Invasive surgical procedures necessarily carry with them risks, including a possibility of permanent injury. Although doctors are required to disclose the risks associated with a procedure under the doctrine of informed consent, New York medical malpractice law holds doctors to a certain standard of care when performing surgeries. Whether this standard was breached was at issue in a recent New York court decision after the plaintiff alleged that a botched spinal surgery worsened her condition and resulted in additional surgeries.
The plaintiff came to her doctor with complaints about chronic lower back and leg pain. After taking X-rays, the plaintiff and her doctor discussed possible surgical options. The plaintiff elected to undergo back surgery to repair the bulging disc in her back. The court record showed that there was no indication that there was anything wrong during the surgery; however, a day after the surgery, the plaintiff had a left foot drop. Her doctor recommended that the plaintiff continue with steroids and physical therapy and did not immediately recommend surgery. The plaintiff continued to experience significant pain going down the left leg and decreased sensation in her left foot. The plaintiff returned to her doctor, and after he re-evaluated the plaintiff, he suggested a further spinal procedure, six days after the first was completed.
The plaintiff’s lawsuit alleged that the defendants, which included her doctor and the hospital, (i) failed to obtain informed consent in advance of the surgery or on the day of surgery; and (ii) committed medical malpractice, based upon the performance of the initial surgery and the timing of the second surgery.
Medical malpractice requires that a plaintiff prove that there was a deviation or departure from accepted practice, and there is evidence that such a departure was a proximate cause of the plaintiff’s injury. To meet their burden of proof in the summary judgment stage, a plaintiff produces expert testimony regarding specific acts of malpractice.
In this case, the plaintiff’s expert, a neurosurgeon with over 40 years of experience, stated that potential manipulation of the psoas muscle was a possible source of the injury to the plaintiff and concluded that the plaintiff’s injury could not have occurred without negligence and malpractice by the surgeon. In addition, the plaintiff’s expert stated that the CT scan taken after the plaintiff’s first surgery showed evidence of damage, such that he would have recommended immediate surgery. The court concluded that the plaintiff had met her burden of proof to defeat summary judgment, based on her expert’s testimony of medical malpractice. The court dismissed her lack of informed consent claim, however. Notably, the court’s decision did not determine whether the defendants were negligent, but the plaintiff’s medical malpractice claims will be allowed to proceed in litigation.
If you have been injured during surgery and want to talk about your legal options with a medical malpractice attorney, do not hesitate to contact our law firm. To speak with a Syracuse surgical malpractice attorney about your case, call DeFrancisco & Falgiatano Personal Injury Lawyers at 315-479-9000 or contact us online.