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Summary Judgment Granted in Medical Malpractice Case

A woman suing a doctor, a physician’s assistant (“PA”), and a surgical center for malpractice, as a result of receiving an operation on the wrong knee, is entitled to partial summary judgment on the issue of liability, according to a Bronx judge.

Following an automobile accident, the plaintiff sought treatment from Dr. Hostin, an orthopedic surgeon, for a torn meniscus and a partial ACL tear in her right knee. Prior to the surgery, the doctor initialed the plaintiff’s right knee and then left to care for another patient who’s surgery was scheduled just prior to the plaintiff’s. When the plaintiff awoke from anesthesia, she realized that the surgery had been performed on her left knee, instead of the intended right one.

According to court papers, Dr. Hostin, after finishing the other patient’s surgery, entered the operating area and saw that surgery had already been started by his PA. A camera had been previously inserted under the plaintiff’s kneecap and the doctor saw a torn meniscus in the live video, so he decided to direct the PA on how to complete the procedure. Dr. Hostin did not realize the mistake until after completion of the wrong-site surgery.

In a rare occurrence, plaintiff’s counsel made a summary judgment motion, asking the Court to find defendants negligent as a matter of law, based on the doctrine of res ipsa loquitur. Res ipsa loquitur is a Latin phrase which means that the thing (the negligence) speaks for itself. In essence, if an injury occurs that could not have happened without negligence, and the instrumentality causing the injury is in the exclusive control of the defendant, a fact finder may infer that the defendant was liable.

Plaintiff’s motion asked the judge to find that: (1) surgery to the wrong knee does not occur in the absence of negligence/malpractice; (2) surgery on the wrong knee was caused by, and solely due to, defendants while plaintiff was under their control; and (3) plaintiff, who was anesthetized, played no part in the error. According to the judge, it was negligent for the PA to prepare the plaintiff for surgery and operate on the wrong leg after the doctor had marked the correct one, it was negligent for the surgical center to inaccurately document the incorrect knee to be operated on; and for the doctor to argue that his care and treatment conformed to the standard of care, when he failed to identify the surgical site himself after entering the operating room, is “ludicrous.”

The trial attorneys at Bottar Law, PLLC have been successful in investigating, prosecuting, and trying to verdict all types of medical malpractice cases, including surgical errors. If you or a loved one have suffered as a result of medical malpractice or other medical related personal injury, contact the law office of Bottar Law, PLLC today.

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