MCB Summary Judgment Win in ENT Surgery Case

by | Sep 11, 2020 | Medical Malpractice | 0 comments

Senior Partner Peter T. Crean and Senior Associates Emma B. Glazer and Nicole S. Barresi won on summary judgment on behalf of our ENT client physician before Judge Rakower in New York County.

This case involved a 62 year old retired police officer who presented to our ENT physician with severe obstructive sleep apnea. He had failed noninvasive CPAP treatment and presented for surgical consultation. After four preoperative visits, the patient agreed to undergo a uvulopalatopharyngoplasty and lateral pharyngoplasty, which would widen the airway and hopefully resolve his sleep apnea. The doctor explained the risks, including swallowing difficulties, bleeding, surgical failure, and the need for additional procedures, benefits, and noninvasive alternatives. The patient agreed and signed two separate consent forms. He was also provided with a handout regarding the risks of sleep apnea surgery. Following surgery, the patient complained of swallowing difficulties, dysphagia, and weight loss. Plaintiff’s complaint asserted causes of action in both medical malpractice and lack of informed consent.

Our expert otolaryngologist opined that the patient was an appropriate surgical technique, there were no findings intraoperatively that increased the patient’s risk of complications, and he was appropriately consented for surgery. In addition, she also opined that there was no actual evidence of dysphagia or weight loss. In fact, the patient was overweight preoperatively and maintained a normal BMI postoperatively. She also opined that his swallowing difficulties were anatomically found to be throughout the throat, not just in the operative site, and so were more likely attributable to his uncontrolled acid reflux.


Interestingly, plaintiff opposed the motion solely on the basis of informed consent. He did not provide any expert commentary regarding the malpractice cause of action, including that the surgery was improperly performed or any opinion as to how the surgery caused the plaintiff’s claimed injuries. His expert opined solely that our doctor did not adequately emphasize the risk of swallowing difficulties and that surgery could have been avoided by using CPAP.

In Reply, we argued that plaintiff failed to meet his burden to defeat summary judgment. We argued that opposition had several defects insufficient to overcome our motion, including that his expert did not adequately address causation and that plaintiff’s expert did not comply with PHL 2805-d, requiring expert commentary on what a “reasonably prudent person” would have decided with the information provided by the physician. We also emphasized that the plaintiff was in fact adequately advised of the alternative of CPAP, as evident in the contemporaneous medical records, deposition testimony, and outside providers.

The Court agreed and granted our motion in its entirety, dismissing plaintiff’s case. Specifically, the court found that plaintiff failed to meet his burden to defeat summary judgment on lack of informed consent, as his expert did not address the reasonably prudent person standard and also did not opine as to causation other than one conclusory statement.