the defendant failed to maintain written infection protocols. In response, plaintiff’s counsel cross-moved to amend their Bills of Particulars to add additional claims of negligence and also opposed the motion with an expert affirmation citing five different theories of negligence. In Reply, defendants successfully convinced the Court that it was prejudicial to allow plaintiff to change their theory of liability by amending the Bills of Particulars following a motion for summary judgment and that all of plaintiff’s experts “new” theories were entirely speculative. The Court granted defendant’s Summary Judgment.


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