• 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
      • Truck Accident Lawyers
      • Wrongful Death Lawyers
      • Motorcycle Accident Lawyers
    • Nursing Home 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
      • Truck Accident Lawyers
      • Wrongful Death Lawyers
      • Motorcycle Accident Lawyers
    • Nursing Home Abuse
    • Criminal Defense
    • Medical Malpractice
  • Blog
  • Resources
    • Videos
    • Notable Cases
  • Contact Us
Call
Contact
Blog
Home  /  Medical Malpractice  /  Second Department Decides Case Involving Complications After Lap Band Surgery

Second Department Decides Case Involving Complications After Lap Band Surgery

by Law Offices of Thomas L. Gallivan, PLLC 01 Dec2015

The New York Supreme Court, Appellate Division, Second Department affirmed in part and reversed in part a trial court order for summary judgment in a medical malpractice case.

The plaintiff underwent lap band surgery in 2002, which led to complications with her pregnancy. In June 2004, after visiting her doctor’s office with complaints of nausea, vomiting, constipation, and pain in the area of the lap band, plaintiff, who was then 19 weeks pregnant, was admitted to the defendant Lutheran Medical Center. Andrade’s symptoms never subsided and a gastrointestinal work-up did not reveal a cause for them. The defendant recommended the insertion of a feeding tube to provide nutritional support to the plaintiff during her pregnancy as the preferred course of action, although doing nothing or removing the lap band also were presented as options. The medical records submitted by the defendants demonstrate that the Plaintiff rejected the feeding tube option and decided to have the lap band removed surgically. Following the lap band removal surgery, the Plaintiff complained of difficulty breathing. Bauer, an anesthesiologist, provided Andrade with supplemental oxygen and an Albuterol treatment. Thereafter, Andrade was intubated, and then transferred to the surgical intensive care unit where she was placed on a ventilator. She never recovered and, on June 28, 2004, almost 20 days after being admitted to LMC, Plaintiff died and her fetus did not survive. Andrade’s diagnoses included adult respiratory distress syndrome, pneumothorax, sepsis, and multi-organ failure. The autopsy report listed her cause of death as complications following the removal of the lap ban.

The plaintiff’s estate filed a complaint against the hospital and all of the plaintiff’s treating physicians alleging medical malpractice and wrongful death.

All of the defendants filed motions for summary judgment. The trial court granted summary judgment dismissing the complaint for the defendants and denied the plaintiff’s motion for leave to reargue their opposition to the defendant’s motions pursuant to CPLR 2221.

In order to establish a claim for medical malpractice, the plaintiff must demonstrate departure from accepted medical practices and evidence that the departure was the proximate cause of the plaintiff’s injury.

On a motion for summary judgment, the defendant has the burden of demonstrating that they did in fact follow accepted medical procedures and practices, and/or demonstrating that the plaintiff’s injury did not occur due to a departure from accepted medical practices. If the defendant is successful in demonstrating that they did follow accepted medical procedures and/or that the plaintiff’s injury did not occur due to a departure from accepted medical practices then the plaintiff must submit evidence that show that triable issues of fact still exist.

The Second Department held that the trial court should have denied the Defendants’ motion for summary judgment, dismissing the complaint, because the hospital and one of the defendant physicians failed to establish their entitlement to judgment as a matter of law.

The Supreme Court, Appellate Division further held that the Supreme Court properly granted the motion of the defendants (plaintiff’s first and second treating physicians) for summary judgment thus dismissing the complaint. The Court found that the defendants each established that their actions conformed to accepted standards of medical practice in their treatment of the plaintiff. The Court further found that the defendants’ actions during the Plaintiff’s treatment were not the proximate cause of the Plaintiff’s respiratory issues or death.

The Court found that the plaintiff was unable to raise triable issues of fact and stated that broad accusations of medical malpractice, which are purely speculative and unsubstantiated by evidence, are insufficient to defeat a defendant physician’s motion for summary judgment.

Macias v. Ferzli, 131 A.D.3d 673, 677, 15 N.Y.S.3d 466 (N.Y. App. Div. 2015).

Posted in: Medical Malpractice, Nursing Home Abuse, Wrongful Death

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