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Lubin Secures Dismissal of Medical Malpractice Claim on Appeal

March 15, 2012

Rory L. Lubin (Partner-White Plains) secured a unanimous decision from the First Department, affirming the summary dismissal of a medical malpractice claim asserted against Wilson Elser’s clients, an acute rehabilitation hospital and its employee physician. The plaintiffs alleged that the defendants failed to diagnose and treat him for vertebral osteomyelitis while he was admitted to the hospital for multi-disciplinary rehabilitation following a nearly fatal colonoscopy. That surgery led to sepsis, acute respiratory failure and polyneuropathy, leaving him temporarily bedridden and paralyzed for several weeks. The patient also acquired a MRSA infection in the ICU from a dirty catheter tip. Two weeks after his transfer from the rehab facility to sub-acute rehab, it was discovered that the MRSA pathogen had migrated and colonized in the patient's L2 vertebrae, causing bone destruction and architectural instability ultimately requiring a four level lumbar fusion surgery.

At the conclusion of discovery, Wilson Elser moved for summary judgment supported by the affirmations of an infectious disease specialist and a rehabilitation medicine specialist. Testimony by the defense experts refuted all of the plaintiff’s claims related to the medical care provided, and established that the signs and symptoms of vertebral ostemyelitis were not present to make a diagnosis. The defense experts also established that the defendants did not cause the MRSA infection.

The judge of the Bronx Supreme Court agreed. He rejected the plaintiff's expert and dismissed the claims against the firm’s clients in their entirety. The plaintiff appealed the ruling. The First Department unanimously affirmed the lower court’s decision.

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