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Was Dr. duplicitous in his opinion as to 'cause'.

CASE ON POINT: Roemer v. Miller, 2009-NY-0226.287 (2/23/2009)--NY

ISSUE: Surgery to remove a portion of James Roemer's liver was done at Mount Sinai Hospital on January 20, 1999. The surgery was performed by Dr. Charles Miller and Sukru Emre. Drs. Miller and Emre were assisted by Dr. Ben-Haim. The attending anesthesiologist was Dr. Gabrielson, and the resident anesthesiologist was Dr. Avtar Gill. In preparation for the surgery, the patient was placed in a supine position with both arms on arm boards extended less that ninety degrees. Anesthesia was begun at 10:38 a.m., surgery started a 11:38 a.m., the procedure ended at 5:11 p.m., and anesthesia ended at 5:47 p.m. Hospital records indicated that the surgery was completed without complications. However, immediately after surgery the patient complained of left shoulder pain; an x-ray was ordered, but the films did not show any dislocation. The patient also complained of numbness in all fingers bilaterally. The pain service noted that the patient had a weak hand grip bilaterally at 8:00 a.m. When tested again at 8:45 a.m., the patient had regained normal strength in the right hand, although the left hand still had decreased strength. By January 30, 1999, the patient was still experiencing numbness in his left hand and arm. It was noted that the patient's complaints of numbness were possibly due to positioning during surgery. The symptoms appeared to have improved over the next few days that the patient remained in the hospital. By February 3, 1999, the patient's discharge date, hospital records reflected that there was no neurological damage. The patient was discharged in stable condition and instructed to follow-up in the hepto-biliary clinic. On February 18, 1999, the patient consulted with Dr. David Bronster, a neurologist, complaining of pain in his left shoulder, numbness into his hand, occasional pain in his left triceps, and numbness in his thumb and first two fingers. Dr. Bronster's notes indicated that the patient's hand was weak, and his impression was brachial plexus versus cervical radiculopathy. An electromyography study (EMG) was performed on that date, and the findings as reported by Dr. Mark Sivak, were consistent with left-sided carpel tunnel syndrome. The patient returned to Dr. Bronster on February 23, 1999. His impression was that the patient had possible compression neuropathy, and he ordered non-steroidal anti-inflammatories, a brace, and follow-up in ten days. At the follow-up on March 2, Dr. Bronster noted no improvement. Dr. Bronster also referred the patient for an MRI of his cervical spine. The defendants filed a motion for an order to show cause why summary judgment should not be granted for them.

COURT'S OPINION: The Supreme Court of New York denied the defendants' motion in its entirety. The court held, inter alia, that defendants were not entitled to summary judgment. The court noted that the case facts were replete with questions of fact, so much so, that there was no possible way that any court could decide the case on a motion for summary judgment. One example of the many issues of fact to be determined by a jury was the fact that Dr. Magill inconsistently averred that the positioning of the patient during surgery was proper and within the standard of care, and stated that "even with the best positioning, a patient can develop temporary neurological injuries following a lengthy surgery such as the procedure performed on the plaintiff. However, Dr. Magill contradicted himself when he stated in his April 1999, report: "[Plaintiff] may or may not have carpal tunnel and this may resolve over time. It seems to be related to his surgical procedure and probably is a positional event or depending on how they tied his arm down, a traction event."

LEGAL COMMENTARY: The defendants failed to meet their burden of demonstrating the absence of any material issues of fact on their motion for summary judgment. Contradictions between Dr. Magill's affirmation and plaintiff's medical records demonstrated that issues of material fact remained as to whether the plaintiff's injuries were caused by positioning during the surgery and whether the plaintiff's initial injury was temporary. There was no question that the plaintiff reported pain and numbness in his left shoulder, arm, and hand, immediately after surgery on January 29, 1999. The plaintiff's medical records from February 1999, and April 1999, and April 1999, and January 2004, and September 2009, consistently indicated left-sided carpal tunnel syndrome, which in April 1999, Dr. Magill noted could possibly be related to the plaintiff's surgery. While Dr. Magill affirmed that the plaintiff's complaints had "completely resolved" by 2003, his treatment records for the plaintiff in June 2003, actually indicated that "most" of the plaintiff's complaints had resolved, and that a "baseline low level numbness" remained that worsened in certain positions. Although Dr. Magill asserted that even with the best positioning, patients can develop neuropathy after a lengthy surgery, he failed to address any aspect of the positioning beyond his statement that positioning of the plaintiff during the surgery was proper. Finally, Dr. Magill stated that neuropathy, unrelated to positioning, can occur after a lengthy surgery.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law Practicing law for over 40 years. he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers. Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Legal Focus on Hospital Law Issues
Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Date:Feb 1, 2009
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