Second Department Upholds SACS Defense Verdict In Medical Malpractice Action Alleging Negligent Lung Puncture During Cortisone Injection

The Appellate Division, Second Department in August unanimously upheld a defense verdict in a medical malpractice action obtained by senior trial partner Marc J. Citrin. Plaintiff claimed that she suffered a collapsed lung after the defendant orthopedic surgeon performed a cortisone steroid injection under ultrasound guidance. The jury found that the defendant physician did not depart from good and accepted medical practice and plaintiff appealed, asserting that the trial court erred in precluding her from introducing a rebuttal witness and permitting defendants’ medical expert to testify despite a purportedly inadequate expert disclosure. In particular, plaintiff contended that defendants never disclosed that their expert would testify about whether the needle was depicted on the ultrasound and that the injuries may have been caused by a spontaneous pneumothorax.

In opposition to plaintiff’s appeal, defendants successfully argued that a new trial was not warranted because the trial court correctly found that defendants timely and properly disclosed their expert’s anticipated testimony in a CPLR 3101(d)(1)(i) exchange and that he would rely on the radiology films as a predicate for his expert medical opinions. The Second Department also found that the trial court properly exercised its discretion in denying plaintiff’s request for a rebuttal witness. Plaintiff’s trial counsel made multiple references to the ultrasound in his opening statement, questioned his expert extensively about the imaging, and presented blown-up images with graphic overlays to further illustrate the purported placement of the needle. Since plaintiff’s counsel chose to introduce into evidence the ultrasound image at issue in his case-in-chief, the defense witnesses’ counter-testimony about the needle placement did not constitute a “new” defense theory warranting a rebuttal expert in radiology. Thus, plaintiff’s application for a rebuttal witness was properly denied and the appellate Court affirmed the judgment.

The appeal was drafted by Nicholas Tam and Chris Simone, with Nick handling the oral argument in Brooklyn.

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