Defense Verdict In Queens County

On July 8, 2011, Daniel G. May obtained a defense verdict on behalf of a major metropolitan hospital in a wrongful death action.

The case involved an injury to the ureter of a 52-year-old man during an exploratory laparotomy and Hartmann procedure with placement of a colostomy.  It was alleged that on January 13, 2007, the codefendant surgeon and the surgical resident failed to identify, isolate and protect the decedent’s ureter and recognize an injury to the organ.  Plaintiff’s counsel argued that the codefendant surgeon and hospital resident severed the ureter, resulting in the need for four additional hospitalizations and a reparative surgery that caused further complications leading to the patient’s death.  Plaintiff claimed that the decedent “sustained injury to his ureter, renal vein and adrenal gland; infection; multiple surgeries; conscious pain and suffering; loss of enjoyment of life; and death.”  Lost earnings were claimed in the amount of “$100,000 per year, plus increases and benefits for the decedent’s work life expectancy,” and total monetary damages, including funeral expenses, were claimed in excess of $3 million.

Mr. May argued that treating bleeding tissue and vessels during surgery with a LigaSure (cautery) is the standard of care, and a devascularization as a result of the use of a LigaSure is a known risk.  He further argued that performing surgery on a morbidly obese patient poses inherent risks, and that plaintiff’s decedent presented with co-morbidities that made the January 13, 2007, surgery high-risk and extremely complicated.  If a devascularization of the ureter occurred as a result of the January 13, 2007 surgery, the jury should find it was not evidence of a departure or negligence.  On the issue of hospital liability, the codefendant surgeon was an attending in a teaching hospital and in that capacity the attending at all times supervised and instructed the resident who assisted during surgery.  The duties of a resident in a teaching hospital were established through both plaintiff and defense witnesses, including testimony that the resident properly followed the instructions of the attending and thereby met the standard of care.

The jury was charged to consider whether the defendants departed from good and accepted medical practice by burning the left ureter of plaintiff’s decedent during surgery; whether the departure was a substantial factor in causing injury to decedent; and whether the codefendant surgeon departed from good and accepted medical practice by not recognizing that there was an injury to the patient’s left ureter when the surgery was complete.

The jury found against the codefendant surgeon, but damages were entirely offset by another codefendant’s settlement.  The jury found no departure on the part of the resident and returned a defense verdict in favor of the hospital.