Second Department Decides Case Involving Complications After Lap Band Surgery

The New York Supreme Court, Appellate Division, Second Department affirmed in part and reversed in part a trial court order for summary judgment in a medical malpractice case.

The plaintiff underwent lap band surgery in 2002, which led to complications with her pregnancy. In June 2004, after visiting her doctor’s office with complaints of nausea, vomiting, constipation, and pain in the area of the lap band, plaintiff, who was then 19 weeks pregnant, was admitted to the defendant Lutheran Medical Center. Andrade’s symptoms never subsided and a gastrointestinal work-up did not reveal a cause for them. The defendant recommended the insertion of a feeding tube to provide nutritional support to the plaintiff during her pregnancy as the preferred course of action, although doing nothing or removing the lap band also were presented as options. The medical records submitted by the defendants demonstrate that the Plaintiff rejected the feeding tube option and decided to have the lap band removed surgically. Following the lap band removal surgery, the Plaintiff complained of difficulty breathing. Bauer, an anesthesiologist, provided Andrade with supplemental oxygen and an Albuterol treatment. Thereafter, Andrade was intubated, and then transferred to the surgical intensive care unit where she was placed on a ventilator. She never recovered and, on June 28, 2004, almost 20 days after being admitted to LMC, Plaintiff died and her fetus did not survive. Andrade’s diagnoses included adult respiratory distress syndrome, pneumothorax, sepsis, and multi-organ failure. The autopsy report listed her cause of death as complications following the removal of the lap ban.gavel1

The plaintiff’s estate filed a complaint against the hospital and all of the plaintiff’s treating physicians alleging medical malpractice and wrongful death.

All of the defendants filed motions for summary judgment. The trial court granted summary judgment dismissing the complaint for the defendants and denied the plaintiff’s motion for leave to reargue their opposition to the defendant’s motions pursuant to CPLR 2221.

In order to establish a claim for medical malpractice, the plaintiff must demonstrate departure from accepted medical practices and evidence that the departure was the proximate cause of the plaintiff’s injury.

On a motion for summary judgment, the defendant has the burden of demonstrating that they did in fact follow accepted medical procedures and practices, and/or demonstrating that the plaintiff’s injury did not occur due to a departure from accepted medical practices. If the defendant is successful in demonstrating that they did follow accepted medical procedures and/or that the plaintiff’s injury did not occur due to a departure from accepted medical practices then the plaintiff must submit evidence that show that triable issues of fact still exist.

The Second Department held that the trial court should have denied the Defendants’ motion for summary judgment, dismissing the complaint, because the hospital and one of the defendant physicians failed to establish their entitlement to judgment as a matter of law.

The Supreme Court, Appellate Division further held that the Supreme Court properly granted the motion of the defendants (plaintiff’s first and second treating physicians) for summary judgment thus dismissing the complaint. The Court found that the defendants each established that their actions conformed to accepted standards of medical practice in their treatment of the plaintiff. The Court further found that the defendants’ actions during the Plaintiff’s treatment were not the proximate cause of the Plaintiff’s respiratory issues or death.

The Court found that the plaintiff was unable to raise triable issues of fact and stated that broad accusations of medical malpractice, which are purely speculative and unsubstantiated by evidence, are insufficient to defeat a defendant physician’s motion for summary judgment.

Macias v. Ferzli, 131 A.D.3d 673, 677, 15 N.Y.S.3d 466 (N.Y. App. Div. 2015).

Contact Information