Partners Barbara D. Goldberg and Michael A. Sonkin, assisted by Associate Jennifer Wanner, obtained the affirmance of a summary judgment dismissal on behalf of our clients, a prestigious New York hospital and its attendings, an otolaryngologist and an anesthesiologist. The dismissal, which was ordered by the Supreme Court, Bronx County, was affirmed on appeal by the Appellate Division, First Department.
Plaintiff, then 80 years old, alleged that following the insertion and stabilization of a laryngoscope, in connection with a biopsy of a suspicious mass on her vocal cords, she sustained multiple fractured teeth and a jaw fracture. The plaintiff moved for partial summary judgment under the doctrine of res ipsa loquitur, arguing that her injuries could not have occurred in the absence of negligence, while we moved for summary judgment and opposed plaintiff’s motion using affirmations from three experts, who were board certified in otolaryngology, anesthesiology and oral surgery. These experts established that the injury which occurred, while extremely rare, was a recognized and accepted risk of the procedure which could occur in the absence of a departure from accepted practice. Justice George Silver found that the plaintiff’s failure to submit an expert affidavit in support of her res ipsa loquitur theory was in and of itself fatal to her position, given the medical complexities of the case. Justice Silver essentially adopted our argument that due to the complex medical procedure used, and the subsequent injuries sustained, the opinion of an expert was required, and not an affidavit from the plaintiff’s attorney, to opine that the plaintiff’s injury could not have been sustained absent negligence. The Appellate Division, First Department, upheld Justice Silver’s ruling, finding that the plaintiff failed to adduce sufficient evidence in opposition, in that submitting an attorney affidavit, and not one from an expert, was insufficient to rebut defendants’ experts. As a result, the dismissal of the action as to all of our clients was upheld.