The New York Supreme Court Appellate Division, Second Department (“New York Appellate Court”), in its decision dated January 13, 2021, reversed the lower court’s granting summary judgment in favor of some of the New York medical malpractice defendants in a case involving gallbladder surgery.
The Underlying Facts
On February 16, 2013, the plaintiff went to defendant North Shore Hospital in Plainview (“Plainview Hospital”) with complaints of vomiting, diarrhea, and epigastric pain. There, the plaintiff was diagnosed with gastritis, and discharged from the hospital.
On August 27, 2013, the plaintiff visited defendant Sanford M. Ratner (“Ratner”) for a physical examination, at which time the plaintiff reported a “painful indigestion type feeling” radiating to his side and back, and reported that the pain “did not happen” while on Prilosec. Ratner attributed the plaintiff’s complaints to gastroesophageal reflux disease.
On September 13, 2013, the plaintiff returned to Ratner’s office with complaints of epigastric pain radiating to his back and sides, and was examined by nonparty Joseph Genovese (“Genovese”). Genovese ordered an abdominal ultrasound, which revealed that the plaintiff had a distended gallbladder with multiple stones indicative of cholecystitis. Genovese then instructed the plaintiff to go to the emergency room, and the plaintiff was admitted that day to defendant North Shore University Hospital (“NSUH”). At NSUH, the plaintiff underwent an open cholecystectomy, which was performed by defendant Robert Dring (“Dring”).
On September 16, 2013, the plaintiff underwent an endoscopic retrograde cholangio-pancreatography (“ERCP”), which was performed by defendant Rajiv Bansal (“Bansal”) to repair a biliary leak with the insertion of an endobiliary stent. On November 20, 2013, Bansal performed another ERCP to remove the stent and found that the biliary leak was repaired.
On March 25, 2014, the plaintiff underwent another ERCP due to complaints of epigastric pain, which was performed by nonparty Anthony Celifarco (“Celifarco”) who found biliary leakage from the cystic duct and a lodged stone in the cystic duct which could not be removed. On May 6, 2014, the plaintiff underwent laparoscopic surgery, which was performed by nonparty Michael Wayne (“Wayne”), who removed the lodged stone, and diagnosed the plaintiff with choledocholithiasis.
The plaintiff filed his New York medical malpractice case to recover damages for medical malpractice, alleging, among other things, that Plainview Hospital deviated from accepted medical practice on February 16, 2013, by failing to diagnose gallstones, and prematurely releasing him before ruling out gallstones as the cause of his complaints; that Ratner deviated from accepted medical practice on August 27, 2013, by failing to diagnose and treat his gallstones; that NSUH and Dring deviated from accepted medical practice on September 13, 2013, by negligently performing the cholecystectomy; that Bansal deviated from accepted medical practice on September 16, 2013, and November 20, 2013, by failing to discover and remove gallstones during the ERCPs performed; and that the departures from accepted medical practice proximately caused the plaintiff to suffer injuries.
The lower court granted the defendants’ motions for summary judgment, and the plaintiff appealed.
New York Appellate Court Decision
The New York Appellate Court stated: “We disagree with the Supreme Court’s determination granting those branches of the North Shore defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against NSUH and Dring. The North Shore defendants established, prima facie, that NSUH and Dring were entitled to judgment as a matter of law by submitting the expert affirmation of Peter Shamamian, which demonstrated that those defendants did not depart from accepted medical practice and that, in any event, any alleged departure was not a proximate cause of the claimed injuries … the plaintiff, through the expert affirmation of Mayer, raised triable issues of fact as to whether NSUH and Dring departed from the applicable standards of care. Mayer opined, inter alia, that Dring and NSUH departed from the standard of care by failing to completely remove the plaintiff’s gallbladder, and by failing to recognize that the plaintiff’s inflammation was too significant to proceed with the cholecystectomy. Mayer opined that, instead of proceeding with the emergency cholecystectomy, NSUH and Dring should have inserted a drainage tube in the gallbladder, treated the plaintiff with antibiotics, and performed a cholecystectomy on a later date when the procedure could be performed “non-emergently and safely.” Mayer’s affirmation also raised a triable issue of fact on the issue of proximate cause. Mayer opined, among other things, that Dring left a gallbladder remnant which required the plaintiff “to undergo major corrective procedures to properly complete the gallbladder removal.””
The New York Appellate Court further stated: “We also disagree with the Supreme Court’s determination granting that branch of the motion of Bansal and Ratner which was for summary judgment dismissing the complaint insofar as asserted against Bansal. Bansal and Ratner established, prima facie, that Bansal was entitled to judgment as a matter of law by submitting the expert affirmation of Schattner demonstrating that he did not depart from accepted medical practice and that, in any event, any alleged departure was not a proximate cause of the claimed injuries. In opposition, the plaintiff’s expert, Mayer, raised triable issues of fact as to whether Bansal departed from the applicable standard of care by failing to diagnose and treat a retained gallbladder/cystic duct remnant with stones during the ERCPs on September 16, 2013, and November 20, 2013. Mayer also raised a triable issue of fact as to whether the alleged departures were a proximate cause of the plaintiff’s alleged injuries. Mayer opined that Bansal’s failure to diagnose and treat a retained gallbladder/cystic duct remnant with stones would have avoided the need for major open corrective surgery, further ERCPs, incisional hernia, jaundice, sepsis, and pain and suffering.”
The New York Appellate Court held: “we agree with the Supreme Court’s determinations granting those branches of the defendants’ separate motions which were for summary judgment dismissing the complaint insofar as asserted against Plainview Hospital and Ratner. The court should have denied those branches of the defendants’ separate motions which were for summary judgment dismissing the complaint insofar as asserted against NSUH, Dring, and Bansal.”
Source Zabary v North Shore Hosp. in Plainview, 2021 NY Slip Op 00205.
If you or a loved one may have been injured as a result of gallbladder surgery in New York or in another U.S. state, you should promptly find a New York medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your gallbladder surgery malpractice claim for you and represent you or your loved one in a cholecystectomy medical malpractice case, if appropriate.
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