Medical malpractice “where is the proximate cause” conundrumSeptember 13, 2019

Mi Jung Kim v Lewin, 2019 NY Slip Op 06487 (2d Dept. 2019)

This is a strange medical malpractice case. The allegation is that a doctor, known in the NY NF and WC circles performed back surgery, knew a second surgery was necessary following the post-op MRI and failed to immediately advise the Plaintiff about the same.

One month following MRI, the doctor told Plaintiff she needed another back surgery. She went to another doctor and it was performed at that date.

The jury found a departure and proximate cause. Supreme Court set aside the verdict and the App. Div. affirmed the vacatur of the verdict.

“Here, considering the evidence in the light most favorable to the plaintiff, there is a rational process by which the jury could have found that the defendant departed from accepted community standards of care by failing to recommend surgery to the plaintiff when he visited her at the rehabilitation facility on August 15, 2010, after reviewing the post-operative MRI study of her lumbar spine. The plaintiff testified that the defendant did not discuss surgery during that visit, and her expert testified that the defendant’s failure to present surgical alternatives to the plaintiff “in a timely fashion” after reviewing the post-operative MRI was a departure from accepted community standards of care.

However, there is no rational process by which the jury could have found that the defendant’s departure from the standard of care proximately caused the plaintiff’s injuries (see Gayle v Newman, 91 AD2d 75, 80; cf. Fellin v Sahgal, 35 AD3d at 802). The plaintiff’s expert opined that the eight-month delay between the August 2010 post-operative MRI, which indicated that there was still compression on the nerve, and the second surgery in April 2011 caused the plaintiff’s injuries and resulted in a “worse outcome.” However, it is uncontested that she was appropriately advised of surgical options on September 13, 2010. Thus, the plaintiff decided to cease treatment with the defendant after the November 2010 visit and to begin receiving treatment from another physician in December 2010. The plaintiff’s expert failed to present any evidence to show that the approximate one-month period between the August 2010 visit following the post-operative MRI and the defendant’s advice about surgery on September 13, 2010, was a substantial factor in causing her injuries (see Previtera v Nath, 164 AD3d 848, 851).”

I have to say good job to the plaintiff attorney for beating a 4401 dismissal and getting a jury to award money on this case. The trial court and the Appellate Division were correct in setting aside the verdict. But this is a case that makes you scratch your head.

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