• Skip to main content
  • Skip to primary sidebar
  • Skip to footer
(914) 220-1086

Law Offices of Thomas L. Gallivan, PLLC

Just another WordPress site

  • Home
  • About
    • Attorney Profiles
      • Daniel F. Gallivan
      • Thomas L. Gallivan
      • James C. Freeman
      • Andrew J. Gilbride
    • Testimonials
  • Practice Areas
    • Personal Injury
      • Car Accident Lawyers
      • Pedestrian Accident Lawyers
      • Slip & Fall Lawyers
      • New York Truck Accident Lawyers
      • Wrongful Death Lawyers
      • Motorcycle Accident Lawyers
      • Uber Accident Lawyers
    • Nursing Home Abuse
      • Bedsores and Pressure Ulcers
      • Bruises and Cuts
      • Elopement
      • Falls & Broken Bones
      • Group Home Abuse
      • Infections
      • Malnutrition
      • Physical Abuse
    • Criminal Defense
    • Medical Malpractice
  • Blog
  • Resources
    • Videos
    • Notable Cases
  • Contact Us
  • Home
  • About
    • Attorney Profiles
      • Daniel F. Gallivan
      • Thomas L. Gallivan
      • James C. Freeman
      • Andrew J. Gilbride
    • Testimonials
  • Practice Areas
    • Personal Injury
      • Car Accident Lawyers
      • Pedestrian Accident Lawyers
      • Slip & Fall Lawyers
      • New York Truck Accident Lawyers
      • Wrongful Death Lawyers
      • Motorcycle Accident Lawyers
      • Uber Accident Lawyers
    • Nursing Home Abuse
      • Bedsores and Pressure Ulcers
      • Bruises and Cuts
      • Elopement
      • Falls & Broken Bones
      • Group Home Abuse
      • Infections
      • Malnutrition
      • Physical Abuse
    • Criminal Defense
    • Medical Malpractice
  • Blog
  • Resources
    • Videos
    • Notable Cases
  • Contact Us
Call
Contact
Blog
Home  /  Personal Injury Law  /  $115,000 Pain and Suffering Verdict Affirmed in Surgical Malpractice Case

$115,000 Pain and Suffering Verdict Affirmed in Surgical Malpractice Case

by Law Offices of Thomas L. Gallivan, PLLC 25 Jul2015

The New York Supreme Court, Appellate Division, Fourth Department affirmed a jury verdict that awarded the plaintiff $115,000 in past pain and suffering when a surgical team left a surgical instrument inside of the plaintiff.

The plaintiff was undergoing surgery at the defendant hospital at the time of the incident. A team of nurses and a surgeon were present during the operation. Someone left a surgical instrument in the defendant’s body, and the plaintiff filed a lawsuit for medical malpractice against the hospital and the surgeon. Only the claims against the hospital went to trial. After a jury verdict for the plaintiff, the jury awarded the plaintiff $115,000 for past pain and suffering.

The hospital appealed, arguing that the pain and suffering award was excessive. The Fourth Department disagreed. It held that it was reasonable compensation given the circumstances.

The hospital also argued that the court erred in prohibiting the nurses from testifying at trial regarding any opinions they had about any possible negligence they witnessed, either on behalf of the surgeon, the procedures employed in the surgery room or how the instrument came to be left in the body.

The Fourth Department held that this argument was flawed because nurses cannot testify about the standard of care regarding doctors because they are not doctors. They do not have the requisite training and expertise to know about a doctor’s standard of care.

In addition, two of the operating room nurses did testify at the trial. However, they testified that they could not recall the surgery at all. Thus any testimony on whether negligence had occurred that day would have been based on pure speculation and not probative in the slightest.

The defendant also argued that the surgeon’s name should have been listed on the verdict sheet so that the jury could have apportioned some damages specifically to the surgeon. Thus the defendant argued that the surgeon was liable for the instrument incident and that the damages should reflect that. However, the case was discontinued against the surgeon, so the plaintiff was not required to prove that the surgeon specifically breached a duty and that the breach caused the injury. As such, the Fourth Department denied this request.

On another point, the defendant argued that the plaintiff failed to prove who exactly had exclusive control over the instrument and therefore caused the injury. The defendant argued that in order to hold the employer (the hospital) liable, the plaintiff needed to prove which of its employees was responsible for the negligence.

The defendant made this argument under the doctrine of res ipsa loquitor. Res ipsa loquitor is Latin for “the thing speaks for itself.” It is reserved for cases of negligence where the injury itself or the nature of the accident infers negligence. The fact that a surgical instrument was left inside someone’s body after an operation therefore infers that someone acted negligently. However, the defendant was wrong in arguing the plaintiff needed to prove who left the instrument there. Res ipsa loquitor does not require any evidence of how a specific person behaved negligently. Thus it wasn’t necessary for the plaintiff to prove which nurse or doctor held the instrument at what time and who was responsible for leaving it in the plaintiff’s body.

Finally, the defendant argued that the court erred in denying its request to ask the plaintiff if other medical conditions may have caused the injury alleged to have been caused by the medical malpractice. Because the plaintiff did not properly preserve this argument, the Fourth Department refused to consider it.

All judges concurred in the Fourth Department opinion except for one, who concurred in the result but disagreed with the other judges on the nurse testimony issue. This judge stated that he believes that the nurse’s testimony was not required by law to have been precluded.

If you or a loved one has suffered from personal injuries due to medical malpractice, you may have legal recourse against the doctor, hospital or nurses. Call the experienced medical malpractice lawyers at the Law Offices of Thomas L. Gallivan, PLLC today to discuss your potential claims.


Resources:

Lauto v. Catholic Health Sys., Inc., 125 AD3d 1352 (4th Dept., Feb. 6, 2015).

Posted in: Personal Injury Law, Medical Malpractice, Miscellaneous

Primary Sidebar

Get In Touch

Practice Areas

Personal Injury

  • Wrongful Death
  • Motor Vehicle Accidents
  • Trucking Accidents
  • Pedestrian Accidents
  • Construction Accidents
  • Scaffolding Accidents
  • Slip, Trip & Falls (Premises Liability)
  • Negligent Supervision at a School or Day Care
  • Sidewalk Falls
  • Elevator Accidents
  • Train and Subway Accidents

Nursing Home Neglect & Abuse

  • Bedsores (Pressure Ulcers)
  • Falls & Fractures
  • Malnutrition and Dehydration
  • Physical and Sexual Abuse
  • Wandering & Elopement
  • Unexplained Bruises and Cuts
  • Infection
  • Choking Incidents
  • Medication Errors
  • Group Homes
  • Assisted Living Facilities

Criminal/DWI Defense

  • DWI (Driving While Intoxicated)
  • Criminal Defense
  • Traffic Violations
  • DMV Refusal Hearings
  • Sex Crimes
  • Shoplifting & Larceny
  • Assault & Vehicular Assault
  • Drug Possession
  • Drug Sales
  • Weapons Charges
  • Domestic Violence
  • How is a DWI Defined in New York?
  • Is the Driver’s License Confiscated Immediately Upon a DWI Arrest?

Medical Malpractice

  • Failure to Diagnose Cancer
  • Birth Injuries (Gynecological, Obstetrical)
  • Medication Errors
  • Surgical Errors
  • Gastric Bypass Surgery Errors
  • Emergency Room Errors
  • Failure to Diagnose Heart Attack or Stroke
  • Cerebral Palsy
  • Erbs Palsy Birth Injury

Trusts + Estates

  • Wills & Trusts
  • Divorce, Child Support, Custody Issues
  • Elder Law
  • Estate Planning
  • Guardianships
  • Medicaid-Planning
  • Power of Attorney / Health Care Proxy
  • Probate and Estate Administration
  • Surrogate Court Litigation
  • Real Estate
  • Business Formation
  • Wills
  • Will Contests

View All Practice Areas

View All Blogs

CLIENT TESTIMONIALS

" Last year I was injured in an accident, and for the first time, needed the advice of an attorney regarding how to proceed. I was referred to Thomas Gallivan through a family member who is a lawyer in Massachusetts. I am beyond pleased with how Thomas handled my case. He was knowledgeable, professional, and although the case was not as straightforward as some, he used every resource to ensure a positive outcome. Thomas communicated with me regularly and I felt completely informed and confident in his ability. He expertly negotiated a fair settlement that I was very happy with. The entire experience was extremely positive, during a stressful time for me. Thank you Thomas. "

Melanie

" Attorney Thomas Gallivan is a wonderful attorney!! I particularly liked his professionalism, consistency, always kept us updated on the case, and available upon request. He worked extremely hard and was persistent on getting the best settlement in a timely matter. I truly appreciated his prompt responsiveness to emails and phone calls. The office staff was very pleasant and made sure to get messages to him asap. Glad we chose this law firm, would highly recommend and in the event that we ever need an attorney again, Gallivan & Gallivan would be my primary choice. "

Katherine R.

" I was a passenger on a motorcycle and ended up falling off the back of the bike due to the driver acting like an idiot. I fell off at a high rate of speed and was very banged up. Fractured wrist and road rash down my back and elbows. I am lucky I didnt die. Not knowing what to do I contacted Thomas and he could not have been anymore helpful!! He went out of his way to meet with me. He actually came to my house for the initial consultation. I know nothing about law or what my options even were. He took me through everything step by step. "

Colin W.

View All Testimonials

245 Main St Suite 450 White Plains, NY 10601

Phone:
(914) 220-1086

Fax:
(516) 394-4229

555 5th Ave 14th Floor
New York, NY 10017

Toll Free:
(855) 228-7369

(By Appointment Only)

1370 RXR Plaza
Uniondale, NY 11556

Phone:
(914) 594-6820

Fax:
(516) 394-4229

12 1st St
Riverhead, NY 11901

Phone:
(914) 825-5855

Fax:
(516) 394-4229

Footer

  • Home
  • About
  • Practice Areas
  • Blog
  • Resources
  • Contact Us

ATTORNEY ADVERTISING

Copyright © 2022, Law Offices of Thomas L. Gallivan, PLLC