Gregory Shapiro (Partner-White Plains, NY) secured summary judgment in a medical malpractice case before the New York State Supreme Court, Kings County, on behalf of Wilson Elser’s clients, a medical center client, an attending obstetrician/gynecologist (OB/GYN), and a medical resident previously dismissed through stipulation. The plaintiff allegedly sustained a nerve injury, causing lower extremity weakness and paresthesia, due to the negligent performance of a hysterectomy. She alleged a failure to position and reposition her properly during surgery, a failure to communicate among providers during surgery, and a failure to prevent nerve injury. The plaintiff also asserted claims relating to the post-operative period, alleging that our client failed to timely diagnose an iatrogenic nerve injury, disregarded complaints and clinical signs and symptoms indicative of nerve injury, failed to prescribe appropriate medications or order necessary diagnostic testing, and failed to obtain appropriate specialist consultations. Further allegations included a lack of informed consent and Res Ipsa Loquitor.

Through the affirmation of an OB/GYN expert, Greg established that the surgery was medically indicated, given the patient’s longstanding adenomyosis and lack of success in controlling bleeding with conservative measures. The expert opined that the straight vaginal hysterectomy was the appropriate procedure and was performed in accordance with the accepted standard of care. Reference was made to both physicians’ deposition testimony detailing the efforts undertaken to properly position the patient before surgery and periodically reposition her legs during surgery to mitigate the risk of nerve injury. Greg argued that nerve injury is a known complication of hysterectomy, a risk that was repeatedly discussed with the patient and to which she provided informed consent.

In opposition, the plaintiff submitted an affirmation from an OB/GYN expert who relied on positioning standards applicable to total laparoscopic hysterectomy, despite the plaintiff having undergone a straight vaginal hysterectomy. In his reply, Greg cited Palagye v. Loulmet, in which the Second Department held that an expert opinion based on an incorrect understanding of the procedure performed is insufficient to raise an issue of fact. The plaintiff also failed to meaningfully address arguments regarding dismissal of the remaining claims.

Granting Wilson Elser’s motion, the judge noted that the plaintiff’s expert improperly assumed a departure based on the absence of documentation reflecting positioning interventions applicable to a different surgical procedure. The court agreed with Wilson Elser’s expert’s testimony that the plaintiff was properly positioned and repositioned throughout the surgery, as supported by the providers’ deposition testimony. Accordingly, the court dismissed the action in its entirety, quashing the plaintiff’s $4 million settlement demand.