Aug 8th, 2013

Patrick J. Brennan Wins Post-Trial Motion to Dismiss Medical Malpractice Action.

FKB’s Patrick J. Brennan obtained dismissal of medical malpractice claims, following a two-week trial in Bronx County Supreme Court that resulted in a jury verdict for the plaintiff.  The focus of the trial centered on whether a surgeon committed malpractice when he injured the plaintiff’s right common iliac artery during a laparoscopic gallbladder removal procedure.

At trial, the defense presented evidence that injury to the right common iliac artery is an accepted risk of a laparoscopic gallbladder surgery, and that the artery that was injured, due to anatomical variant and body habitus, can be as close as two centimeters from the abdominal wall.  In addition the defendant surgeon testified that the manner he employed was the same as in numerous similar procedures, and that he used commonly accepted techniques for the blind initial insertion of instruments.

The plaintiff’s expert agreed that proper procedure was employed, but maintained that the iliac artery was not in the operative field and was therefore not at risk for injury. In essence he was seeking to infer negligence from the occurrence of the injury, a theory flatly rejected by the trial court. In addition, the expert was confronted with conflicting testimony he gave in a prior trial concerning the distance between the abdominal wall and the iliac artery in a patient who was essentially the same size and weight as the plaintiff.

At the conclusion of the trial, the jury found that the surgeon had committed malpractice and awarded damages for past pain and suffering.  FKB immediately filed a post-trial motion to set aside the jury’s verdict and to dismiss the plaintiff’s complaint on the ground that the plaintiff failed to make a prima facie case of medical malpractice since the opinion testimony of the plaintiff’s expert was not properly based on the facts and evidence in the record.

On June 17, 2013, following oral argument, Justice Norma Ruiz (Bronx County) granted FKB’s motion to set aside the jury and dismiss the case.  The Court found that the opinion of the plaintiff’s expert was not supported by the record, and was therefore speculative and conclusory.  The Court held that there was no valid line of reasoning which could have led rational persons to the conclusion reached by the jury, and accordingly set aside the jury’s verdict and dismissed the plaintiff’s complaint in its entirety.

Should you have any questions concerning this decision, or the defense of medical professionals in general, please do not hesitate to contact Patrick J. Brennan.