Senior Trial Partner Laurie A. Annunziato and Associate McKenzie L. Nelson successfully obtained Summary Judgment in Queens County Supreme Court in a matter involving a patient who underwent a laparoscopic procedure, converted to an open procedure, to repair a large paraesophageal hernia in July 2021. Intraoperatively, uncontrollable bleeding from retrogastric dissection was encountered, and the planned procedure was aborted. The procedure was converted to a laparotomy, and repair of the splenic artery and a splenectomy were performed. The patient returned to the operating room in the subsequent days for an exploratory laparotomy, abdominal washout, and hernia repair with fundoplication. The patient’s postoperative course was complicated by pneumonia, alcohol withdrawal, delirium, and a thrombus in the brachial vein. There was also concern for a possible stroke, and a stroke code was called.
Plaintiff claimed that the surgeon and hospital departed from good and accepted medical standards by causing a splenic artery laceration during the laparoscopic fundoplication and argued that a major vascular injury does not occur absent negligence. Specifically, plaintiff argued that the only way the splenic artery injury could have occurred was because the surgeon improperly extended the surgical field into higher-risk retroperitoneal territory.
MCB successfully argued, through the expert affirmation of a surgeon, that injury to the splenic artery during excision of a hernia sac is a known and accepted risk that often occurs in the absence of negligence. MCB further established that the standard of care does not require a surgeon to identify or mobilize the splenic artery during this procedure and that doing so is not only impractical but may itself increase the risk of injury. MCB also established that the risk of major vessel or organ injury was discussed with the patient before the procedure, that the patient did not sustain a stroke during the subject admission based on the imaging performed, and that the patient had a preexisting history of left facial palsy. The Court found that both the hospital and surgeon established prima facie entitlement to Summary Judgment and the plaintiff and her experts failed to properly rebut the defense’s arguments. All claims were dismissed.