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February 2019: Summary Judgment Granted in Alleged Nerve Injury Case

March 4, 2019

Senior Trial Partner Peter T. Crean, Associate Emma Glazer and Associate Alexander Cooper obtained an order dismissing a medical malpractice action by moving for summary judgment in New York County Supreme Court before Justice Martin Shulman. This medical malpractice action involved a plaintiff, who allegedly sustained a brachial plexus injury and permanent nerve damage due to the improper placement of a blood pressure cuff during an aortic aneurysm repair. Despite numerous factual deficiencies and the basic anatomic impossibility of plaintiff’s allegations, plaintiff’s counsel claimed res ipsa loquitur and Judge Shulman entertained the argument. Throughout the course of litigation, plaintiff’s counsel supplemented and amended the Bills of Particulars twice, ultimately asserting on the eve of Note of Issue that the NYC-area Hospital improperly placed wrist restraint cuffs on the plaintiff postoperatively.

 

We moved for summary judgment and established our prima facie case through the Hospital record, prior and subsequent treatment records, deposition transcripts, and an Expert Affirmation. Not only was plaintiff padded in the supine position during surgery, but her blood pressure was monitored through an indwelling arterial line, not a blood pressure cuff. Postoperatively, plaintiff’s wrist restraints were constantly monitored and repositioned, and were loose enough so she could move her arms. Plaintiff opposed our motion and cross-moved for summary judgment on the doctrine of res ipsa loquitur.

 

On February 9th, we appeared for oral argument before Judge Shulman, who granted our motion for summary judgment in its entirety. Notably, he found that plaintiff did not meet her burden to establish that res ipsa loquitur applies to this case. In addition, Judge Shulman found that plaintiff’s Physician’s Affidavit was procedurally and factually deficient to defeat summary judgment. More specifically, plaintiff’s physician did not indicate that he reviewed any medical records or deposition testimony, and he asserted conclusory opinions regarding the issue of proximate causation.

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