Neil B. Ptashnik and Michael N. Romano secured Directed Verdict in Surgical/Wrongful Death Case

Senior Trial Partner, Neil B. Ptashnik, assisted by Managing and Appellate Partner, Michael N. Romano, successfully secured a directed verdict on behalf of VLMM’s client, a board-certified general surgeon, after his cross-examination of the plaintiff’s expert at trial. The firm’s paralegal, Taylor Cook, provided invaluable assistance during the preparation and trial of this case.

The decedent presented to the hospital with complaints of constipation with abdominal pain and distention. He was admitted to the hospital with a diagnosis of congestive heart failure, pneumonia, and sepsis secondary to pneumonia, for which he began receiving antibiotic therapy. A CT scan revealed a small bowel obstruction with a possible incarcerated small bowel or ventral hernia.  An incarcerated hernia is an emergent medical condition that can result in death if not surgically treated. VLMM’s client was called in to perform a surgical consultation. Upon examination, he observed the decedent to have a distended abdomen that was tender to palpation, with a palpable hernia, and increased tenderness to the upper quadrants of the abdomen. As a result of the CT scan results and the decedent’s clinical picture, an exploratory laparotomy, with a small bowel resection, repair of a ventral hernia and lysis of adhesions was performed. During surgery an incarcerated loop of small bowel was encountered, which was causing the obstruction. Our client successfully alleviated the obstruction, and the decedent was transferred to the intensive care unit in stable condition. Despite being provided with excellent medical care, the decedent developed a post-operative infection, which is a risk of any procedure, and due to his advanced age and multiple pre-existing co-morbidities, passed away.

During his cross-examination of plaintiff’s expert surgeon, Mr. Ptashnik first established the plaintiff’s expert, who was not licensed in New York, had no familiarity with the community standard of care, or the minimum standard of care statewide. Thereafter, Mr. Ptashnik successfully dismantled each and every one of the expert’s medical opinions. Plaintiff’s expert tried to argue that non-surgical, conservative treatment, should have first been attempted. Given his superior knowledge of the medical records, Mr. Ptashnik obtained the expert’s admission that surgery would absolutely be indicated if there was a finding of inflammation in the bowel, then confronted him with the surgical pathology report that stated the bowel was inflamed. This occurred throughout cross-examination, the expert would render an opinion, and then be confronted with the medical records, which belied his opinion, causing him to contradict himself on multiple occasions. This culminated in plaintiff’s expert being unable to provide an opinion on proximate causation, connecting the alleged malpractice to the cause of death.

In our Memorandum of Law in support of a directed verdict, it was argued that our client was entitled to a directed verdict because plaintiff, through her expert at trial, failed, as a matter of law, to establish a prima facie case of medical malpractice because her expert failed to testify as to the standards of surgical care in the locality, or to the minimum standards of surgical care statewide or nationally.  As such, plaintiff’s expert was unqualified to render an opinion. Mr. Romano, through meticulous legal research, cited several long-standing, Court of Appeals decisions to support this argument, as well as recent directly on-point case law, which the Court cited in its decision dismissing the case. The Court also held that even if it was assumed plaintiff’s expert was qualified, Mr. Ptashnik’s cross-examination established that VLMM’s client did not deviate from standards of surgical care and his treatment did not proximately cause death.