Partners Barbara D. Goldberg and Jacqueline D. Berger were successful on appeal in the Second Department in reversing the Westchester Supreme Court’s decision which denied summary judgment as to our client orthopedic spine surgeon.
This case involves treatment over a number of days, in which the plaintiff’s decedent, 61 years old, complained of severe back pain to various physicians, also sued in the case. An MRI revealed suspicion for an epidural abscess and the patient was instructed to go to the ER.
Plaintiff’s decedent presented to the ER at co-defendant hospital at 12:27 p.m., and an epidural abscess was confirmed on further imaging. Our client, an orthopedic spine surgeon who was on-call, but not on-site, was first notified by phone about this patient by the ER staff at 9:00 p.m. As the patient had a stable neurologic exam at the time, as relayed to him by his resident, he decided to plan for spine surgery first thing the next morning. Four hours later, at 1:00 a.m., the patient was suddenly found to be paralyzed from the neck down. Our surgeon came to the hospital and emergently performed surgery, starting at 4:05 a.m. Motor function could not be recovered. There was also a peripheral claim against the hospital in failing to prevent decubitus ulcers. The patient suffered, completely paralyzed, for approximately 8 months in hospitals and rehab facilities, before dying, leaving a wife and 2 grown children.
In the Supreme Court, all defendants made motions for summary judgment. Judge Wood granted summary judgment as to all defendants except for the Emergency Room physicians at the hospital and our surgeon. All prior treating physicians were dismissed, and the hospital was dismissed from the case only to the extent that it was not held liable for the acts of its medical residents, as no triable issues of fact were found as to them.
On appeal, the plaintiff appealed to reverse the decision granting summary judgment as to most of those dismissed from the case. MCB cross-appealed to reverse the denial of SJ. We argued, among other things, that plaintiff failed to show any timeline in which our surgeon could have reversed the oncoming paralysis, even if he had come to the hospital as soon as he was first called, at 9 p.m. We argued that plaintiff’s expert failed to raise an issue of fact in that regard.
The AD Second Department decision agreed with our argument, stating that plaintiff’s expert engaged in speculation, without evidentiary basis, in presuming the surgeon had sufficient time after he was first notified, to adequately prepare for and perform surgery prior to the onset of paralysis.