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Woman Contracts Hepatitis C During Colonoscopy from Previous Patient


A woman contracted the hepatitis C virus during a colonoscopy performed under anesthesia by a gastroenterologist. An investigation performed by the New York City Department of Health (NYCDOH) discovered that the patient upon whom the gastroenterologist performed a colonoscopy immediately before the woman on the same day was a known hepatitis C patient. It was undisputed that prior to the colonoscopy, the woman showed no signs of being infected with the hepatitis C virus. The woman was diagnosed with hepatitis C approximately six weeks after the colonoscopy, which is the typical incubation period for hepatitis C.

 

The woman sued the gastroenterologist, his practice group, and the gastroenterology facility for medical malpractice.

 

The gastroenterologist, his practice group, and gastroenterology facility moved for (1) summary judgment, (2) to preclude the woman from offering evidence from a certain witness and a certain NYCDOH report and findings, and (3) a Frye hearing to determine whether the method by which evidence was obtained was generally accepted by experts in the field. The gastroenterologist and his practice group established prima facie their entitlement to judgment as a matter of law with evidence that they did not depart from the accepted standard of care. In opposition, the woman relied on the doctrine of res ipsa loquitur.

 

The Kings County Supreme Court awarded the gastroenterology facility summary judgment and denied the gastroenterologist and his practice group’s motions.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed the trial court’s denial of the gastroenterologist and his practice group’s motion for summary judgment and motion to preclude the woman from offering the testimony of a certain witness and the NYCDOH report and findings and dismissed the appeal of the trial court’s denial of the gastroenterologist and his practice group’s motion for a Frye hearing. The court held that the trial court properly denied the gastroenterologist and his practice group’s motion for summary judgment, the trial court properly denied the gastroenterologist and his practice group’s motion to preclude the woman from offering the testimony of a certain witness and the NYCDOH report and findings, and the trial court’s denial of the gastroenterologist and his practice group’s motion for a Frye hearing was not appealable.

 

The trial court properly denied the gastroenterologist and his practice group’s motion for summary judgment. The court found that the woman raised a triable issue of fact with respect to whether, under the doctrine of res ipsa loquitur, the gastroenterologist and his practice group’s negligence proximately caused her contraction of hepatitis C. The woman, through her expert’s affirmation, demonstrated that the transmission of hepatitis C from one patient to another does not occur in the absence of negligence, as the hepatitis C virus is a blood-borne pathogen that can only be transmitted when the blood of one patient is put into the body of the other, and that the injured woman did not contribute to the transmission, as she was under anesthesia at the time of the procedure. There was no dispute that the gastroenterologist and his practice group were in control of the instrumentality of the transmission of infection from another patient, who had undergone the procedure immediately before the woman. The court found that, contrary to the gastroenterologist and his practice group’s contention, the woman’s allegations, if established, could provide a basis for an award of punitive damages.

 

The trial court properly denied the gastroenterologist and his practice group’s motion to preclude the woman from offering the testimony of a certain witness and the NYCDOH report and findings. The court found that, contrary to the gastroenterologist and his practice group’s contention, the trial court properly relied upon the NYCDOH report and findings in ruling on their motions.

 

The trial court’s denial of the gastroenterologist and his practice group’s motion for a Frye hearing was not appealable. No appeal lies from an evidentiary ruling made in advance of trial. Such a rule would, at best constitute an advisory opinion.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed the trial court’s denial of the gastroenterologist and his practice group’s motion for summary judgment and motion to preclude the woman from offering the testimony of a certain witness and the NYCDOH report and findings and dismissed the appeal of the trial court’s denial of the gastroenterologist and his practice group’s motion for a Frye hearing.

 

See: Gonzalez v. Arya, 2016 WL 3265746(N.Y.A.D. 2 Dept., June 15, 2016) (not designated for publication).

 

See also Medical Law Perspectives, June 2016 Report: How Risky Is Going to the Hospital? The Dangers and Liabilities of Healthcare-Associated Infections

 

See also Medical Law Perspectives October 2015 Report: Unclean, Unsterile, Unsafe: Risks of Injury from Unsterilized Medical Equipment

 

See also Medical Law Perspectives, September 2014 Report: Hepatitis: Provider Malpractice and Patient Injury 

 

 

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