Senior Trial Partner Rosaleen T. McCrory and Partner Samantha E. Shaw successfully obtained a Defense Verdict in a case involving a then 58-year-old female, who underwent a colonoscopy/polypectomy at a New York City hospital, which was part of a live broadcast for an annual gastroenterology association conference. The procedure was performed by a visiting, world renowned endoscopic specialist who obtained special privileges to perform the procedure at the hospital for the conference. Plaintiff ultimately suffered a perforated ascending colon, a complication of the procedure. A repair was effectuated, and plaintiff subsequently required a hemicolectomy due to the resected polyp being positive for malignancy.
Between a pre-answer motion to dismiss and a motion for summary judgment made after the completion of discovery, MCB successfully had causes of action and claims sounding in fraud and deceit, violation of the Education Law and violation of the General Business Law, negligent credentialing and all direct claims of medical malpractice against the hospital dismissed. The matter proceeded to trial against the hospital only for claims of vicarious liability for the co-defendant physicians who remained parties to the action and lack of informed consent for both the procedure and to live broadcast the procedure.
As the perforation was a known risk of the procedure, the trial focused largely on informed consent. Ms. McCrory established that the plaintiff had informed consent discussions with various providers in the weeks before the procedure as well as on the day of the procedure, she clearly knew that the procedure was being live broadcast, and she signed several Consent forms for the procedure and the live broadcast. Ultimately, a defense verdict was rendered with the jury finding that plaintiff was aware of the live broadcast and that surgery was an alternative option but that a reasonable person would have chosen a polypectomy via colonoscopy as was performed here.