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No Medical Expert Testimony Required; Surgical Tool Burn


A man underwent arthroscopic surgery on his injured knee. During the procedure, an orthopedic surgeon placed a hot mallet on the man’s left thigh and abdomen, resulting in burns to those body parts.

 

The man sued the orthopedic surgeon and his practice group for medical malpractice. The man moved for partial summary judgment on the issue of liability. He supported his motion with the medical records and the orthopedic surgeon’s deposition testimony in which he admitted that during the procedure he committed an error by placing a hot mallet on the man’s left thigh and abdomen, resulting in burns to those body parts. The man did not present his own medical expert testimony.

 

In opposition, the orthopedic surgeon submitted an affidavit in which he attempted to explain that, although he had testified during his deposition that he had made an error in laying the mallet down on the man during the surgery, he did not commit malpractice because the ultimate responsibility was on the operating room staff. The orthopedic surgeon acknowledged that the mallet was exceedingly hot and he felt it was warm. The court found the defendants' argument that summary judgment should not have been granted based on the doctrine of res ipsa loquitur was unavailing.

 

The Bronx County Supreme Court granted the man’s motion for partial summary judgment on the issue of liability against the orthopedic surgeon.

 

The Appellate Division of the New York Supreme Court, First Department, modified by also granting partial summary judgment on the issue of liability against the orthopedic surgeon’s practice group, and affirmed. The court held that the trial court did not err in granting partial summary judgment on the issue of liability against the orthopedic surgeon and partial summary judgment on the issue of liability should also be granted against the orthopedic surgeon’s practice group.

 

The trial court did not err in granting partial summary judgment on the issue of liability against the orthopedic surgeon. The man established entitlement to judgment as a matter of law on the issue of liability by relying on the medical records and on the orthopedic surgeon’s deposition testimony. Under the circumstances, the man was not obligated to come forward with an expert opinion to establish his prima facie case. In opposition, the orthopedic surgeon and his practice group failed to raise a triable issue of fact. The orthopedic surgeon acknowledged that the mallet was exceedingly hot and he felt it was warm, and thus, knew, or in the exercise of reasonable care, should have known, not to place the mallet onto the man. The court found that, this was the rare case in which the prima facie proof was so convincing that the inference of negligence was inescapable and unrebutted, so that summary judgment on liability was proper.

 

Partial summary judgment on the issue of liability should also be granted against the orthopedic surgeon’s practice group. Although the trial court’s order only granted partial summary judgment against the orthopedic surgeon, the man also sought the same relief against the orthopedic surgeon’s practice group. All parties on appeal treated the order as having granted relief against both the orthopedic surgeon and his practice group, who both appealed from the trial court’s order. The court reasoned that because summary judgment was properly granted against the orthopedic surgeon, it should likewise be granted against his practice group.

 

The Appellate Division of the New York Supreme Court, First Department, affirmed the trial court’s grant of the man’s motion for partial summary judgment on the issue of liability against the orthopedic surgeon and modified the order to also grant partial summary judgment on the issue of liability against the orthopedic surgeon’s practice group.

 

See: Legakis v. New York Westchester Square Medical Center, 2016 WL 6839346 (N.Y.A.D. 1 Dept., November 22, 2016) (not designated for publication).

 

See also Medical Law Perspectives, July 2014 Report: Injuries Resulting From Laser Procedures: Risks for Physicians, Technicians, and Manufacturers

 

See also Medical Law Perspectives, July 2013 Report: New Hips, New Knees, New Problems: Hip and Knee Replacements 

 

 

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