Defense Verdict in New York County

Robert B. Gibson, assisted by associate Brendan J. Alt, successfully defended two general surgeons and their private surgical group in a malpractice case which involved alleged improper post-operative management of a ruptured appendix.  The trial spanned 5 weeks and included testimony from 17 witnesses.

The plaintiff, a 58-year-old woman, contended that negligent post-operative care caused her to become septic which ultimately lead to acute respiratory distress syndrome.  Plaintiff’s counsel argued that her client should have been intubated immediately after being discovered in a hypoxic state on post-operative day 4.  The attorney claimed that her client unnecessarily suffered from a prolonged period of hypoxia which caused significant brain damage and an inability to return to work.  There was a pre-trial demand of $6.5 million.

During the trial, the court granted a defense motion to dismiss the action as a matter of law against the general surgeon who performed the appendectomy.  Upon cross-examination of the plaintiff, the defense established that she had a long history of severe alcohol abuse for approximately 30 years.  She had undergone numerous alcohol detoxifications, and those records proved that she had cognitive deficits prior to the medical treatment at issue.

The defense called a general surgery expert who testified that the post-operative treatment was completely appropriate and that there was no delay in intubating the patient.  This expert further explained that the human body utilizes compensatory mechanisms to supply the most vital organs, such as the brain, with oxygen rich blood during periods of hypoxia.  It was established that hypoxia does not always result in brain damage.  The defense put forth uncontroverted testimonial evidence from a neuroradiology expert who opined that there was absolutely no evidence of a hypoxic brain injury on a subsequent brain MRI.  A neuropsychology defense expert who performed testing on the plaintiff concluded that the pattern of test results was consistent with chronic alcohol abuse.  On the last day of trial, the defense called a psychiatry expert who explained that it was medically impossible for the plaintiff to have suffered a hypoxic brain injury because, within weeks after the alleged malpractice, she scored a perfect 30 out of 30 on a Folstein exam – a well-established cognitive test.

On February 29, 2016, the jury rendered a unanimous defense verdict.