White Plains, New York, partner Michael F. Grady and of counsel Siobhainin Funchion obtained a unanimous defense verdict for their obstetrician and medical group clients in a contentious almost month-long trial in Supreme Court, Dutchess County involving claims of a failure to timely diagnose a cerebral sinus venous thrombosis (stroke) in a then 31-year-old pregnant patient resulting in alleged catastrophic physical and cognitive damages. Plaintiff alleged a failure to timely diagnose and loss of chance for a better outcome. The trial involved six experts in the fields of obstetrics, neurology, neuropsychology and a life care planner. At trial, Mike and Siobhan argued the plaintiff’s headache was an acute non-obstetrical complaint that was worked up in two emergency department visits during the time of treatment at issue, that headaches are a commonly known symptom during pregnancy, and that the short-term interval pregnancy did not increase her likelihood of clotting. On the eve of the jury charge, Siobhan was successful in defeating plaintiff’s request for a Noseworthy charge (allowing for a lower burden of proof due to plaintiff’s alleged memory issues). During closing statements, the plaintiff’s attorney painted a sympathetic picture of a young single mother and asked the jury for $25 million. The jury found unanimously for our clients on three departure questions within 40 minutes.

Kristyna Burkova (Associate-New York, NY) and Lori Semlies (Partner-New York, NY) were successful with a motion to dismiss the complaint against our client, New York Presbyterian Queens Hospital (NYPQ), for failure to appear for an independent medical examination (IME). The case involved a premature twin baby who sustained an IV infiltration on her left ankle in the NICU at NYPQ, which was treated in the burn unit at New York Presbyterian – Weill Cornell for one week and remained in the NICU for another month due to issues related to her respiratory function and ability to adequately feed. About two months after the infant’s discharge home, her left ankle wound was noted as a healed scar by her pediatrician and the infant did not appear to have any continued issues, nor did her parents seek additional treatment. When the plaintiff claimed scarring, open wound, deformity, bleeding, swelling, limited range of motion and conscious pain and suffering, Krystina and Lori designated a plastic surgery IME. The plaintiff did not object to the designation and was ordered to undergo the IME in two consecutive compliance conference orders. Despite plaintiff’s repeated failure to appear for the IME (as well as failure to provide other paper discovery), and despite our 11 good faith correspondences, the court gave plaintiff one last chance. Krystina and Lori filed a motion to dismiss the day after the third deadline passed. Hon. Tracy Catapano-Fox of the Queens County Supreme Court granted the motion noting that “[while] dismissal is a drastic remedy, plaintiff’s actions and inactions demonstrate willful and contumacious behavior that warrants dismissal under CPLR §3126.”  

Laura Jordan (Partner-White Plains, NY) and Christopher Hofmann (Associate-White Plains, NY) obtained a Decision and Order from Westchester County Supreme Court granting their motion for summary judgment in favor an orthopedic surgeon and his practice group alleged to have failed to properly perform, supervise, and manage post-operative rehabilitation for a 46-year-old patient following right labrum repair. It was alleged that the premature introduction of certain exercises during physical therapy caused the plaintiff to sustain re-injury to his shoulder requiring further surgery that resulted in residual deficits in strength, range of motion, and functionality. Having performed the initial arthroscopy and labrum repair, our orthopedic surgeon ordered and oversaw the plaintiff’s course of post-operative rehabilitation, which included attending physical therapy at the practice group with co-defendant physical therapist who was employed by the practice group. In granting our motion for summary judgment, the court agreed with Laura and Chris that the plaintiff’s expert affidavit was insufficient to defeat our motion for summary judgment because it was submitted by a physical therapist who did not and could not include in his affidavit that he had personal knowledge of the standard of care in the field of orthopedic surgery. Because the claims against the orthopedic surgeon sounded in medical malpractice, arising from the patient-physician relationship, they argued that the plaintiff’s expert was unqualified to opine as to the applicable standard of care. The court also adopted our argument in reply that since plaintiff’s expert was a physical therapist rather than a medical doctor, he was unqualified to opine within a reasonable degree of medical certainty that any deviation was a proximate cause of the injuries. The court’s Decision also granted co-defendant’s motion for summary judgment, which merely adopted and incorporated by reference the expert submissions and arguments raised by Laura and Chris.

White Plains, New York, partners Lori Semlies and Katherine McCrink and Steven V. DeBraccio (Associate-White Plains, NY)  ) received an affirmance from the First Department, granting our motion for summary judgment, seeking dismissal of claims for gross negligence and punitive damages against our client nursing home. The case involved a resident who, over a three-year time period (and a seven-year admission) sustained approximately 24 falls at our client’s nursing home. The plaintiff sued our client for negligence, the Public Health Law, and, as relevant to the appeal, gross negligence and punitive damages. Lori, Katherine, and Steven moved to dismiss the plaintiff’s claims for gross negligence and punitive damages, arguing that, in light of the myriad of progressively increasing fall protection protocols afforded to decedent, including close supervision and placement at the nursing station, there was no evidence of a willful disregard of the decedent’s rights, any conduct that rose to the level of gross negligence, or, as the First Department put it, “willful conduct that evidences a high degree of moral culpability so as to support a claim for punitive damages.”  The trial court agreed, and on appeal, the First Department affirmed the dismissal.  

Ellen Bowman (Of Counsel-Las Vegas, NV) and James Lovett (Associate-Las Vegas, NV) obtained a dismissal of all of claims against a dental practice and its parent holding company. The plaintiff alleged that he had entered into a contract with staff of the practice for a full replacement of his teeth, but the treatment stopped after his existing teeth were removed. The plaintiff brought multiple contract claims and claims for intentional and negligent infliction of emotional distress against the practice, the holding company, and the dentist that performed the initial procedure. Ellen and James filed a motion to dismiss the plaintiff’s claims against the practice and the holding company, arguing that the claims were properly assessed under NRS 41A, Nevada’s professional negligence statutes, which would have imposed a one-year statute of limitation. After James argued the motion, the court granted the motion in its entirety, finding that the case did sound in professional negligence, and found that the plaintiff did not file the complaint within the statute of limitations, dismissing all claims against Wilson Elser’s clients.

Alan B. Friedberg (Senior Counsel-White Plains, NY) and Nicole Holland (Of Counsel-White Plains, NY) represented a plastic surgeon who had performed an abdominoplasty and abdominal wall reconstruction component separation procedure on the plaintiff in 2013. The plaintiff had lost 100 pounds as the result of gastric bypass surgery resulting in a large abdominal pannus. The plaintiff claimed that the component separation portion of the procedure was contraindicated, and resulted in weakening of her abdominal wall, and excessive scarring that caused both physical deformity and mental anguish. Through cross-examination by Nicole, the plaintiff was forced to admit that the claimed mental anguish resulted in no treatment over the past decade as she was concerned psychological treatment may have jeopardized her employment as a corrections officer. Nonetheless, she testified to significant social and psychological issues due to her mental anguish. Through cross-examination of the plaintiff’s expert, Alan was able to show that while the expert claimed the abdominal wall was weakened and made more susceptible to herniation, and the resulting scarring was excessive, the expert had written a book in 1998 in which he described similar scarring as to be expected from the procedure. The plaintiff’s counsel argued that our client failed to document the basis for the component separation portion of the operation, but Alan and Nicole were able to show that the risk of 40 percent recurrence as brought out by our expert and the use of clinical judgment by our client, were an appropriate basis on which the procedure was performed. The jury rendered a unanimous verdict in an hour.

Kate McCrink (Partner-White Plains, NY) and Robert J. Cristiano (Of-Counsel-Long Island) represented a physical therapist in a negligence action in which an 82-year-old allegedly suffered Stage IV pressure ulcers to the right heel and leg because of the client’s alleged misuse and mismanagement of the patient’s AFO brace and failure to check the patient’s skin. Although a fact-specific case, Kate and Robert’s summary judgment motion was supported by targeted deposition testimony elicited from the resident’s family, and support from our geriatric and physical therapy experts who established that our client properly monitored the patient’s skin and appropriately applied and managed the use of the AFO brace. Plaintiff’s counsel was unable to raise a genuine issue of fact from the record they created, and the court dismissed the case with prejudice.

In a New York State Supreme Court case in Schenectady County, attorneys Lori Semlies (Partner-White Plains, New York) and Kadeem Wolliaston (Associate-Albany) successfully opposed a motion to amend a complaint in a negligence lawsuit against a rehabilitation and nursing center. The plaintiff had initially filed against the center and several defendants listed by first names or as “John Does.” Despite requesting the center’s help to identify these individuals, the plaintiff was informed that no employees matched those names during the relevant period. The plaintiff later sought to amend the complaint to include the full names discovered from the center’s medical chart, which he had possessed since January 2023. The court denied the amendment, siding with our argument that the plaintiff’s delay in identifying the defendants caused prejudice, as the statute of limitations had expired.

Emily Fernandez (Partner-White Plains, NY) and Christopher Peticca (Associate-White Plains, NY) obtained complete dismissal on a motion for summary judgment in Westchester County Supreme Court on behalf of their client hospital and two treating pediatric hospitalists. The plaintiff claimed that we prematurely discharged a jaundiced infant with a direct-to-total bilirubin ratio greater than 15% in violation of the standard of care and the hospital’s policy. Plaintiff demanded $8 million, claiming the alleged departures led to a delayed Kasai procedure, multiple interventional radiology procedures, a liver transplant, developmental delay, and other sequela. Emily and Chris established that the standard of care requires a repeat bilirubin test only when the ratio is greater than 20%, and that the repeat test should not, in any event, be done immediately owing to the pathophysiology of an infant’s liver processes. They argued that the plaintiff failed to refute the standard of care for repeat testing and that plaintiff’s expert affirmation was speculative and therefore insufficient to raise a triable issue of fact. Ultimately, the court found that plaintiff’s expert did not adequately refute that discharging the infant for retesting in an outpatient setting was consistent with the standard of care. The judge also held that plaintiff’s expert failed to opine that the purported failure to perform an in-patient cholestasis work-up and the purported failure to communicate directly with the infant’s pediatrician proximately changed the outcome, so the plaintiff failed to raise a genuine issue of fact as to those claims. The codefendant pediatricians remain in the case, as their motion for summary judgment was denied.

Siobhainin S. Funchion (Of Counsel-White Plains, NY) obtained summary judgment in Westchester Supreme Court in a medical malpractice case against our client urologist and medical group. The plaintiff alleged he was not properly monitored during a urocuff procedure resulting in a syncopal episode where he sustained a head injury with severe lacerations. The plaintiff alleged visual disturbances, post-traumatic headaches and inability to work following the fall. In the motion for summary judgment, Siobhan established that this matter involved claims of medical malpractice rather than general negligence and that our clients appropriately evaluated and monitored the patient. Siobhan, through expert affirmation, established that the patient had a sudden, unexpected vasovagal event that occurred despite appropriate care. In opposition, the plaintiff attempted to raise a new theory of liability of lack of informed consent on the argument that a translator was not provided and therefore the patient could not have consented to the procedure. In response, Siobhan argued that such a claim was not properly pled and, even assuming it had been, the nature of the procedure was diagnostic and not invasive and therefore consent was not required by statute.

Michael F. Grady (Partner-White Plains, NY) and Siobhainin Funchion (Of Counsel-White Plains, NY) obtained a unanimous defense verdict for their client hospital in a contentious four-week trial in the Supreme Court of Orange County. The case involved the death of a 28-year-old woman following an emergent cesarean section, during which the obstetrician cut the right uterine artery. The plaintiff alleged all defendants failed to timely diagnose postpartum hemorrhage and that our client’s nursing staff and codefendant anesthesiologist failed to properly monitor the patient, leading to her developing hypovolemic shock, cardiac arrest and ultimately anoxic injury resulting in the her death 10 days later. In addition to defending the nursing staff, Mike and Siobhan defended the anesthesiologist’s care and treatment to protect our client’s vicarious liability interests. Before jury selection, codefendant obstetrician settled with the plaintiff. At trial, Mike and Siobhan argued that the nursing staff appropriately monitored the patient and that no physician involved indicated they had sufficient information to make a diagnosis and provide treatment. Mike emphasized that while the obstetrician was no longer a defendant, her conduct was “everywhere.” At the close of evidence, Mike and Siobhan argued and were granted a directed verdict against the settling obstetrician, as plaintiff’s experts during trial acknowledged the obstetrician’s negligence was a substantial factor in the patient’s death. During closing statements, plaintiff’s attorney painted a devastating picture of the death of a 28-year-old woman and an autistic son who would never know his mother. Plaintiff’s attorney asked for $25.4 million. The jury found unanimously for our client and codefendant within 30 minutes.

John Shepperd (Partner-Houston, TX) and Kelsi Wade Piatkowski (Of Counsel-Houston, TX) secured a dismissal on behalf of physician clients in Harris County, Texas, 333rd Judicial District Court. The plaintiff, in her early 30s, alleged that our clients failed to timely diagnose a hip fracture that resulted in a total hip replacement and alleged disabilities. Throughout the case, John and Kelsi maintained that our clients met their respective standards of care and that the plaintiff’s injuries were not caused as a result of our their treatment. The court found that the plaintiff did not have the necessary evidence to support her allegations, and the lawsuit was ultimately dismissed.

Robert Goodson (Senior Counsel-Washington, DC), David Finucane (Of Counsel-Baltimore, MD) and Pernell “Perry” Choren (Associate-Washington, DC) obtained a defense verdict in Montgomery County Circuit Court in Maryland on behalf of a local plastic surgeon/wound care physician. Plaintiffs alleged that our client breached the standard of care when he issued a verbal order that included a STAT repeat blood draw and instructions to the in-home nurses to send the patient to her primary care physician or the hospital based on the repeat lab values after receiving notification of her low hemoglobin value. Bert and Perry successfully argued at trial that even though our client was not the ordering physician for the patient’s weekly CBCs, he did not violate the standard of care when he quickly acted to ensure that the patient received the treatment required for her condition. The patient ultimately refused the STAT blood draw and died five days later. After a six-day trial spanning a week and a half and less than an hour of deliberation, the jury of six returned a unanimous verdict finding that our client did not breach the standard of care. The verdict did not require the jury to consider whether the patient had assumed the risk or been contributorily negligent for refusing the STAT blood draw on the day in question, or whether the in-home nursing company had been a superseding cause of the patient’s death.

Martin K. Deniston (Senior Counsel-Los Angeles, CA) and Valeria Granata (Partner-Los Angeles, CA) defended a client attorney against his former client who alleged legal malpractice and fraud in connection the attorney’s representation in the underlying case involving an insurance coverage dispute. After a two-year legal battle with the plaintiff, who refused to attend his videotaped deposition, the San Francisco Superior court granted Valeria and Martin’s motion for an order terminating sanctions, dismissing the case with prejudice.

Jodi Terranova (Partner-Washington, DC), co-chair of Wilson Elser’s Medical Malpractice & Health Care Practice, Callyson Grove (Partner-Washington, DC) and Giovanna Bonafede (Associate-McLean, VA) obtained a unanimous defense verdict in the U.S. District Court for the Eastern District of Virginia in Alexandria on behalf of a general surgeon and his employer, a medical group practice. The plaintiff alleged that our client breached the standard of care in performing a laparoscopic cholecystectomy by failing to perform other surgical techniques when he was unable to identify anatomy, resulting in a transected common hepatic duct. Jodi, Callyson and Giovanna successfully argued that the plaintiff had distorted anatomy at the time of surgery due to inflammation and a rare genetic anomaly, causing the common hepatic duct to be in front of the infundibulum of the gallbladder, making the injury unavoidable. After a five-day trial and ten hours of deliberation, the jury of eight returned a unanimous verdict in favor of our client surgeon and his employer.

White Plains, New York, associates Steven V. DeBraccio and Kathryn M. Lang achieved a pre-answer dismissal for a nursing home in Bronx County Supreme Court, which was affirmed by the First Department. The plaintiff alleged that the decedent died of COVID-19 due to gross negligence, wrongful death and violation of the decedent’s rights under Public Health Law § 2801-d. Kathryn and Steven argued that the plaintiff’s complaint was subject to pre-answer dismissal due to the immunity afforded to nursing homes in the Emergency or Disaster Treatment Protection Act (EDTPA). Kathryn supported the motion with a comprehensive affidavit from the nursing home’s director of nursing, which outlined the numerous pre-COVID-19 and COVID-19-related infection control policies the facility instituted. The Bronx County Supreme Court granted our motion to dismiss. The plaintiff appealed to the First Department, and Steven argued that based on previous appellate division case law and the principles of retroactivity, the statute was only repealed prospectively not retroactively, and the affidavit from the director of nursing established in 14 paragraphs how the nursing home’s response to the COVID-19 pandemic impacted its treatment and care of the decedent. Finally, he argued that the cookie-cutter, boilerplate allegations of gross negligence did not undermine the nursing home’s showing of good faith under the EDTPA. The First Department unanimously agreed with the defense arguments, and the decision granting dismissal was affirmed.

White Plains, New York, partners Michael Grady and Patricia Lacy and of counsel Siobhainin Funchion obtained a unanimous defense verdict for the firm’s neurologist and medical group clients in a contentious 2 ½-week trial in the Supreme Court of Westchester County. Plaintiff alleged that our client neurologist failed to timely diagnose and treat a subdural hematoma in 42-year-old plaintiff who had fallen and hit his head 19 days earlier while rollerblading without a helmet. Plaintiff further alleged that our client neurologist failed to advise the patient to stop taking Advil/ibuprofen, which resulted in worsening of the subdural hematoma. Finally, plaintiff alleged that our client failed to order STAT imaging when the patient returned three weeks later with complaints that his headaches had worsened the week prior, with continued dizziness and a new complaint of difficulty gaging the floor. Our client ordered an MRI of the brain, but not STAT, which revealed a large subdural hematoma with herniation appreciated, which required a craniotomy the following day. Plaintiff alleged that the delay in diagnosis resulted in significant brain damage, including memory loss and behavioral changes. Mike and Siobhan argued that the client’s diagnosis of post-concussion syndrome was appropriate given the mild nature of the initial complaints, normal physical and neurological exams, and plaintiff’s delay in seeking medical care. They further contended that not every head injury requires imaging. As to the second appointment, Mike and Siobhan argued that STAT imaging was not warranted as physical and neurological examinations remained within normal limits. They argued that the brain injury at issue was from the concussion, not the hematoma, and through their expert neurosurgeon established that regardless of when the hematoma was diagnosed it would not have changed the ultimate outcome. Notably, plaintiff sustained a second fall four years after the initial fall during the course of litigation, resulting in a subarachnoid hemorrhage and subdural hematomas causing permanent brain damage rendering plaintiff unable to work and requiring 24-hour care. Due to procedural defects in plaintiff’s attempt to vacate the Note of Issue two years prior to trial, Siobhan successfully argued to preclude any departures or causation issues related to the second fall and sequalae on the verdict sheet and jury charge. The case involved five experts in the fields of radiology, neurosurgery and neurology and three departure questions on the verdict sheet. The plaintiff’s attorney asked the jury to award $4 million. The jury found unanimously for our clients on all three departure questions.

Lori Semlies (Partner-White Plains, NY) and Anna Borea (Associate-White Plains, NY) obtained a unanimous defense verdict in Supreme Court, Westchester County on behalf of an assisted-living facility and its home care agency. The plaintiff alleged that the staff either abused an 87-year-old woman or failed to prevent her fall. A subdural hematoma and subarachnoid hemorrhage and a bruise were identified at the hospital. Lori and Anna presented evidence that the patient’s bleed was a result  of  anticoagulants and the bruise was one that someone, especially someone on coumadin, would receive from simply bumping into furniture. The treating neurosurgeon was called by the plaintiff to testify that he believed the bleed was more likely caused by a fall, yet conceded on cross that he could not rule out an abrupt shaking of the head without trauma, given the fact that the patient had an atrophied brain and was on coumadin. The plaintiff requested $4.4 million from the jury.

Alan Friedberg (Partner-White Plains, NY) and Christopher Peticca (Associate-White Plains, NY) obtained summary judgment dismissing plaintiff’s complaint in its entirety, which included claims of medical malpractice and wrongful death. Two nonparty EMTs responded to a 911 call involving plaintiff’s decedent’s complaints of abdominal pain, nausea, vomiting, and cold sweats and determined that decedent had normal vital signs, treated her with oxygen for comfort per the standard of care for abdominal pain, and timely transported her to the insured hospital where she went into cardiac arrest. She was resuscitated, but suffered brain damage and lived in an extended care facility for approximately 2.5 years until her death. At the pretrial conference, plaintiff’s demand was $5.1 million. Alan and Christopher argued that the insured hospital was not vicariously liable for the nonparty EMTs because the hospital did not employ or dictate the actions of the EMTs, nor did the hospital bill for the services the EMTs rendered. In addition, they argued that plaintiff failed to raise a triable issue of fact with respect to whether the standard of care was followed. Justice Frishman, New York State Supreme Court, Bronx County, granted their motion for summary judgment, holding that plaintiff’s expert was not qualified to render an opinion in this case and that the treatment at issue was consistent with the standard of care.

Joe B. Swart (Partner-New York, NY) successfully defended an attending physician in a Brooklyn nursing and rehabilitation facility who treated the plaintiff’s 78-year-old decedent, who was admitted with a diagnosis of cancer in preparation for two rounds of adjunct chemotherapy. Our client was not present when the lab result showing a highly elevated WBC count was received via facsimile on a Friday evening and he could not be immediately contacted. There was no evidence in the chart reflecting that anyone at the facility reviewed or acted on the lab result until our client returned on Sunday morning, at which time he called an ambulance to transfer the decedent to the hospital, but she coded before arrival. Our client performed CPR, but the decedent expired. At trial, Joe showed that there was a system in place for treatment of patients when the attending physician was away. This included “boots on the ground” coverage by a Nurse Practitioner present at the facility over the weekend, and a “coverage system” whereby a doctor was on-call to the facility 24/7. Unfortunately, these resources failed to back up our client. In his summation, plaintiff’s counsel asked the jury for $900,000 in total damages. After deliberating for just over one hour, the jury returned the verdict, finding “no” to all departure questions.

After a five-day jury trial, John Shepperd (Partner-Houston, TX) and Lina Al-Salim (Associate-Houston, TX) obtained a defense verdict in a medical malpractice lawsuit pending in state district court in El Paso, Texas. The 53-year-old plaintiff was diagnosed with life-threatening blood clots in her lungs. Our client, an interventional cardiologist, placed an inferior vena cava filter to prevent future blood clots from migrating to the patient’s lungs.  Months later, an attempt by another interventional cardiologist to remove the IVC filter was unsuccessful, and the filter remains in the plaintiff today. The plaintiff sued our client, contending the pulmonary emboli could have been treated successfully with oral anticoagulants, and that she was not adequately informed of the potential risks of the IVC filter or of the alternative treatment using simple anticoagulant therapy. Plaintiff also contended our client was negligent for failing to remove the IVC filter 12 days after insertion as mandated by the package insert. John and Lina contended the only alternative to the IVC filter placement was probable death, arguing that a reasonable patient would have agreed to the IVC filter placement regardless of whether informed consent was obtained. In addition, they maintained that timely removal of an IVC filter is gauged by the doctor’s clinical judgment and not the contents of a package insert. Finally, they contended the plaintiff was negligent for failing to timely seek follow-up care. Regarding damages, John and Lina provided evidence that (1) the hospital had written off $280,000 of the $300,000 bill, (2) the plaintiff provided no evidence of the cost of future medical care, (3) the plaintiff’s extensive time away from work was due to numerous medical and personal issues unrelated to her fear that the IVC filter might kill her, and (4) that plaintiff’s ongoing fear is unfounded and irrational. The jury reached a unanimous decision that our client was not negligent. Concerning informed consent, 10 of the jurors believed our client did not provide adequate consent, but all 12 agreed a reasonable patient would have consented to the IVC filter placement.  

Emily L. Fernandez (Partner-White Plains, NY), Alan B. Friedberg (Senior Counsel-White Plains, NY) and Judy Selmeci (Partner-New York, NY) obtained dismissal of a complaint, alleging permanent vision loss, orbit deformity, chronic headaches, impairment in ADLS and other sequela, in the NYS Appellate Division, Second Department, reversing the Westchester Supreme Court’s denial of our motion for summary judgment in a medical malpractice case that was scheduled for trial. The plaintiff, a then 32-year-old woman with four children, sought treatment at a non-party emergency room on 3/10/16, reporting she fainted and hit her face, injuring her right eye and causing facial fracture. A CT scan raised suspicion for entrapment of the rectus muscle from the fracture, but the ER doctor documented extraocular movement intact (EMOI). Plaintiff was referred to our client, a plastic surgeon at our hospital’s plastic surgery clinic. 

1. On 3/15/16, our client determined the plaintiff had EOMI and noted no surgical intervention at that time. Plaintiff was instructed to return in one week. 
2. On 3/22/16, the plaintiff reported doing better with continued but improved limitation of movement on extreme right-eye lateral gaze. Plaintiff was permitted to return to work and instructed to avoid heavy lifting, and instructed to return in one week. 
3. Neither our client nor the clinic has records for the plaintiff after 3/22/16. 
4. On 4/20/16, plaintiff reported new symptoms to her internist, who referred her to an ophthalmologist. 
5. At the 6/8/16 ophthalmology visit, plaintiff was referred to an oculoplastic surgeon, who reviewed the 3/10/16 CT and opined the right medial rectus muscle appeared caught on right medial orbital wall fracture. 
6. On 9/2/16, the plaintiff underwent surgery, which documented a defect in abduction on forced duction testing. A titanium implant and microplate screws were placed. On follow-up on 10/20/16, plaintiff continued to have diplopia and right abduction deficit. 

Our team’s summary judgment motion was denied by Judge Alexandra Murphy, Westchester County Supreme Court, based on an alleged issue of fact raised in the affidavit of plaintiff’s plastic surgery expert, based on the 3/10/16 CT, our client should have known plaintiff would suffer muscle entrapment and that our client abandoned plaintiff. The Second Department, in reversing Judge Murphy and granting summary judgment on all claims, agreed with our argument that plaintiff’s expert’s opinions were conclusory, speculative and unsupported by competent evidence tending to establish proximate causation. 

Larry Lum (Partner-New York, NY), Aviva Stein (Partner-White Plains, NY) and Elizabeth Scoditti (Of Counsel-New York, NY) obtained a favorable damages-only verdict in a premises liability case against  a member hospital of New York's largest health care provider in Richmond County Supreme Court, 13th Judicial District, New York. An earlier summary judgment decision found the client 100 percent liable for the plaintiff’s trip-and-fall accident over an exposed and protruding bolt on the pavement at the hospital entrance. Alleged injuries included three-level disc herniations in the cervical spine requiring anterior fusion surgery at C4-5 and disc replacement at C5-6; torn labrum and arthrodesis/non-union at the acetabulum requiring hip replacement surgery. Plaintiff’s counsel asked the jury to award a total of $3M in pain and suffering damages ($1M past and $2M future); the client elected to hand a jury a blank check less than a week before Christmas and refused to authorize any more than $500,000 to settle – which was never acceptable to the plaintiff. The jury rendered a verdict totaling $300,000 for past pain and suffering and $100,000 in future pain and suffering for the next 30 years of the 50-year-old plaintiff’s life expectancy. There were no claims for medical bills or lost earnings. The jury determination hinged on whether plaintiff was seeking to recover for preexisting issues or whether the need for surgeries to the hip and neck were only prompted by the accident, with the court charging both aggravation and susceptibility to the jury. 

Ellen Bowman (Of Counsel-Las Vegas) and Brandon Verde (Associate-Las Vegas) obtained a dismissal of Plaintiff’s vulnerable abuse and ordinary negligence claims in the Eighth Judicial District Court, Clark County, Nevada, for Wilson Elser's client, a specialty acute care hospital. The plaintiff alleged he developed a sacral pressure wound during a stay at our client's hospital. In addition to alleging professional negligence/medical malpractice concerning the prevention and maintenance of the wound during the hospital stay, the plaintiff brought claims for vulnerable person abuse and ordinary negligence.

Ellen and Brandon filed a motion to dismiss the plaintiff's claim for ordinary negligence, asserting the allegations more reflect a professional negligence and medical malpractice cause of action requiring medical judgment. Additionally, Defendants moved to dismiss the plaintiff's claim for vulnerable person abuse, arguing the facts do not rise to the level of vulnerable person abuse. The Court granted Wilson Elser's motion to dismiss, concurring with Ellen and Brandon's arguments and dismissing both causes of action. 
 

Michael Grady (Partner-White Plains, NY), Siobhainin Funchion (Of Counsel-White Plains, NY) and Patricia Lacy (Of Counsel, Now Partner-White Plains, NY) obtained a unanimous defense verdict on behalf of their urologist and medical group clients in a two-week trial in the Supreme Court of Westchester County, New York. The plaintiff alleged failure to timely diagnose prostate cancer resulting in the need for a radical prostatectomy and radiation with resulting permanent incontinence and impotence. The cancer was clinically Stage I and pathologically Stage IIIC. Mike and Siobhainin argued that their client appropriately monitored the patient’s condition and that no physician could opine within a reasonable degree of medical certainty that an earlier diagnosis would have changed the outcome. The plaintiff, notably, used the expert testimony of a general surgery expert (with a subspecialty in plastic surgery) to establish departures from the standard of care and proximate causation, leading to an interesting and antagonistic cross examination. The plaintiff’s attempts to introduce a loss of chance claim were denied upon Siobhainin’s oral argument in opposition. The plaintiff asked the jury to award a “reasonable seven-figure” verdict. The jury returned a unanimous defense verdict in 55 minutes.

Jodi V. Terranova (Partner-Washington, DC), Robert Goodson (Senior Counsel-Washington, DC), and Justin St. Louis (Associate-Washington, DC) prevailed in the D.C. Court of Appeals, with the court affirming the trial court's rulings denying the plaintiff's motion for judgment notwithstanding the verdict, following a defense verdict Bert obtained for Wilson Elser's client, a gastroenterologist, and his practice. The plaintiff's appeal sought reversal on the grounds that the verdict sheet improperly included the phrase "proximate cause," including a question regarding proximate cause on the informed consent claim, and improperly included questions about contributory negligence. Jodi successfully argued before the three-judge panel, and Justin wrote the appellee brief, assisted by Bert. The case involved allegations of medical malpractice, lack of informed consent, and wrongful death following a colonoscopy for failure ensure the decedent resumed his anticoagulation medication, leading to a deep vein thrombosis, amputation and death. Jodi is the co-chair of Wilson Elser's Medical Malpractice & Health Care Practice.

Mike Belisle (Partner-Portland, OR) obtained a complete defense verdict in a dental malpractice case involving the alleged failure to diagnose squamous cell carcinoma of the tongue. After seven visits to our client’s dental clinic in 2018, including three with our dentist client, the plaintiff, a 38-year-old high school track coach and math teacher with a newborn baby, was diagnosed with Stage 3 tongue cancer in 2020. He then had half his tongue removed, received radiation therapy and was given a poor future prognosis with a low survival rate. The plaintiff claimed he had reported a non-healing lesion on his tongue at every dental visit in 2018, but that his complaints were brushed off, and he was never given a referral to an oral surgeon or for a biopsy. The plaintiff and his wife asserted claims for dental negligence, loss of chance and loss of consortium. After a three-week trial, they asked the jury to award them $25 million in damages. Following roughly five hours of deliberation over two days, the jury returned a unanimous defense verdict.  The jury found no negligence by our dentist client.  They did find negligence by a later hygienist who saw the lesion in 2019, but found no causation, so the plaintiffs’ were awarded $0.

Karen L. Bashor (Partner-Las Vegas, NV) and Kimberly Nelson (Associate-Las Vegas, NV) obtained summary judgment on reconsideration in the District court of Clark County, Nevada on behalf of the firm’s clients – an esthetician/cosmetologist and her LLC. The plaintiff claimed her face was burned, scarred and left disfigured following a non-invasive cosmetic procedure, fibroblast. After filing an answer to plaintiff’s complaint, Karen and Kim filed their motion for summary judgement as a matter of law on the enforceability of a waiver of liability signed by the plaintiff, which waived, released and discharged defendants from all claims for liability, including personal injury arising out of negligence. The waiver included language that the plaintiff recognized side effects may occur. Our motion was denied because the waiver of liability did not include the word “burn” as a possible side effect. As Nevada case law does not require the specification of all plausible injuries for waiver of liability to be enforceable, Karen and Kim filed a motion for reconsideration. Two days prior to mediation, where the demand was near seven figures, the district court judge not only agreed the prior decision was erroneous warranting reconsideration, but granted summary judgment in favor of our clients on all causes of action, agreeing that the plain language of the waiver, warning of redness of the skin, inflammation and irritation, was sufficient to shield defendants from liability and dismiss the entire case.  

Michael Grady (Partner-White Plains), Siobhainin Funchion (Of Counsel-White Plains) and Patti Lacy (Of Counsel-White Plains) obtained a defense verdict on behalf of obstetrician and medical group clients after a three and a half week jury trial conducted in the Supreme Court of Westchester County. The plaintiff alleged a failure to offer and timely perform a cesarean section and that our client obstetrician failed to obtain informed consent for a vacuum-assisted delivery. The plaintiff alleged that as a result of the vacuum use, the infant sustained right-sided brain injury resulting in focal epilepsy, permanent left-sided hemiparesis and significant cognitive delays. Mike and Siobhan argued that the labor was appropriately managed, and at the point where delivery became urgent, a cesarean section was not indicated, concluding that vacuum-assisted delivery was the safest way for the infant to be delivered. They further argued that the child’s damages were not related to a birth injury, but rather were idiopathic epilepsy in nature. The plaintiff’s attorney asked the jury to award $60 million at trial ($28 million in pain and suffering and $32 million in economic damages) after presenting evidence to this effect. The jury unanimously found that the client did not depart from the obstetrical standard of care and that a reasonable person in the plaintiff’s position would not have declined the vacuum-assisted delivery under the circumstances. The trial included testimony from nine expert witnesses.

Heather Austin (Partner-Philadelphia, PA), Josh Bachrach (Partner-Philadelphia, PA) and Parks Stone (Partner-Atlanta, GA) obtained summary judgment in favor of our client carrier in an ERISA lawsuit pending in the U.S. District Court for the Northern District of Georgia. The plaintiff sought disability benefits shortly after she began working for the policyholder. But in the months before her coverage began, she was seen by doctors for fatigue, joint pain and swelling, muscle weakness, nausea, lung issues and stomach issues. A few months after she began working she was diagnosed with scleroderma and then stopped working. While scleroderma was responsible for all of the plaintiff’s symptoms, she argued that the policy’s preexisting conditions limitation did not apply to her claim because a diagnosis was not made until after she stopped working. Citing to an earlier Eleventh Circuit decision in which Wilson Elser represented the defendant, the court reached “the inescapable conclusion” that the client’s decision was reasonable and it was entitled to judgment in its favor. 

Patrick Kearns (Partner-San Diego) and Sarena Kustic (Of Counsel-San Diego) successfully vacated a seven-figure default judgment, and thereafter obtained a dismissal of the complaint with prejudice. The underlying case, filed in 2017, involved a claim against a hospital, a surgeon and Wilson Elser’s client, a national medical air transportation provider. The plaintiff alleged she sustained injuries during surgery that were exacerbated by a delay in medical transport. In 2018, the hospital and surgeon were dismissed at the pleadings stage. By 2021, the plaintiff obtained a default judgment against our client, and nearly a year and a half later the plaintiff served the client with a notice of judgment. Patrick and Sarena moved to vacate the default and default judgment, and quash the false return of service, on the grounds that the plaintiff had served some entity other than the client’s registered agent for service of process in California. On the eve of the opposition’s deadline, the plaintiff stipulated to vacate the default and quash service. Thereafter, Patrick and Sarena moved to dismiss the complaint due to the plaintiff’s failure to effectuate personal service within California’s mandatory period of three years from the date the complaint was filed. The court agreed and dismissed the complaint with prejudice.

Andrew Holland (Of Counsel-Houston) obtained a unanimous defense verdict in Ulster County, New York, Supreme Court for an assisted-living facility after a five-day jury trial. The firm’s client operates an adult care facility with a memory care unit that must be secured to prevent the residents from leaving. The plaintiff’s decedent, a long-time resident, had advanced Alzheimer’s disease but was physically capable and ambulatory. The resident was seated in a chair that had caster wheels on the front feet to assist with mobility, but after he stood up, he fell, and the chair rolled backwards, according to the incident report, and he sustained a hip fracture requiring nail fixation surgery. After his hospitalization for the surgery, the resident was transferred into skilled nursing care, confined to a wheelchair and died six months later. The plaintiff called a Registered Nurse as her liability expert, who claimed that these chairs are dangerous because residents with Alzheimer’s and dementia forget that the wheels are there, creating a safety hazard. We called a mechanical engineer who performed a forensic analysis of an exemplar chair with wheels, as well as one without wheels, and found the slide characteristics and rotational balancing points to be virtually the same. We also called a physician board-certified in internal medicine and specializing in geriatric medicine, who testified that not only are these chairs acceptable under the standard of care, but the wheels are actually a safety feature insofar as they allow residents to move chairs independently while diminishing the risk of the user tipping over or sliding out from the chair. He believed it was more likely that the resident lost his balance or felt lightheaded after rising and fell backward, pushing the chair back. Lastly, we emphasized the fact that not a single witness put forth any evidence that a fall had ever occurred because a chair with mobility-assistance wheels rolled out, as the plaintiff theorized. The jury reached a unanimous defense verdict within 25 minutes of commencing deliberations.

Kathryn Lang (Associate-White Plains) and Katherine McCrink (Partner-White Plains) moved to dismiss a COVID-19 nursing home case pursuant to New York’s Emergency Disaster Treatment Protection Act (EDTPA). The plaintiff’s decedent was admitted to the facility from July 25, 2019 through April 13, 2020, and April 21, 2020 through May 6, 2020; however, the allegations appear to pertain only to the very end of the admission, when the decedent contracted COVID-19 leading to his death. Although the plaintiff alleged gross negligence, the court found plaintiff’s arguments to be unavailing in that they were conclusory, vague and not supported by an affidavit from any individuals with personal knowledge (in opposition) containing factsthat show that our client’s conduct rises to the level of “willful or wanton.” The court also found that the repeal of the COVID-19 immunity statute was notretroactive (based on a Fourth Department case, which is binding as no other appellate departments have issued decisions on the issue), and as such, it was a valid defense given the subject time frame.

Kathryn Lang (Associate-White Plains) and Katherine McCrink (Partner-White Plains) obtained summary judgment and dismissal for a rehabilitation and nursing center, where the resident decedent was admitted for three days and came in with preexisting pressure ulcers. No new wounds developed during the admission and the preexisting wounds did not deteriorate. The plaintiff claimed that the facility failed to provide appropriate wound assessments and wound care; document turning and positioning; adequate nutrition and hydration; and a special mattress. Our expert geriatrician opined that the facility timely assessed the decedent, but he refused a wound consult; the wounds remained stable during the short admission; and turning and positioning documentation was unnecessary, as there was a turning mattress in place. The decedent also was documented as having refused staff members’ attempts to further turn and position him. Co-defendant hospital’s motion for summary judgment was denied.

Michael Grady (Partner-White Plains, NY), Siobhainin Funchion (Of Counsel-White Plains) and Lauren Santucci (Associate-White Plains) obtained a unanimous verdict in Dutchess County Supreme Court on behalf of Wilson Elser’s client, a hospital. The plaintiff, 29 years old at the time, alleges our client and the co-defendant emergency room physician failed to recognize signs and symptoms of compartment syndrome of the left arm following a biceps repair procedure by the co-defendant orthopedic surgeon, leading to a delay in treatment and permanent disability of his arm. The plaintiff also alleges the orthopedic surgeon negligently caused and failed to promptly assess and diagnose the operative complication. Michael and the emergency room physician’s counsel argued that the plaintiff was appropriately examined and evaluated in the emergency department and that his signs and symptoms were consistent with post-operative pain versus compartment syndrome. The plaintiff’s demand at trial was $10 million. The three-week jury trial resulted in a unanimous verdict for our client and the emergency room physician. The jury did, however, render a verdict against the orthopedic surgeon.

Michael Grady (Partner-White Plains, NY), ably assisted by Kierra Greenwood (Associate-White Plains, NY), obtained a unanimous defense verdict in the Supreme Court of Nassau County in 45 minutes against a demand of $2.5 million. Michael and Kierra represented an emergency medicine physician and hospital in a case in which the plaintiff claimed our physician failed to diagnose an ongoing acute stroke and improperly discharged the patient. The patient presented with complaints of right-sided weakness, headache, slurred speech and elevated blood pressure. Our ER physician found an entirely normal exam except for slurred speech, and did a full work-up by obtaining a CT scan without contrast, chest x-ray and EKG, all of which were negative. She further provided aspirin and a statin, and then re-evaluated the patient by which time all the symptoms had resolved, and diagnosed the patient with a TIA (a transient ischemic attack), which presents with stroke-like symptoms but is transient and resolves. The patient was discharged home with instructions to follow up with her primary care provider the next morning. The next day, the patient was brought to another hospital where she was diagnosed with a stroke, resulting in the patient being confined to a wheelchair, with significant speech impairment, and was unable to use her right arm for the remaining five years of her life. Michael and Kierra argued that the ER physician met the emergency medicine standard of care; performed a thorough and proper work-up; correctly diagnosed the patient with a TIA; that strokes often occur following a series of TIAs; and that one cannot prevent a stroke or affect its severity.

Michael Grady (Partner-White Plains, NY) and Siobhainin Funchion (Of Counsel-White Plains, NY) obtained a defense verdict on behalf of their obstetrician and medical group clients after a two-week jury trial conducted in the Supreme Court of Westchester County. The plaintiff alleged failure to recognize and respond to a shoulder dystocia during labor and delivery, resulting in a right brachial plexus/Erb’s palsy injury to the infant, and that the obstetrician used excessive traction during the delivery resulting in the injury. Mike and Siobhainin argued that the labor was uneventful, that the head and shoulders delivered without issue and as such there was no shoulder dystocia that created an obstetrical emergency. The trial included a recent video of the infant-child from her mother’s Facebook page appearing less injured than alleged, and – unknown to plaintiff’s counsel – a past felony fraud conviction of plaintiff’s sole non-party witness. The demand at trial was $2.6 million. The jury returned a defense verdict within two hours.

Michael Grady (Partner-White Plains), with the able assistance of Lauren Santucci (Associate-White Plains), obtained a defense verdict on behalf of our client, a New York acute care hospital, in a nursing/premises liability action before a jury in Supreme Court, Putnam County. The plaintiff, a 28-year-old male, presented to the ambulatory surgery unit for a back procedure. He alleged that negligent nursing care led to an accident, which in turn led to claimed injuries to his back and right shoulder. The plaintiff claimed the shoulder was unresponsive to physical therapy and required surgical rotator cuff repair. He also claimed ongoing pain and permanent loss of shoulder function. The pretrial settlement demand was $675,000. The jury returned a unanimous defense verdict for our client on liability within 30 minutes.

Michael Grady (Partner-White Plains, NY) obtained a defense verdict on behalf of two physician clients (Critical Care and Hospitalist) in a three-week jury trial conducted in the Supreme Court of Westchester County. The case involved a 67-year-old who presented to the Emergency Department vomiting blood, weakness and fullness in her abdomen. She was admitted to the ICU under the care of our client for an upper GI bleed. A GI consult attempted but aborted an endoscopy procedure after five minutes as the volume of blood in the esophagus and stomach obfuscated the source of the bleed. A surgery consult ruled out a surgical option given the patient’s instability and unknown location of the bleed. Interventional radiology then performed an angiogram and embolized two identified sources of bleeding. The patient coded upon return to the ICU. Life support was removed several hours later, approximately 15 hours from her presentation to the Emergency Department. There was no autopsy. At trial, plaintiffs’ counsel argued that consults were not timely obtained, that a central line should have been placed as the four peripheral lines did not provide sufficient resuscitation with fluids and blood products, causing the patient to bleed out. Expert testimony was provided for both sides during the trial. The demand before trial was $2.7 million. The jury returned a unanimous defense verdict for both of our physician clients and the hospital within two hours. Mike was ably assisted by Patricia Lacy (Of-Counsel-White Plains) and Kierra Greenwood (Associate-White Plains).

Michael Grady (Partner-White Plains, NY), assisted by Patricia Lacy (Of-Counsel-White Plains, NY) and Kierra Greenwood (Associate-White Plains, NY), obtained a unanimous jury defense verdict in Supreme Court, Westchester County on behalf of a neurologist. The plaintiff was a 51-year-old woman who came to the firm’s client with a sudden onset of speech difficulty and right upper extremity weakness. After several tests, a 2.5 cm lesion was revealed consistent with a brain tumor according to the consulting neurosurgeon. The second defendant neurosurgeon recommended a biopsy rather than surgery, and during the procedure, the plaintiff suffered a significant hemorrhagic bleed that left her with severe paralysis on the right side and profound neurologic, speech and cognitive impairment, an unfortunate risk that was explained to the plaintiff prior to the biopsy. The biopsy result was consistent with a TDL, a rare presentation of multiple sclerosis, which would have gone away with time. Mike, Patricia and Kierra argued that the doctors’ prioritization of what was thought to be an ominous brain tumor precluded a “wait and see” approach. The demand prior to trial was $6.5 million. After testimony from two defendant physicians and five experts, the jury returned a unanimous defense verdict for both defendants, though the codefendant paid $750,000 in a hi low agreement reached with plaintiff during deliberations.

Karen L. Bashor (Partner-Las Vegas, NV) and Las Vegas associates Elisa Wyatt and Taylor Buono obtained a dismissal without leave to amend in the Eighth Judicial District Court on behalf of a skilled nursing facility. The plaintiff filed a complaint alleging the nursing facility was negligent in the care of the decedent, causing him to develop a bed sore and contract COVID-19. Karen, Elisa and Taylor filed a motion to dismiss, arguing that the plaintiff did not comply with requirements to state a claim for professional negligence in Nevada, or to state a claim for injury related to exposure to COVID-19. The plaintiff argued a skilled nursing facility is not a health care provider under Nevada law. The judge had previously agreed with the plaintiff’s counsel’s argument in an unrelated but identical case, and the issue is currently on appeal. This time, the court disagreed with the plaintiff’s counsel and granted the motion, dismissing the complaint without leave to amend, finding the plaintiff did not comply with Nevada’s pleading requirements.

Judy Selmeci (Partner-New York, NY) successfully defended in New York Supreme Court, Appellate Division the defense verdict obtained by White Plains partners Michael Grady and Lori Semlies. In the underlying matter, the plaintiff alleged that the hospital’s radiology technician violated hospital protocols while administering intravenous contrast. Mike and Lori argued at trial that although the employee administered contrast at a different rate than the hospital’s policy suggested, the technician abided by the guidelines of the American College of Radiology which reflect the standard of care; therefore there was no malpractice. Mike and Lori consulted with the Appellate team frequently during the contentious trial and built record that proved to be a solid foundation of research and arguments for the appeal. The Appellate Division held that the hospital’s policy was merely “some evidence of negligence” and the jury could find, despite violation of the policy, as it did that the defendants did not depart from the standard of care.

Michael Grady (Partner-White Plains, NY) obtained a defense verdict in the first in-person jury trial conducted in Supreme Court, Westchester County since the outset of the COVID-19 pandemic. The case involved a woman who was found to be BRCA-2 positive and opted to undergo a prophylactic bilateral nipple-sparring mastectomy, performed by our client, a breast surgeon. The surgery reduced the plaintiff’s risk of cancer to 3-4 percent and there were no complications. The plaintiff later had a third child and suffered swollen and deformed breasts due to unilateral milk discharge. A second opinion from another breast surgeon initially indicated too much tissue had been left behind, but he later opined that the plaintiff had significant risk reduction of cancer and there was “no absolute need” to  remove additional tissue. Six months later plaintiff elected surgery for larger implants and had additional breast tissue and fat excised. Mike proved to the jury that (1) our client removed as much tissue as physiologically possible, greatly reducing the plaintiff’s risk of breast cancer; (2) the excess tissue was visualized after pregnancy due to the influence of pregnancy and lactation hormones; and (3) the subsequent surgery was not medically necessary and was in whole or in part performed due to the plaintiff’s desire for larger breast implants. After a two-week trial, the jury returned a defense verdict in under 30 minutes.