Directed Verdict in New York County

On November 13, 2013, HPM&B received a directed verdict in the Supreme Court, New York County, on behalf of a urologist affiliated with a major academic center in Manhattan.

Plaintiff had presented to the urologist for erectile dysfunction following a prostatectomy.  The patient failed medical therapy, following which the defendant recommended the placement of an inflatable penile prosthesis (IPP).  Following the placement of the IPP, the patient developed a scrotal hemotoma which was aspirated.  Cultures at the time were negative.  The plaintiff then developed a fever and drainage, and a subsequent culture revealed the presence of Group B Streptococcus which the defendant physician thought was a contaminant as opposed to an infection.  The patient’s wound, however, periodically continued to drain fluid over the next several months.  The implant was eventually removed months later for both chronic pain and the presence of an infection.  At the time of the explant, a new IPP was not placed.

Defendant was represented by HPM&B Partner Vincent L. Gallo.  At trial, plaintiff, a physician and an attorney, claimed that he had constant drainage and pain for several months before his explantation, all of which were ignored by the defendant physician.  Plaintiff’s expert urologist opined on direct examination that the initial culture reports were indicative of an infection, and that the implant should have been removed months earlier.  On cross-examination, plaintiff’s expert conceded that the true infection did not develop until weeks before the explantation, and that there was no departure from the standard of care.

After both sides rested, the court issued a direct verdict in favor of HPM&B’s client on the ground that plaintiff had failed to establish aprima facie case of negligence in this matter.