The New York Appellate Division, Third Department (“New York Appellate Court”) held in its opinion dated November 5, 2020 that a chiropractor was not qualified to testify as to the standard of care for a neurosurgeon performing spinal fusion surgery in a New York medical malpractice case.
The Underlying Facts
In July 2013, defendant Khalid Sethi, a neurosurgeon, and defendant Christian Tvetenstrand, a general surgeon, performed interbody fusion surgery on the plaintiff’s spine to correct her spondylolisthesis, in which her L5 vertebrae was displaced over the S1 vertebrae. In February 2016, the plaintiff filed her New York medical malpractice complaint, alleging that she was born with a genetic physical anomaly known as a twisted or rotated pelvis that had been present throughout her life without causing pain or other complications. The complaint alleged that the defendants acted negligently during the July 2013 surgery by repositioning or derotating her pelvis without her knowledge or consent, causing her to suffer permanent injuries and debilitating pain.
Stephen Macagnone (“Macagnone”), a chiropractor, affirmed that he took X rays of plaintiff’s spine in 2002 and observed that she had a congenitally rotated pelvis. He opined that his comparison of plaintiff’s preoperative films to those taken after her surgery showed “a definite realignment of her pelvis by a few millimeters,” revealing that her pelvis had been derotated during the procedure. He stated that “[a] manipulation under general anesthesia is a chiropractic procedure and not one performed by a neuro or orthopedic surgeon during fusion surgery,” and concluded that “[d]efendants departed from good and accepted medical and chiropractic care by, without consent, derotating [p]laintiff’s pelvis traumatically” rather than treating it through nonsurgical chiropractic procedures.
Following discovery, the defendants moved for summary judgment dismissing the complaint, the motion was granted, and the plaintiff appealed.
New York Appellate Court Opinion
The New York Appellate Court stated: “Plaintiff was required to support her claim that defendants committed medical malpractice by negligently derotating her pelvis as part of the spinal fusion surgery by submitting “[e]xpert analysis . . . to establish whether there was any departure from established standards of care, and whether any such departure was the proximate cause of [her] injury” … Macagnone’s affirmation did not establish the existence of a triable issue of fact as to defendants’ alleged negligence, as he was not qualified to provide expert medical opinion evidence regarding the standards of care applicable to interbody fusion surgery … Macagnone’s license as a chiropractor did not authorize him to perform surgery (see Education Law § 6551 ), and nothing in plaintiff’s submissions established that he had the necessary training, education or experience to render a reliable opinion on the standards of care for the underlying surgery or whether defendants deviated therefrom.”
“Moreover, Macagnone offered no rebuttal to Pollina’s expert opinion that it was impossible to change the orientation of a pelvis along the transverse plane during interbody fusion surgery, nor did he opine as to how the alleged derotation could have occurred as the result of negligence.”
The New York Appellate Court held: “Macagnone was not qualified to offer a reliable expert opinion establishing that the alleged derotation was a reasonably foreseeable risk of the surgery. Thus, plaintiff did not demonstrate the existence of a triable issue of fact barring summary judgment on her informed consent claim arising out of defendants’ alleged negligence … Finally, we reject plaintiff’s claim that she can establish defendants’ negligence under the theory of res ipsa loquitur, as nothing in the record suggests that the issues presented are matters “on which any lay[person] is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care” … Thus, Supreme Court properly granted defendants’ motion for summary judgment dismissing plaintiff’s complaint.”
Source Young v Sethi, 2020 NY Slip Op 06330.
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