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Pre-Trial Results

August 2021

Supreme Court, Queens County grants summary judgment to a vascular surgeon alleged to have caused leg amputation

Gerspach Sikoscow obtained a pre-trial dismissal of all claims against a vascular surgeon who was alleged to have negligently performed lower extremity angioplasty procedures, failed to appreciate signs of vascular compromise, and failed to arrange for a covering physician while he was away at a professional medical conference. It was alleged that these departures resulted in limb ischemia and a below the knee amputation. GS LLP, through competent expert testimony, successfully established that the angioplasty procedures were performed appropriately, and that the patient's signs and symptoms did not warrant concern for limb-threatening ischemia. We also argued that when the patient complained of worsening leg pain, the vascular surgeon appropriately referred the patient to a hospital where an "on call" vascular surgeon was available. The Court agreed with all of the arguments advanced, holding that the vascular surgeon's care was appropriate, and that plaintiffs' expert's arguments to the contrary were speculative.

March 2021

Supreme Court, New York County grants summary judgment to an internist who allegedly failed to prevent deterioration of pressure ulcers and a fatal wound infection

Gerspach Sikoscow obtained summary judgment and a complete dismissal of the claims pending against its client, a board-certified internist, in Supreme Court, New York County. The case involved allegations that our client failed to adequately treat and prevent the progression of decubitus ulcers in a 72-year-old male with a number of serious medical co-morbidities, including severe peripheral vascular disease with ischemic gangrene of toes and heels, diabetes, and end-stage renal disease necessitating hemodialysis. Our client performed weekly skin assessments while the decedent was admitted to a co-defendant nursing and rehabilitation center. In our motion, we argued that during the period of time that our client was involved in the decedent's care, appropriate pressure ulcer prevention measures were in place, including turning and positioning protocols, nutritional supplementation, pressure-relieving devices, and appropriate local wound care. We argued that, according to our client's skin care assessment notes, the decubitus ulcers were stable in size/appearance and appeared uninfected; and thus, there was no indication for ordering a wound care consult, starting antibiotics, or recommending surgical debridement of the wounds. We further argued that due to the decedent's serious medical comorbidities which included poor circulation and severe immunocompromise, it was inevitable that the ulcers would eventually worsen notwithstanding optimized medical interventions. Supreme Court, New York County determined that plaintiff's expert affirmation was insufficient to withstand our client's showing of entitlement to judgment as a matter of law. The Court noted plaintiff's expert improperly argued that the care rendered by our client was inadequate simply because the decedent's ulcers deteriorated after he was transferred to an outside hospital. The Court also concluded that plaintiff's expert failed to address the opinions posited by our expert relating to proximate causation and the decedent's underlying medical co-morbidities.

February 2021

Appellate Division, Second Department Affirms Grant of Summary Judgment to Paramedics

In December 2018, Supreme Court, Richmond Country granted Gerspach Sikoscow's motion for summary judgment on behalf of its clients, emergency medical technicians employed by a local hospital. Plaintiffs alleged that our clients rendered negligent emergency medical services when responding to a child who was suffering a severe asthma attack. Plaintiffs' expert contended that our clients failed to adhere to certain pediatric life support guidelines which require that chest compressions be performed on pediatric patients when heartrate falls below a certain threshold. In support of our motion, our expert opined that it was appropriate for the paramedics to attempt to intubate the child instead of performing chest compressions in order to address her primary issue, which was prolonged hypoxia. Moreover, our expert opined that performing chest compressions in order to restore a pulse would not have changed the outcome or prevented the child's cardiac arrest; the autopsy findings included severe mucous plugging, pulmonary edema, and inelasticity of the lungs, all of which would have precluded survival and made CPR irrelevant. On appeal, the Second Department affirmed the lower court's decision, finding that plaintiff's expert affirmations were conclusory, speculative, and failed to address the contentions made by the defense expert with regard to survivability and proximate causation.

February 2021

Gerspach Sikoscow obtains discontinuance in action involving tourniquet-related femoral nerve palsy

In November 2020, Gerspach Sikoscow filed a summary judgment motion on behalf of its client, an orthopedic surgeon, in Richmond County Supreme Court. The 61-year-old plaintiff claimed that she developed femoral neuropathy secondary to a tourniquet that was placed by our client during a total knee replacement surgery. Plaintiff originally claimed that the tourniquet was inflated to an excessive pressure and applied for an excessive period of time, but after discovery, was permitted to amend her pleadings to add the theories that the tourniquet was under-pressurized and that an improper cuff size was used. In support of our summary judgment motion, we submitted the affidavit of a board-certified orthopedic surgeon who opined that the tourniquet pressure used during the subject surgery, 325 mmHg, and the total tourniquet time, 61 minutes, were well within accepted parameters; that tourniquet-related nerve injury is rare, but can and does occur even when tourniquet pressure and total tourniquet time are within the safe range; that there are no studies or case reports linking nerve injury to under-pressurized tourniquet cuffs; and that the cuff width used in this case was standard and appropriate. On the day prior to a scheduled oral argument of our motion, plaintiff's counsel submitted a stipulation discontinuing all claims against our client.

October 2020

Dismissal of Wrongful Death Action Based Upon Seldom Utilized Doctrines of Election of Remedies and Judicial Estoppel

In a lawsuit brought by the wife of a deceased nursing home resident alleging that medical malpractice caused him to fall, suffer head injuries, and die, it was discovered that the decedent' wife had filed a separate lawsuit against her husband's life insurance provider alleging breach of contract for its failure to pay a death benefit. Upon further investigation, it was discovered that in that lawsuit, the decedent's wife maintained that her husband's fall was secondary to "an accident," and that the decedent's life insurance policy contained an exclusion for death secondary to medical malpractice. During the pendency of the medical malpractice lawsuit, the life insurance breach of contract suit was settled.

GS LLP moved to dismiss the medical malpractice and wrongful death lawsuit against its client, an internist at the nursing home, arguing that the doctrines of Election of Remedies and Judicial Estoppel precluded the decedent's wife and estate from recovering for the decedent's death under a medical malpractice theory since they had already recovered for it based upon an inconsistent theory. They argued that plaintiffs should not be entitled to two recoveries for the same death under different, inconsistent positions. The Court agreed, and all claims were dismissed.

April 2019

Summary Judgment Granted to Pain Management Specialist in Spinal Osteomyelitis Case

GS LLP obtained summary judgment and dismissal on behalf of its client, a board-certified pain management specialist, in a case involving an alleged failure to diagnose spinal osteomyelitis in a female presenting with severe back pain and a known lumbar disc herniation. Although plaintiff's expert claimed that our client should have referred the patient for an infectious diseases workup, blood work, and bone scan based upon an MRI finding of marrow signal abnormality within the lumbar spine, Supreme Court, Richmond County was persuaded by our legal arguments pertaining to a physician's duty of care. Citing to pertinent case law, we established that our client had a right to rely upon the MRI report of the interpreting radiologist, who recommended a repeat MRI in two months to further assess the marrow signal abnormality. We also established that a physician's duty of care is limited to those functions undertaken by the physician and relied upon by the patient; in that regard, we argued the plaintiff was referred to our client for a specific purpose—the administration of steroid injections to treat the pain associated with her herniated disc. The Court agreed that our client did not breach his duty of care towards the plaintiff and dismissed all claims against him.

March 2019

Apellate Division, Second Department Affirms Dismissal of Claims Against Orthopedic Surgeon

In 2014, Supreme Court, Richmond County dismissed the Complaint in an action in which it was claimed that our client, an orthopedic surgeon, negligently performed a right MTP fusion. Plaintiff's attorney had failed to provide court-ordered discovery, failed to attend court appearances, and defaulted on our client's motion to compel, culminating in the dismissal of the Complaint with prejudice in July of 2014. Two years later, plaintiff retained new counsel, filed a motion to vacate the dismissal, and when her motion was denied, took appeal. In her appellate brief, she noted that her prior attorney had been indicted for embezzlement in late 2014, a fact of which she did not become aware until 2016. She contended that she should not be punished for her lawyer's criminal conduct which led to his neglect of her case. In response, we argued that plaintiff had failed to take reasonable steps to ascertain the status of her case, especially in light of the prolonged stretches of time in which she had no communication with her former attorney. We also cited to a line of cases which establish that an attorney's conduct is properly imputed to the client. The Appellate Division, Second Department ruled in favor of our client, affirming the lower court's order and awarding costs associated with the appeal.

March 2019

Supreme Court Grants Summary Judgment in Favor of Defendant OB/GYN Practice

GS LLP obtained summary judgment on behalf of its client, an OB/GYN practice, in a lawsuit alleging a negligent failure to diagnose breast cancer. It was alleged that the defendant negligently failed to inform the plaintiff that a mammogram was of questionable malignancy. In support of the motion, we submitted expert affirmations in OB/GYN and oncology establishing that the care was appropriate, and that any alleged delay in diagnosis was insignificant with respect to prognosis. GS LLP successfully persuaded the Court that plaintiff's expert affirmation in opposition failed to establish with sufficient particularity that the alleged delay significantly decreased the plaintiff's chance for cure, and all claims against our client were dismissed.

February 2019

Supreme Court Grants Summary Judgment in Favor of Defendant Hospital in Wrongful Death Case

GS LLP obtained summary judgment on behalf of its client, a New York City Hospital, in a case concerning the alleged wrongful death of an eight-year-old girl secondary to asthma. Plaintiff alleged that the hospital-employed paramedics negligently failed to commence CPR and failed to intubate the decedent in the field, resulting in her death. Supported by an expert affirmation by a critical care specialist, GS LLP established that the paramedics rendered appropriate care. Citing the autopsy report and events that transpired in the Emergency Department, the expert also established that the decedent suffered from a rare and deadly form of asthma called brittle asthma, which would have caused her death even if the she received earlier CPR and intubation. Although plaintiff opposed the motion with a physician affirmation claiming that the paramedics rendered inadequate care, the expert did not address our argument that the decedent's life could not have been saved because of the nature of her disease. The Court agreed, and dismissed all claims advanced against our client.

October 2016

Internist Wins Summary Judgment in Case Involving an Alleged Failure to Diagnose and Treat Type 2 Diabetes

Gerspach Sikoscow obtained summary judgment and dismissal on behalf of a primary care physician who was alleged to have negligently failed to diagnose and treat diabetes mellitus in an elderly patient. The plaintiff claimed that as a result of alleged malpractice, she was required to undergo an above-the-knee right leg amputation. Plaintiff alleged that the defendant physician failed to appreciate elevated hemoglobin A1C and blood glucose levels on her blood labs, which demonstrated that she was a "high-risk" diabetic; failed to refer her for endocrinology and vascular surgery consultations; and failed to counsel her with regard to necessary lifestyle changes. In the summary judgment motion, the defense argued that this patient was never definitively diagnosed with diabetes, and that plaintiff's expert was conflating discrete, isolated lab values with "diabetes," a diagnosis which requires serial blood work. The defense further noted that a definitive diagnosis could not be made due to the patient's noncompliance. Lastly, the defense noted that during the period of alleged negligence, the plaintiff had multiple hospitalizations during which she was seen by multiple endocrinologists—none of whom diagnosed her as being diabetic. After oral argument in Supreme Court, Kings County, the Court granted defendant's motion in its entirety, finding that plaintiff's expert affirmation was conclusory, failed to address key contentions raised in defendant's moving papers, and was insufficient to establish a triable issue of material fact.

October 2016

Summary Judgment Granted to Neurosurgeon in Brain Surgery Case

Gerspach Sikoscow obtained summary judgment and dismissal on behalf of a board-certified neurosurgeon who performed a surgical resection of a left cerebellar cavernous hemangioma (a benign capillary tumor-like lesion). The plaintiff alleged that the surgery was unnecessary and improperly performed, and that there was a negligent failure to timely diagnose and appropriately treat post-operative cerebrospinal leak and bacterial meningitis. In support of their motion, defendants submitted an expert affirmation by a board-certified neurosurgeon who opined that the surgery was indicated and properly performed; that dural leaks such as the plaintiff experienced are unavoidable and occur even in the best of hands; that the patient exhibited no signs or symptoms of infection until her re-admission to the hospital sixteen days post-operatively; and that once re-admitted, she was given appropriate antibiotic therapy and seen by appropriate specialists. During the pendency of the motion, plaintiff's counsel advised his expert was unable to refute the defense's arguments and the motion was granted without opposition.

February 2016

Second Department Reverses Trial Court and Grants Summary Judgment

GS LLP successfully appealed the Supreme Court's denial of summary judgment, and obtained summary judgment for its neurologist client after oral argument in the Appellate Division, Second Department. Plaintiffs alleged that a 28 year-old, married woman unnecessarily died from a pulmonary embolus due the defendant-neurologist's failure to diagnose a left calf DVT. The evidence adduced during discovery established that approximately one month after a lumbar puncture the patient called the defendant-neurologist and complained of generalized leg pain. It was alleged that the defendant-neurologist was negligent in failing to have the patient present to the office for a physical examination, and in prescribing pain medication over the phone. The patient died two days after calling the defendant.

Mr. Sikoscow successfully argued on appeal that summary judgment was improperly denied given the insufficiency of plaintiff expert's affirmation in opposition to the summary judgment motion. Specifically, since the patient's complaints were limited to generalized leg pain, there was insufficient evidence for plaintiff's expert to have concluded that the defendant-neurologist would have suspected a left calf DVT even had he examined the patient. Mr. Sikoscow also successfully argued that plaintiff's expert lacked the requisite knowledge concerning the standard of care governing neurologists.

May 2015

Summary Judgment Obtained for Orthopedic Surgeon Regarding Foot Drop and Contracturection

GS LLP successfully obtained summary judgment for its orthopedic surgeon client. Plaintiff had alleged that he suffered a foot drop and muscle contracture as a result of an open reduction and internal fixation of the tibia and fibula performed by our client. We successfully argued that plaintiff's injuries were due to the initial trauma plaintiff sustained when he was struck by a car and not the surgery in question. In opposition, plaintiff was unable to raise a triable issue of fact.

January 2015

Summary Judgment Granted to Orthopedic Surgeon on Statute of Limitations Grounds

Grspach Sikoscow obtained summary judgment and dismissal on behalf of an orthopedic surgeon, who allegedly left a k-wire within the plaintiff's left shoulder during a laparoscopic labral repair in 2004. Plaintiff, who commenced her lawsuit in 2011, admitted that she had learned of the presence of a metallic object within her left shoulder after undergoing a chest x-ray in 2009. Defendant moved for dismissal of the claims as time-barred, contending that plaintiff failed to timely commence her action within one year of discovery of the foreign body. In opposition, plaintiff argued that defendant should be estopped from raising a statute of limitations defense by virtue of his fraudulent concealment of his own malpractice. Furthermore, plaintiff contended that her cause of action did not accrue until April 2010, at which point she consulted another orthopedist and was led to believe that the metallic object visible on her 2009 x-ray was related to defendant's surgery. In this regard, plaintiff posited that it is not merely discovery of the foreign body, but discovery of the foreign body coupled with a basis for believing that it was left behind as a result of malpractice, that begins to toll the one-year limitations period. J. Stanley Green, Supreme Court, Bronx Co., rejected plaintiff's arguments and granted defendant's motion in its entirety.

September 2013

Discontinuance Obtained in Wrongful Death Action

Gerspach Sikoscow obtained a discontinuance on behalf of a family medicine practitioner who was alleged to have negligently prescribed an antidepressant medication to the plaintiff’s decedent. Plaintiff claimed that, while taking the medication at issue, his 32-year-old son experienced worsening depression, culminating in his suicide one month later. Prior to obtaining the discontinuance, Ms. Halford drafted the firm's motion for summary judgment, arguing that the anti-depressant which had been prescribed is not known to cause suicidal ideation in adults, that the decedent’s death was unforeseeable as a matter of law, and that his death could not be proven to have resulted from suicidal intent. Prior to oral argument on the motion, plaintiff voluntarily discontinued all claims with prejudice.

August 2013

Summary Judgment Won for Orthopedic Surgeon Regarding Postoperative DVT Prophylaxis

Mr. Sikoscow obtained summary judgment on behalf of an orthopedic surgeon whose patient developed DVT, a pulmonary embolism, and expired following a hip resurfacing procedure. An autopsy disclosed that the patient had genetic mutations, making him more prone to clotting. However, since this was not known to the orthopedic surgeon at the time of surgery, summary judgment was granted and the case dismissed.

May 2013

Summary Judgment Granted in Brain-Damaged Infant Case

Ms. Halford succeeded in obtaining summary judgment for a pediatric medical specialist who allegedly failed to diagnose and treat bacterial meningitis in a seven-month-old infant, resulting in global neurologic deficits. In support of the motion Ms. Halford and an expert E.M. specialist argued that the infant had presented to the defendant hospital E.R. with life-threatening respiratory distress, consistent with an infection of the lungs and without any meningeal signs or symptoms; that management in the E.R. was appropriately focused upon stabilizing the infant's respiratory status and vital signs; and that the pediatric medical specialist had no reason or opportunity to undertake a workup for meningitis during the infant's brief time in the E.R. In opposition, plaintiff argued the bactierial meningitis must be considered and ruled out in all infants with febrile illness, and therefore, a lumbar puncture and Gram staining of the blood should have been ordered. The Court was not persuaded by plaintiff's arguments and dismissed all claims against our client.

April 2013

Summary Judgment Granted in Wrongful Death Case

Ms. Halford successfully obtained summary judgment for a dermatologist who was alleged to have negligently failed to diagnose and treat a Methicillin-resistent Staph aureus infection in the decedent prior to an elective valve replacement surgery. Plaintiff claimed that the undiagnosed infection complicated the patient's post-operative course, leading ultimately to a ruptured aortic dissection and the patient's wrongful death. Ms. Halford argued that the decedent's pre-operative skin complaints were consistent with eczematous dermatitis, for which the decedent was appropriately treated, and were in no matter suggestive of an infectious process. The Court accepted the defense's position and concluded that the plaintiff had failed to raise in opposition a triable issue of fact.

March 2013

Case Dismissed Prior to Depositions on Statue of Limitations Grounds

Mr. Sikoscow successfully obtained dismissal for his client radiologist prior to any depositions taking place. He successfully argued that the statute of limitations precluded any cause of action as against his client notwithstanding the fact that the practice that employed his client continued to render care and treatment to the plaintiff.

March 2012

Summary Judgement Granted in Breast Cancer Case

Mr. Sikoscow successfully obtained summary judgment for his client, an internist who allegedly had failed to order screening mammograms in a nursing home setting. Mr. Sikoscow successfully argued that the standard of care did not require screening mammograms in a nursing home population and that, notwithstanding, his client had no duty to order such studies.

May 2012

Case Dismissed on Procedural Grounds

Mr. Sikoscow successfully obtained dismissal for his client/neurosurgeon in Queens County based upon improper service of process. Plaintiff appealed to the Second Department arguing that they had attempted in good faith to secure service. However, Mr. Sikoscow also successfully argued the appeal and the lower court's decision was affirmed.

March 2011

Motion to Dismiss Granted in Malignant Melanoma Case

Mr. Sikoscow successfully argued that the statute of limitations precluded recovery for office visits paid to the defendant internist three years before the eventual diagnosis of melanoma, thereby reducing plaintiff's demand from $7 million to $90,000.

June 2011

Summary Judgement Granted in Brain Damaged Infant Case and Affirmed by the Second Department

In Supreme Court, Westchester County, Mr. Sikoscow obtained summary judgment on behalf of a pediatrician who was alleged to have caused brain injury to a neonate by failing to ensure proper blood glucose levels; failing to properly diagnose and treat hyperbilirubinemia; and failing to timely diagnose developmental delays during routine pediatric care. The Court accepted our showing regarding the propriety of the care rendered, and agreed that plaintiffs' expert's affirmation in opposition was legally insufficient to create a triable issue of fact.

Mr. Sikoscow successfully argued before the Supreme Court, Second Department, the propriety of the trial court's decision granting his client summary judgment.The Second Department agreed that plaintiff's expert affirmation in opposition to Mr. Sikoscow's motion for summary judgment was inadequate as a matter of law.

February 2011

Traverse Hearing Results in a Dismissal

Mr. Sikoscow successfully obtained dismissal on behalf of a metropolitan area hospital and employed physicians at a traverse hearing. He successfully convinced the presiding judge that plaintiff's hired process server failed to adequately maintain records required by law and demonstrated improper service of process on his clients.

February 2010

Summary Judgment Granted on Behalf of Pediatrician, Alleged Failure to Diagnose and Treat Neonatal Hypoglycemia

In Supreme Court, Westchester County, Mr. Sikoscow obtained summary judgment on behalf of a pediatrician who was alleged to have caused brain injury to a neonate by failing to ensure proper blood glucose levels; failing to properly diagnose and treat hyperbilirubinemia; and failing to timely diagnose developmental delays during routine pediatric care. The Court accepted our showing regarding the propriety of the care rendered, and agreed that plaintiffs' expert's affirmation in opposition was legally insufficient to create a triable issue of fact.

February 2009

Firm Successfully Opposes Post-trial Motion to Set Aside Jury Verdict.

Judge Janice Taylor (Supreme Court, Queens County) denied plaintiff's motion to set aside jury verdict obtained in July 2008 in favor of orthopedic surgeon, supported by testimony of infectious diseases and orthopedic experts called by the defense.

- July 2008 Verdict >>

July 2008

Firm Successfully Opposes Post-trial Motion to Set Aside Jury Verdict.

Firm successfully opposes plaintiffs' post-trial motion seeking to set aside November 2007 jury verdict, which found the defendant radiologist's failure to order additional radiological studies did not alter the plaintiff's prognosis. The plaintiffs argued that this departure from the standard of care contributed to a delay in the diagnosis of the plaintiff's appendiceal carcinoid tumors, resulting in diminished life expectancy. The trial Court denied plaintiffs' motion and refused to disturb the verdict.

- November 2007 Verdict >>

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