Verdicts & News

Directed Verdict Granted in New York Fall Injury Trial

October 12, 2016

Prolific plaintiffs’ expert’s trial testimony fails to meet burden of proof.

Overland Park, Kansas - October 12, 2016 - Preferred Physicians Medical (PPM), industry-leading provider of professional liability insurance for anesthesia practices, announced that a judge in Orange County, NY, recently rendered a directed verdict in favor of a PPM-insured anesthesiologist.

The case involved a 75 year-old female who underwent a diagnostic colonoscopy. The procedure was performed without complication. The patient was transferred to her room and was later evaluated by the PPM-insured anesthesiologist who determined the patient met discharge criteria. The patient received assistance from the facility’s nursing staff in preparation for discharge. The patient was seated in a chair when attempting to put on her undergarments, at which point she testified she “leaned way over in the chair” and fell onto the floor. The patient’s injuries included a right hip fracture. The patient sued the facility, the surgeon and the male anesthesiologist, alleging failure to monitor and premature discharge.

Prior to trial, plaintiff made a $225,000 settlement demand as to all defendants. None of the defendants made any settlement offers and proceeded to trial.

Plaintiff’s prolific anesthesia expert, Dr. Alexander Weingarten from Syosett, New York, testified against the PPM-insured anesthesiologist. Dr. Weingarten confirmed that since 2010, he had testified 88 times exclusively for plaintiffs. Dr. Weingarten conceded that the only way that he or any anesthesia provider could ascertain whether the patient had met discharge criteria would be through an in-person physical evaluation; nevertheless, he argued that the mere fact that the patient fell evidenced that she was not ready for discharge. Dr. Weingarten also conceded that a male anesthesiologist would not be expected to assist a female patient with dressing herself. Dr. Weingarten admitted that he had not reviewed the patient’s primary care records, which noted a history of dizziness. He also acknowledged that the patient’s postoperative blood pressure and other vital signs were consistent with her historical baselines. Additionally, Dr. Weingarten indicated that the patient was properly hydrated and that the propofol in her system had likely dissipated in effect when she fell. Dr. Weingarten finally admitted that a patient can fall having met discharge criteria and through no negligence by the patient’s providers.

In an extremely rare development, the Court granted the defendants’ Motion for Directed Verdict upon completion of plaintiff’s case. The Court ruled that not only did the plaintiff fail to submit sufficient expert opinion evidence to establish the defendants’ alleged negligence, but plaintiff failed to submit any evidence proving that those departures were the proximate cause of plaintiff’s fall. Based on these rulings, the Court dismissed plaintiff’s lawsuit.

Stuart Bernstein, Esq., with the law firm of Koster, Brady & Nagler, L.L.P., in New York, New York, represented PPM’s insured anesthesiologist. Arik Worsfold, Claims Attorney, managed the file on behalf of PPM.

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