Summary Judgment Awarded in New York County

In September 2015, following extensive briefing and oral arguments, the New York County Supreme Court granted a motion for summary judgment dismissing a medical malpractice action against an individual physician and major medical institution. In that action, it was alleged that the physician had negligently failed to remove a surgical clip during a robotic prostatectomy. Plaintiff claimed that the clip migrated to his bladder, caused urinary incontinence and required him to undergo further surgical procedures. On the strength of an expert affirmation, HPM&B partner James Navarro argued that the surgical clip was intended to be permanently left in the patient’s body, and migration of a surgical clip was a known risk of using a clip. The Court found that defendants had prima facie established their entitlement to summary judgment and adopted defendants’ arguments in finding that plaintiff had failed to raise an issue of fact. Significantly, the Court held that plaintiff’s expert was unqualified as a matter of law to comment on the performance of the robotic prostatectomy at issue. It also rejected the substance of plaintiff’s expert affirmation as conclusory in nature. Accordingly, the action was dismissed in all respects.