Summary Judgment Win in Westchester County
Shaub, Ahmuty, Citrin & Spratt is pleased to announce that Associate Attorney Joseph Bias recently secured a summary judgment victory in Westchester County for his clients — a general surgeon and a major hospital — resulting in a complete dismissal of the action.
In this medical malpractice matter, the plaintiff alleged negligent performance of a laparoscopic cholecystectomy. According to the plaintiff, as a result thereof, she sustained injury to the common bile duct resulting in a subsequent bile leak.
Throughout discovery, the plaintiff focused on issues of a lack of informed consent. In moving for summary judgment, Joe argued that the plaintiff failed to make a lack of informed consent claim against the defendants. This was evidenced by the Plaintiff’s Complaint, Bill of Particulars, and Supplemental Bill of Particulars. Despite devoting a considerable amount of time during discovery on this issue, the plaintiff failed to amend her Complaint to include a cause of action for informed consent prior to filing the Note of Issue.
Citing to Second Dependent case law, Joe further argued that the plaintiff was informed of all the appropriate risks of a cholecystectomy within the standard of care, not only by the defendant surgeon, but by preceding physicians she sought additional options from. It was also argued that intraoperative injury is a known and accepted risk of a cholecystectomy and the plaintiff’s bile leak was not a result of any injury to the common bile duct.
Not only did the plaintiff oppose the defendants’ motion, but she also cross-moved to amend her Complaint to assert a lack of informed consent cause of action. With the assistance of Associate Liz Gorman, Joe opposed plaintiff’s cross-motion and argued that the plaintiff’s motion to amend was untimely as discovery had already been completed and plaintiff failed to demonstrate a reasonable excuse for the delay in moving to amend. Moreover, Joe and Liz argued that the plaintiff’s amended complaint failed to clearly show any changes or additions to the complaint as required by CPLR 3025 (b). The Court agreed, denying plaintiff’s motion in its entirety.
Significantly, in opposing defendants’ motion for summary judgment, plaintiff’s expert primarily opined on issues of informed consent. This was highlighted by Joe in his reply affirmation. Again, the Court agreed and held that the plaintiff could not overcome defendants’ prima facie showing of entitlement to summary judgment as there was no claim for a lack of informed consent and their expert failed to rebut the remaining opinions proffered by defendants’ expert.
