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April 2019: Summary Judgment Dismissal in a Wrongful Death Action

April 30, 2019

Senior partner Peter Crean, senior associate Emma Glazer, and associate Alexandra Lopes obtained a summary judgment dismissal in a wrongful death action.  The case involved claims that plaintiff sustained anoxic brain damage following the performance of an emergency awake tracheostomy. The patient had been scheduled for elective surgery nine months prior but failed to proceed and returned to the insured otolaryngologist unable to breathe. In support of our motion for summary judgment, with the support of an expert otolaryngologist, we argued that the standard of care was met and the patient suffered a known but unfortunate complication, which was not a departure from the standard of care. Plaintiff submitted the affidavit of a general surgeon in opposition to the motion.  We argued that the plaintiff’s expert was not qualified to offer an opinion regarding the performance of an awake tracheostomy.  In granting our motion for summary judgment, the court found that the general surgeon lacked the requisite skill, training and education for the court to assume that the opinion rendered is reliable, and as such, held that the affidavit was of no probative value.

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