Summary Judgment Granted in Vascular Surgery Case

Summary Judgment Granted in Vascular Surgery Case

Managing and Appellate Partner, Michael N. Romano, obtained summary judgment in a wrongful death case stemming from a surgical procedure performed by MCB’s client, a vascular surgeon.

The decedent underwent a revision of a hip surgery performed by the co-defendant, orthopedic surgeon. Post-surgically, she developed an acute circulatory deficit of her right foot. MCB’s client was consulted and ordered an ultrasound, which revealed a clot in the right femoral artery. The decedent was transferred to another hospital where MCB’s client performed an urgent open embolectomy.  

Prior to the first incision the decedent vomited. The co-defendant anesthesiologist cleared the airway and intubated the patient. The procedure was then accomplished without complication. The patient was extubated in the operating room and brought to the recovery room. While in the recovery room, the decedent went into respiratory distress and required re-intubation. She remained intubated and sedated, developed multi-organ system failure and ultimately expired.

In support of summary judgment the affirmation of an expert in vascular surgery was submitted. This expert opined:  (1) the surgery performed by MCB’s client was urgent and absolutely necessary to salvage the decedent’s limb; (2) it was appropriate for MCB’s client to defer to the co-defendant anesthesiologist on the issue of whether to proceed with surgery given that the decedent aspirated prior to the first incision; (3) given that the co-defendant anesthesiologist suctioned the ETT tube and found there to be no aspiration and the patient saturating at 100%, it was not a deviation from the standard of care to move forward with surgery as any delay could have resulted in the loss of the patient’s leg; and (4) the decedent passed away from a respiratory illness that was not proximately caused by the surgical procedure. 

In opposition, plaintiff’s counsel argued the legal doctrine of res ipsa loquitur required denial of summary judgment.  

Res ipsa loquitur in an evidentiary doctrine which allows the fact finder to infer negligence from the mere happening of an event. Res ipsa loquitur is applied only where the actual or specific cause of an accident is unknown. In medical malpractice actions, the doctrine is traditionally limited to situations where a foreign object is not intentionally left in the body following surgery, or where a patient wakes up from surgery with an unexplained injury remote from the operative field. 

Citing the Court of Appeals decision in <u>James v. Wormuth</u>, 21 NY3d 540, a case in which the doctrine of res ipsa loquitur was found to be inapplicable where a physician exercises his or her medical judgment, it was argued since plaintiff’s claim centered around whether or not MCB’s client appropriately exercised his professional medical judgment in deciding whether to proceed with surgery or postpone, res ipsa loquitur did not apply since the weighing of the risks and benefits of one medical course of action over another cannot be assessed by the common knowledge of lay persons and required an expert’s opinion that there was a departure that proximately caused injury.

The court, citing <u>James v. Wormuth</u>, granted summary judgment and dismissed the case in its entirety.