Partner, Laurie A. Annunziato assisted by Senior Associate Francesca L. Mountain and Associate Christina Casarella obtained a directed verdict in Supreme Court, Westchester County before Justice Lester Adler. The case involved a claim of a failure to diagnose and timely treat an infected knee prothesis resulting in sepsis and death. The decedent underwent a total knee replacement in September of the year at issue, performed by the codefendant orthopedic surgeon at our client Hospital. The wound healed but a few weeks after the procedure, the patient sustained a patella tendon rupture during physical therapy. The decedent was readmitted to defendant Hospital and the surgical site for the knee replacement was reopened to repair the tendon. The patient was discharged four days later and admitted to a subacute nursing facility.
The plaintiff claimed that the wound never healed and there were signs of infection that were not appreciated within a week of discharge. Several weeks later the patient was readmitted to defendant Hospital by the codefendant orthopedic surgeon for further evaluation of the wound. The patient was started on antibiotics and the orthopedic surgeon performed an Irrigation and Debridement on the third day of the admission. Cultures were taken and the surgeon did not believe that the patient was suffering from a significant infection. The plan was to continue to monitor the patient in the hospital and perform further procedures as warranted. Several days later however the patient requested transfer to another hospital where the prothesis was removed. The patient developed sepsis, acute respiratory failure and ultimately died in January of the following year.
During the plaintiff’s case, the defense established that the decedent was directly admitted to the client Hospital by her private orthopedic surgeon for each of the three admissions. The defense also established that the codefendant surgeon continued to manage the patient’s care throughout the admission and that the nonparty physicians who assisted in the management of the patient’s care were either the patient’s private doctor or specifically requested to consult by the orthopedic surgeon. The plaintiff was not able to elicit any expert testimony that a nurse or employee deviated from the standards of care in the treatment of the patient. Consequently at the close of the plaintiff’s case, we moved for a directed verdict arguing that the client Hospital could not be, by law, held vicariously liable for the acts of the private treating surgeon or nonparty physicians and that the plaintiff failed to offer any evidence to suggest direct liability. The Court granted the application and dismissed the case against the Hospital.