Reported Decisions:

Ramos v. Weber, 2014 NY Slip Op 03943 (1st Dept. 2014), [dismissing action against hand surgeon for lack of informed consent in action involving "warning" from medical product manufacturer].

Cintron v. Montefiore Medical Center, 2012 92 A.D.3d 540, 939 N.Y.S.2d 24 (1st Dept. 2012), lv. to appeal denied, 19 N.Y.3d 813, 978 N.E.2d 601 (2012) [unanimously affirming grant of summary judgment to defendant hospital because its experts concluded that plaintiff’s kidney disease was not caused by low doses of medications used to treat rheumatoid arthritis; holding that timely discontinuance of medications ruled them out as potential causes, and that plaintiff failed to raise a triable issue of fact when she submitted an affidavit that contradicted her deposition testimony as to recommendations she was given to undergo a diagnostic renal biopsy, which she refused].

Benjamin v. Teixeira, 78 A.D.3d 434, 911 N.Y.S.2d 36 (1st Dept. 2010) [holding that a plaintiff seeking to restore a case to the trial calendar must make a factual showing including lack of intent to abandon action].

Janeczko v. Russell, 46 A.D.3d 324, 848 N.Y.S.2d 44 (1st Dept. 2007) [holding that failure to diagnose cannot be the basis for a claim of lack of informed consent].

Sha v. Memorial Sloan Kettering Cancer Center, 2000 U.S. Dist. LEXIS 17297 (S.D.N.Y. 2000), affirmed, 2002 U.S. App. LEXIS 4544 (2nd Cir. 2002), cert. denied, 2002 U.S. LEXIS 5885 (2002) [holding that failure to request an accommodation during informed consent counseling precludes federal civil rights claims].

Fernandez v. Safone, 270 A.D.2d 385, 705 N.Y.S.2d 267 (2nd Dep’t 2000) [reversing the trial court, holding that plaintiff failed to  raise a triable issue of fact as to the cause of a gas stove explosion where she testified at deposition that she smelled gas prior to the explosion].

Sinclair v. Cahan, 240 A.D.2d 152, 657 N.Y.S.2d 698 (1st Dep’t 1997) [holding that a series of discrete, routine visits to a surgeon  “keeping an eye” on a breast cyst did not establish continuous treatment for a precancerous condition which would extend the statute of limitations].

Gilmore v. Memorial Sloan Kettering Cancer Center, 1993 N.Y. Misc. LEXIS (New York County 1993) [Granting partial summary judgment dismissing all claims against defendant physicians and hospital for failure to warn about the risk of transfusions, or to offer autologous or directed donations, where the infant plaintiff was infected with HIV from transfusions received in 1983 during surgery and chemotherapy treatments for bone cancer.  The court also dismissed claims for failure to timely diagnose plaintiff’s HIV status, and failure to timely inform plaintiff that she was HIV positive.  The court found issues of fact existed as to only one of plaintiff’s claims, relating to the adequacy of testing of the transfused blood].

Trial Verdicts:

Defense verdict in Supreme Court, Bronx County on behalf of a gastroenterologist who allegedly failed to completely remove a pre-malignant polyp endoscopically.

Defense verdict in Supreme Court, Bronx County on behalf of oral surgeons who allegedly failed to prevent and diagnose a post-extraction infection, leading to emergency surgery and subsequent paresthesia.

Defense verdict in Civil Court, Kings County on behalf of an oral surgeon where the plaintiff developed Ludwig’s angina.

Defense verdict in Supreme Court, Bronx County on behalf of an interventional cardiologist and a hospital, where the plaintiff claimed that the wrongful death of a 46-year old man resulted from failure to diagnose hypertrophic cardiomyopathy (cited by the New York Law Journal as a noteworthy verdict of 2004).

Defense verdict in Supreme Court, New York County on behalf of an oral surgeon, where the plaintiff claimed permanent facial nerve damage due to negligent performance of orthognathic surgery.

Summary Judgment Victories:

• We obtained summary judgment on behalf of a gastroenterologist and hospital where plaintiff alleged that the death of a 31-year-old man from adenocarcinoma of the stomach was due to negligently performed endoscopy.
• We obtained summary judgment on behalf of a Bronx hospital where plaintiff claimed that defendant’s rheumatologists improperly prescribed Methotrexate (a standard treatment for rheumatoid arthritis) and failed to timely diagnose Rapidly Progressive Glomerular Nephritis, leading to renal failure requiring lifetime dialysis treatment. Plaintiff’s motion to renew and/or reargue was denied.
• In a Supreme Court, Kings County case where post-operative anoxia caused severe brain damage, we obtained summary judgment dismissing the complaint against our client, an oral and maxillofacial surgeon who performed orthognathic surgery on the teenage plaintiff to repair a congenital facial malformation.
• We obtained summary judgment on behalf of a Bronx gastroenterologist and hospital. Plaintiff alleged that complications from an unnecessary thoracentesis led to pneumothorax, pneumonia, and permanent lung injury with lifetime oxygen-dependence. We proved that plaintiff’s respiratory problems were more likely the result of his smoking and drug history than of the thoracentesis.
• Relying on experts in pediatrics and pediatric cardiology, we obtained summary judgment on behalf of a Bronx County pediatrician and hospital where plaintiff claimed that her child’s short stature was due to unnecessary administration of steroids to treat asthma, and a two-year delay in the diagnosis of patent ductus arteriosus.
• In a Supreme Court, New York County case against two surgeons and a hospital, we obtained dismissal of the complaint alleging that laparoscopic ventral hernia repair was “ghost surgery” performed by a resident.
• We represented a psychiatric consultant to a Bronx nursing home, who diagnosed the sixty-eight year old decedent’s dementia as sepsis. We obtained dismissal of our client, and the case continued as to the remaining nursing home and City of New York defendants, for alleged failure to timely diagnose fatal C.Difficile septicemia.
• We obtained summary judgment on behalf of a Bronx gastroenterologist where plaintiff claimed that negligent performance of a colonoscopy caused colonic perforation resulting in prolonged hospitalization.
• We obtained dismissal of all eight defendants in a Supreme Court, Bronx County action where a bariatric surgery patient claimed that improper post-operative management led to vitamin deficiency, peripheral neuropathy and bilateral foot drop. We successfully moved for summary judgment on behalf of the named surgeon, psychiatrist, psychologist, and gastroenterologist. Then, we successfully opposed plaintiff’s attempt to restore the case to the trial calendar, and prevailed on appeal in the Appellate Division, First Department.

Voluntary Discontinuances:

• In a Supreme Court, Nassau County case alleging that several physicians over-prescribed pain medication causing the accidental death of a forty-one year old woman, we obtained the voluntary discontinuance of our client, a pain management specialist who prescribed Oxycontin, after party depositions.
• By obtaining preclusion of plaintiff’s pathology expert, we obtained voluntary discontinuance of a wrongful death action against a Bronx urologist and hospital, where plaintiff claimed that negligent treatment of renal carcinoma led to recurrence.
• We obtained voluntary discontinuance of an action alleging negligent treatment of hydrocephalus and aqueductal stenosis in an adult, prior to depositions of our clients, including a Bronx neurologist, neurosurgeon, and hospital.
• In a Supreme Court, Nassau County wrongful death action alleging failure to diagnose 1hemangiopericytoma of the sinus in a thirty-year-old woman, we obtained voluntary discontinuance of an oral surgeon after making no contribution to a multi-party mediated settlement.
• We obtained dismissal of the complaint against a Bronx plastic surgeon alleging that negligent performance of bilateral mastopexy surgery caused permanent severe bilateral breast pain and scars.