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Senior Trial Partners Rosaleen T. McCrory, Daniel L. Freidlin, Of Counsel Robert J. Betz and Associate Daniel P. Borbet successfully obtained Summary Judgment in a case involving surgery performed by urologists at MCB’s client Hospital to repair a bladder herniation (cystocele) and place a mesh sling for ongoing incontinence. During the surgery, the right ureter was transected, and one of MCB’s clients, a urologist, was consulted intraoperatively to perform a right ureter re-implantation which was done. The intended sling procedure could not be completed at that time. Plaintiff alleged negligence in the original operation, resulting in a right ureter transection, as well as in the subsequent ureter repair performed. She claimed to suffer ongoing incontinence, abdominal pain, and right leg pain/weakness, contrary to medical records.
The Honorable Tracy Catapano-Fox issued a detailed Decision& Order, finding that the defendants established a prima facie entitlement to Summary Judgment. The Court held that, based on documentary evidence and expert affirmations from Urogynecology and Urology physicians, the defendants did not depart from accepted standards of care and did not proximately cause the plaintiff’s alleged injuries.
The Court found that MCB’s experts properly determined the surgery was indicated, the plaintiff gave an informed consent for the procedure, and her family provided informed an consent for the intraoperative laparotomy. The Court also found that an injury to the ureter is a known and accepted risk of the procedure and could not be assessed until surgery. MCB’s client urologists immediately obtained a consultation with the other MCB client urologist, who repaired the ureter intraoperatively. The Court further found that the operating physician acted within the standard of care by not performing the sling portion of the procedure during the initial surgery to avoid further complications, which explained the plaintiff’s continued incontinence, and that her incontinence resolved once the sling was performed at a later date.
The Court found, in her opposition papers, the plaintiff had failed to raise a triable issue of fact. Regarding the initial operating urologist, the Court determined that the plaintiff’s expert opinions were vague, conclusory, and unsupported by the medical records. Specifically, there was no evidence that the physician acted “roughly or aggressively” to cause the alleged injury. The Court also specifically documented that the expert opinion failed to account for the fact that a ureter injury is a known risk and complication of the procedure and that the plaintiff’s anomalous anatomy had contributed to the outcome. Finally, the Court rejected the expert’s claims that MCB’s client departed from the standard of care by not placing a Foley catheter before incision and by failing to maintain the bladder at midline, as these issues were not alleged in the Bill of Particulars.
The Court further held that the plaintiff had failed to raise a triable issue of fact regarding the other MCB client urologist, as the plaintiff’s expert offered no opinions concerning the repair. Similarly, the Court found that the plaintiff failed to establish a triable issue of fact with respect to claims of lack of informed consent, negligent hiring and supervision, and any liability on the part of MCB’s client Hospital. The case was dismissed in its entirety against both MCB client physicians, as well as the Hospital.