Case Results

Our firm obtained a reversal of a New York Supreme Court’s denial of our motion for summary judgment on behalf of an Ulster County hospital. The plaintiff had presented to the emergency department complaining of severe nausea and vomiting, while on a course of IV Gentamicin. The patient was stabilized and discharged, with instructions to follow up with her primary care physician and her infectious disease specialists for repeat laboratory testing. As part of its motion for summary judgment, our office submitted an affirmation of an emergency medicine physician, who opined the hospital’s care and treatment comported with the standard of accepted emergency department care. The plaintiffs submitted the affirmations of an emergency medicine physician and an infectious disease physician, in opposition to summary judgment. This office argued on reply that the plaintiffs’ experts’ opinions were vague, conclusory, not supported by the medical records, and improperly sought to expand the duty of an emergency medicine physician. The First Department held, unanimously, that plaintiffs’ experts had failed to raise a triable issue of fact warranting a trial.

Defense Attorney : Ellen A. Fischer, Sholes Miller Rodriguez & Brown, PLLC, PLLC

(Reversal of motion court’s decision, with dismissal of all claims against our client.)

The Second Department has affirmed the granting of summary judgment dismissing an action against a Westchester County surgeon. The plaintiff underwent three surgical procedures performed by the defendant due to complaints of abdominal bloating, pain, and difficulty swallowing related to gastroesophageal reflux disease and a hiatal hernia. The Appellate Division held that in opposition to the defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact. The plaintiff’s expert affirmation was inadmissible as the expert was not licensed in New York State. Furthermore, even if it were admissible, the expert’s affirmation was conclusory and failed to address the specific assertions made by the defense expert. The Appellate Division also affirmed the denial of plaintiff’s motion to reargue and dismissed the appeal from the denial of reargument of the motion. Partner Mary Pat Burke, Esq. made the successful motion, while appellate counsel Ellen A. Fischer, Esq. successfully defended the decision on appeal.

Defense Attorney : Defense Counsel for surgeon’s successful summary judgment: Mary Pat Burke, Sholes Miller Rodriguez & Brown, PLLC. Appellate Counsel for the surgeon: Ellen A. Fischer, Sholes Miller Rodriguez & Brown, PLLC.

In a two-and-a-half-week trial, the plaintiff alleged negligence against a nursing home and its staff in connection with severe injuries and death sustained by his mother, a resident at the nursing home, after she suffered serious and extensive burns while smoking a cigarette in a lounge at the nursing home. Demand: $600,000.

Defense Attorney : For the nursing home: Robert Irving Miller.

The plaintiff claimed that she sustained a dislocated hip, peroneal nerve palsy, foot drop, the amputation of two toes and the inability to live independently as a result of the defendant nursing home’s negligence in caring for her after she had been treated at a non-party hospital for a fractured hip. The defense contended that the nursing home had followed appropriate procedures, the plaintiff was non-compliant with post-fracture protocols, and that the nerve damage occurred not at the nursing home, but in the hospital. The treating orthopedic surgeons had settled before trial. Demand: $200,000. Amount asked of jury: $2.1 million.

Defense Attorney : For the nursing home: Sarah E. Sholes.

The 12-year-old female plaintiff was treated by the defendant in the emergency room following an automobile accident resulting in a “seat belt sign” on her abdomen. After several hours of observation the child was discharged and vomited in the hospital parking lot. Upon her return she was seen by a non-party surgeon who diagnosed intra-abdominal bleeding via a CT scan and three hours later performed the first of two laparotomies to remove two thirds of the small intestine, including the jejunum, and one half of the colon. The plaintiff claimed the defendant should have ordered an abdominal CT scan, while the defense argued that the child was asymptomatic in the emergency department and earlier diagnosis of the abdominal bleed would not have affected the outcome.

Defense Attorney : For the physician: Sarah E. Sholes.

The plaintiff sued two ophthalmologists, alleging negligence in the performance of surgery for cataract removal and placement of an intraocular lens, resulting in postoperative retinal detachment. The surgery had been complicated by a tear of the posterior chamber, need for vitrectomy and placement of a lens in the sulcus. The plaintiff also alleged negligence in postoperative evaluation of visual acuity changes and claimed that there was a delay in diagnosis of retinal detachment. After retinal detachment was diagnosed, the plaintiff was referred for retinal repair surgery, but had a poor outcome and lost functional vision in the affected eye.

Defense Attorney : For ophthalmologist against whom delayed diagnosis was alleged: Robert Irving Miller.

The plaintiff alleged that she fell and sustained a fractured hip and subsequently required two total hip replacements due to the defendant hospital’s negligence in failing to clean a liquid spill from the floor. The defense denied notice of the spill and argued that when wet, the floor was not excessively slippery. Demand: $500,000.

Defense Attorney : For the hospital: Sarah E. Sholes.

(The case settled pursuant to a high-low agreement.)

In a medical malpractice action, the plaintiff pleaded numerous departures by hospital personnel in connection with the post-operative treatment of a patient who allegedly sustained peritonitis and other complications following a laparoscopic cholecystectomy.

Defense Attorney : For the hospital: Robert Irving Miller.

(Directed verdict in favor of the defendant hospital at the conclusion of the plaintiff's case.)

The plaintiff claimed that just prior to cataract surgery by the non-party ophthalmologist the globe of his right eye was perforated by a needle that the defendant anesthesiologist used to deliver local anesthesia, resulting in a macular hole and the loss of central vision in that eye. The defense claimed that the vision loss was secondary to age related macular degeneration, which had been diagnosed in the other eye.

Defense Attorney : For the anesthesiologist: Sarah E. Sholes