SSEP Testing in Medical Malpractice Cases: Understanding Your Rights in Long Island & NYC

Understanding SSEP Testing in Medical Malpractice Cases: A Critical Analysis

When medical procedures go wrong, the question of whether proper monitoring was conducted becomes paramount in determining liability. For personal injury attorneys in Long Island and New York City, understanding the nuances of medical technology and its legal implications can make the difference between a successful case and a missed opportunity. The recent decision in Vaccaro v St. Vincent’s Med. Ctr. provides crucial insight into how courts evaluate the standard of care regarding Somatosensory Evoked Potential (SSEP) testing during spinal surgery.

The Vaccaro Case: When Medical Monitoring Fails

Vaccaro v St. Vincent’s Med. Ctr., 2010 NY Slip Op 02547 (2d Dept. 2010).

It is probably a deviation of the standard of care as limited by this appeal to perform spinal surgery without the assistance of SSEP testing, so intimates the Appellate Division.

The Hospital’s Failure to Meet Summary Judgment Standards

“However, the Supreme Court erred in granting that branch of the Hospital’s motion which was for summary judgment dismissing the complaint insofar as asserted against it. Initially, we note that the record contains conflicting evidence as to whether SSEP monitoring was actually performed during the surgery. The hospital record, operative report, and Dr. Rubio-Gonzalez’s testimony all support the conclusion that SSEP monitoring was performed throughout the surgery. However, the deposition testimony of Dr. Shiau and Osborn is to the contrary. Dr. Shiau testified that SSEP monitoring was not necessary “in a case like this” and that he neither intended to, nor did, have such monitoring conducted during the surgery, his operative report stating that SSEP monitoring was performed throughout the surgery notwithstanding. Osborn testified that while she attempted to use the SSEP machine made available to her at the Hospital to monitor Vaccaro, attached the electrodes to Vaccaro, and remained in the operating room for about 30 minutes after Vaccaro was anesthetized, when she was unable to obtain a baseline reading for Vaccaro, Dr. Shiau told her to “wrap it up,” at which point she left the operating room.

The plaintiffs’ anesthesiology expert opined that Vaccaro’s surgery required SSEP monitoring and the Hospital had an obligation to ensure that a properly working SSEP monitoring machine was “readily available in the operating room.” The plaintiffs’ neurosurgery expert concurred. Accordingly, since the Hospital did not demonstrate the absence of any issues of fact as to whether its alleged failure to provide SSEP monitoring was a deviation from the acceptable standard of care, it did not meet its prima facie burden of establishing its entitlement to judgment as a matter of law with respect to that theory of liability (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). [*3]

Hospital Liability for Physician Privileges and Equipment Use

Moreover, the Hospital failed to demonstrate its entitlement to judgment as a matter of law with respect to the plaintiffs’ claim that it negligently permitted Dr. Shiau to utilize the Met-RX procedure in performing the surgery. Initially, contrary to the Hospital’s contention, this theory of liability was originally asserted in the original complaint and amplified in the bill of particulars. The Hospital demonstrated its prima facie entitlement to judgment as a matter of law by submitting the affirmation of its neurosurgery expert, who opined that the Hospital did not erroneously permit Dr. Shiau to utilize the Met-RX procedure because it was FDA approved, and the decision to use it was “within the sole province of the operating surgeon.” In opposition, however, the plaintiffs raised a triable issue of fact through, inter alia, Dr. Shiau’s deposition testimony that the Hospital permitted him to use the system, but never inquired into his background and training with the procedure, and that he had used the system in cervical spine surgery only once or twice before, as well as the affirmation of the plaintiffs’ neurosurgery and anesthesiology experts, who opined that the Hospital failed to undertake due diligence in determining whether Dr. Shiau had the requisite training and experience to utilize the procedure in cervical spinal surgery.

Anesthesiologist’s Duty to Intervene

The Supreme Court also erred in awarding summary judgment dismissing the complaint insofar as asserted against Dr. Rubio-Gonzales. Dr. Rubio-Gonzales demonstrated her prima facie entitlement to judgment as a matter of law by submitting the affirmation of Dr. Elizabeth Frost, an anesthesiologist. Dr. Frost opined, based on her review of the record herein and Vaccaro’s medical records, that Dr. Rubio-Gonzales’s administration of anesthesia fully conformed with accepted medical practice. In opposition to her prima facie showing, the plaintiffs submitted the expert affirmation of an unidentified anesthesiologist, who opined that SSEP monitoring was required because the surgery involved a risk of injury to the spinal cord, that both Dr. Shiau and Dr. Rubio-Gonzales knew that it was required, and that, if the monitor was not working, both Dr. Shiau and Dr. Rubio-Gonzales had an obligation to cancel the surgery. In the expert’s opinion, the failure of these two physicians to cancel the surgery under those conditions constituted a departure from the acceptable standard of care. Specifically, with respect to Dr. Rubio-Gonzales, the expert stated, “ is … the attending anesthesiologist’s responsibility to familiarize himself/herself with the demands of a particular surgery especially when the surgery is going to be performed with novel, and fundamentally limiting equipment, and to stop the surgeon from performing an elective procedure when necessary monitoring equipment is not being used.” Therefore, the plaintiffs raised a triable issue of fact as to whether Dr. Rubio-Gonzales should have intervened if Dr. Shiau proceeded without SSEP monitoring (see Warney v Haddad, 237 AD2d 123, 123-124).

The Monitoring Company’s Negligence Claims

The Supreme Court also erroneously granted the motion of Healthcare, Neuroscience, and Osborn (hereinafter collectively the Healthcare defendants) for summary judgment dismissing the complaint insofar as asserted against them based upon its conclusions that SSEP monitoring was not conducted during the surgery and that Osborn had no duty to independently determine whether SSEP monitoring should be performed on a patient. Contrary to the Healthcare defendants’ contention that no monitoring took place, as noted above, a factfinder could reasonably determine that SSEP monitoring was performed, and the plaintiffs alleged that, if the monitoring was performed, Osborn performed it in a negligent manner, which represented a deviation from the accepted standard of care and proximately caused Vaccaro’s injury. Since the Healthcare defendants did not address the allegation that Osborn negligently performed the monitoring, they failed to establish their prima facie entitlement to judgment as a matter of law.”

Implications for Motor Vehicle Accident Cases

Has anyone seen a court hold that is a breach of the standard of care not to perform SSEP testing when treating someone for trauma based injuries, relating to a motor vehicle accident? This is a good line of questioning – as appropriately phrased – for a plaintiff’s rebuttal witness on this topic.

Understanding SSEP Testing in Personal Injury Law

Somatosensory Evoked Potential (SSEP) testing represents a critical diagnostic tool in modern medical practice, particularly in cases involving potential spinal cord injuries. For personal injury attorneys handling motor vehicle accidents in Long Island and New York City, understanding when SSEP monitoring should be employed can significantly impact case outcomes.

SSEP monitoring involves the measurement of electrical signals as they travel from peripheral nerves to the brain. During high-risk spinal surgeries, this monitoring can detect nerve damage in real-time, potentially preventing permanent paralysis or other serious complications. When medical providers fail to utilize this technology appropriately, it may constitute medical malpractice.

The Standard of Care in New York

The Vaccaro decision suggests that courts are increasingly willing to find that SSEP monitoring may be required as part of the standard of care for certain surgical procedures. This development has significant implications for personal injury cases, particularly those involving:

• Cervical spine injuries from motor vehicle accidents
• Complex spinal surgeries following traumatic injuries
• Cases where patients suffer unexpected neurological deficits post-surgery
• Hospital liability for equipment failures or inadequate monitoring protocols

Frequently Asked Questions About SSEP Testing and Medical Malpractice

What is SSEP testing and when is it required?

Somatosensory Evoked Potential (SSEP) testing is a neurological monitoring technique used during surgeries that pose risks to the spinal cord or peripheral nerves. The test involves placing electrodes on the patient to monitor nerve signals during the procedure. While not required for all surgeries, it is increasingly considered the standard of care for high-risk spinal procedures, particularly in the cervical region.

Can hospitals be held liable for SSEP equipment failures?

Yes, as demonstrated in the Vaccaro case, hospitals can face liability when they fail to provide properly functioning SSEP monitoring equipment. The court noted that hospitals have an obligation to ensure that necessary monitoring equipment is “readily available in the operating room” and functioning properly.

What role do anesthesiologists play in SSEP monitoring decisions?

Anesthesiologists have a duty to familiarize themselves with the surgical requirements and may have an obligation to intervene if necessary monitoring equipment is not being used. The Vaccaro decision suggests that anesthesiologists cannot simply defer to surgeons when patient safety is at stake.

How does the lack of SSEP monitoring affect a medical malpractice case?

The absence of SSEP monitoring in cases where it should have been used can establish a breach of the standard of care. Expert testimony is typically required to demonstrate that the failure to monitor was inappropriate given the circumstances and that this failure contributed to the patient’s injuries.

Can SSEP monitoring prevent all spinal cord injuries during surgery?

While SSEP monitoring significantly reduces the risk of undetected nerve damage during surgery, it cannot prevent all complications. However, proper monitoring can detect problems early, potentially allowing surgeons to modify their approach and minimize damage.

Building Strong Medical Malpractice Cases in Long Island and NYC

For personal injury attorneys practicing in Long Island and New York City, the Vaccaro decision provides important precedent for challenging medical care that fails to meet current standards. Key strategies include:

• Obtaining detailed medical records regarding monitoring equipment availability and functionality
• Securing expert testimony on the standard of care for SSEP monitoring in similar cases
• Investigating hospital policies and procedures regarding high-risk surgeries
• Examining the training and experience of all medical personnel involved

The Evolving Standard of Care

Medical technology continues to advance, and with it, the legal standard of care evolves. What was once considered optional may become required as technology improves and becomes more widely available. The Vaccaro case represents this evolution, suggesting that SSEP monitoring may no longer be optional for certain high-risk procedures.

Personal injury attorneys must stay current with these developments to effectively represent clients who have suffered injuries due to inadequate medical monitoring. This includes understanding not only the technology itself but also the legal theories that can be employed when such monitoring is absent or inadequate.

Contact an Experienced Personal Injury Attorney

If you or a loved one has suffered injuries due to inadequate medical monitoring during surgery, particularly involving spinal procedures, you may have grounds for a medical malpractice claim. The complexities involved in proving cases related to SSEP monitoring require the expertise of attorneys who understand both the medical and legal aspects of these claims.

At the Law Office of Jason Tenenbaum, we have extensive experience handling complex medical malpractice cases throughout Long Island and New York City. Our team works with leading medical experts to build compelling cases for our clients. Don’t let statutory deadlines prevent you from seeking the compensation you deserve.

Call us today at (516) 750-0595 for a free consultation to discuss your case and learn about your legal options.

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Legal Update (February 2026): Since this 2010 analysis of SSEP monitoring standards in medical malpractice cases, New York courts have continued to develop jurisprudence regarding medical monitoring technologies and evolving standards of care in surgical procedures. Medical technology standards, expert witness qualification requirements, and procedural rules governing medical malpractice litigation may have been updated through subsequent court decisions, regulatory changes, or amendments to CPLR provisions. Practitioners should verify current medical standard of care requirements and applicable procedural rules when evaluating similar monitoring-related malpractice claims.