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One Surgeon’s Expert Affidavit Sufficient to Establish Second Surgeon Met Care Standard


A man underwent total left knee replacement surgery. The surgery was performed by two orthopedic surgeons. After the surgery the man experienced stiffness and a decrease in flexion. The man underwent physical therapy and a manipulation under anesthesia. His condition failed to improve. A year and eight months after the total left knee replacement surgery, he had to undergo revision surgery.

 

The man sued the two orthopedic surgeons who performed the original knee replacement and their practice group. The complaint alleged that the femoral component of the knee implant selected and installed by the two orthopedic surgeons was too large, and that the use of this oversized component resulted in stiffness and a decrease in flexion after the surgery. The surgeons and their practice group filed motions for summary judgment. In opposition, the man submitted an unsigned and redacted physician's affidavit. The Kings County Supreme Court denied their separate motions for summary judgment.

 

The Appellate Division of the New York Supreme Court, Second Department, reversed. The court held that the evidence submitted with one of the surgeon’s motion for summary judgment demonstrated that the two surgeons installed properly sized components when they performed the total left knee replacement surgery, the first surgeon’s expert affidavit was sufficient to establish that the surgeon who performed the original knee replacement surgery with him did not deviate from good and accepted medical practice, and the unsigned and redacted physician's affidavit which the man submitted in opposition to the motions for summary judgment was insufficient to raise a triable issue of fact.

 

The evidence submitted with one of the surgeon’s motion for summary judgment demonstrated that the two surgeons installed properly sized components when they performed the total left knee replacement surgery. The surgeon’s expert opined that postoperative x-rays of the man’s knee demonstrated that the components were properly aligned and there was no loosening of any components. The surgeon’s expert also opined that x-rays taken about a year and three months after the surgery also showed no misalignment or loosening of the components. The surgeon’s expert stated that, during the revision surgery it was revealed that the formation of postoperative scar tissue had prevented flexion of the knee and contributed to loosening of the tibial component. Additionally, the surgeon’s expert explained that revision surgery report did not indicate that any of the components installed during the original surgery were improperly sized, even though x-rays of the man's knee after the revision surgery showed that larger components were installed during the revision surgery than had been installed during the original surgery.

 

The first surgeon’s expert affidavit was sufficient to establish that the surgeon who performed the original knee replacement surgery with him did not deviate from good and accepted medical practice. Although the other surgeon who performed the original procedure and the practice group did not submit respective expert's affidavits of their own, the attorney affirmation submitted in support of their motion expressly incorporated by reference the affidavit of the first surgeon’s expert, which made specific reference to the other surgeon's care.

 

The unsigned and redacted physician's affidavit that the man submitted in opposition to the motions for summary judgment was insufficient to raise a triable issue of fact. An unsigned and redacted physician's affidavit should not be considered in opposition to a motion for summary judgment where the plaintiff does not offer an explanation for the failure to identify the expert by name and does not tender an unredacted affidavit for in camera review. The court found no evidence on the record that a signed and unredacted physician's affidavit was submitted to the trial court. Thus, the court concluded that the affidavit which was submitted was insufficient to raise a triable issue of fact.

 

The Appellate Division of the New York Supreme Court, Second Department, reversed the trial court’s denial of the surgeons’ and practice group’s motions to dismiss.

 

See: Derrick v. North Star Orthopedics, PLLC, 2014 WL 5011107, 2014 N.Y. Slip Op. 06794 (N.Y.A.D. 2 Dept., October 8, 2014) (not designated for publication).

 

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

 

 

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