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Senior Trial Partner Laurie A. Annunziato, Partner Amy E. Korn and Senior Associate Lauren Bisogno obtained Summary Judgment in a Kings County Supreme Court in a case involving a then 43-year-old female plaintiff who was admitted to a New York hospital in July 2015 for a robotic hysterectomy performed by a codefendant physician. Representing both the hospital and a bariatric surgeon, MCB established that during the procedure, the surgeon was called to perform an intra operative consultation for a possible enterotomy; however, no signs of bowel injury were identified, and the procedure continued without complication.
Three days post-operatively, a CT scan of the abdomen and pelvis revealed a perforated bowel. The plaintiff was returned to the operating room by MCB’s client for an exploratory laparotomy, which revealed two bowel enterotomies, which were repaired by MCB’s client. The plaintiff there after required additional surgeries, including washouts and debridements, a small bowel resection, repair of fistulas, and abdominal wall reconstruction.
The plaintiff alleged that MCB’s client failed to timely diagnose and treat bowel perforations during the robotic hysterectomy, and that MCB’s institutional client was vicariously liable for the intra-operative surgical consultation.
MCB successfully argued on summary judgment that its surgeon properly performed the intraoperative consultation during the early stages of the procedure, and that any expert opinion in opposition that the consulting physician failed to identify the perforations was speculative as the record was devoid of any evidence that the enterotomies occurred prior to the MCB surgeon’s intra-operative consultation, which was performed after trochar placement, but prior to any substantive portions of the hysterectomy. MCB further successfully argued that its institutional client was not vicariously liable for the intra-operatively consulting surgeon, who was not an employee of the Hospital.
MCB’s motion for Summary Judgment was granted in full as to the consulting bariatric surgeon and hospital, and thereafter MCB defeated attempts by plaintiff to renew and reargue the motion.