Appellate Victories

In a case involving an alleged failure to timely diagnose breast cancer, we successfully argued that our client, the patient’s breast surgeon, did not cause the delay in diagnosis and won summary judgment.  Plaintiff subsequently appealed the trial court’s grant of our summary judgment motion. The Appellate Division, First Department affirmed that the trial court properly granted summary judgment to our client. Contrary to plaintiff’s contention, the Appellate Court agreed that the Supreme Court providently exercised its discretion in determining that any alleged departure attributable to our client was not the proximate cause of the plaintiff’s delayed cancer diagnosis. The Appellate Court found that although plaintiff made the follow-up diagnostic appointments prescribed by our client, she cancelled them and did not reschedule them because she lost her health insurance. The Appellate Court agreed with our position that, although aware of the urgency of follow-up tests, and the discovery of a quarter-sized lump in her breast, the plaintiff waited until a year later to seek treatment, a decision that was not attributable to our client. Accordingly, all claims against our physician were dismissed.

In a case involving an alleged failure to diagnose lymphoma, we prevailed in the trial court on summary judgment dismissing all allegations against two of our clients.  The Appellate Division, Second Department subsequently granted our motion which sought to dismiss plaintiff’s appeal on the grounds of failure to timely perfect. In the trial court, plaintiff attempted to submit a second notice of appeal after the expiration of her six-month time period to perfect, asserting that she had the right to do so after we submitted a judgment. We maintained that her time to perfect had automatically expired after the six months and our submission of a judgment to the trial court did not re-start her appeal time. The Appellate Court agreed with our position, holding that a dismissal for want of prosecution acts as a bar to a subsequent appeal as to all issues that were presented on the earlier appeal. The Court also held that although they have inherent jurisdiction to consider such issues, plaintiff did not demonstrate any basis for the exercise of such discretion and accordingly, her appeal from the judgment was dismissed.

Garson & Jakub corrected a miscarriage of justice at the appellate level, wherein the Appellate Court vacated Judgment entered in favor of the plaintiff and reinstated the jury verdict. In this cervical cancer case, the defense elicited expert medical opinion testimony at trial from plaintiff’s subsequent treating gynecologic oncologist concerning the defendant physician’s treatment of plaintiff’s cervical dysplasia. The jury found in favor of Mr. Garson’s client. However, the trial Court granted plaintiff’s post-verdict motion which set aside the jury verdict and entered Judgment for the plaintiff. On appeal, our attorney successfully persuaded the panel that there was more than sufficient evidence presented at trial to support a jury verdict in favor of the defend-ant physician. The Second Department agreed and ordered the jury verdict be reinstated with judgment entered in favor of the defendant and awarded costs against plaintiff.

In another case, we successfully defeated the plaintiff’s appeal of the lower Court’s granting of summary judgment in a case involving the care by internists during the decedent’s twenty-day admission to a nursing home. The plaintiff-appellant argued that his expert’s opinions were based on circumstantial evidence and sufficient to create a question of fact. Our attorney maintained that the plaintiff’s expert’s opinions were based on assumptions and not facts contained within the record. The Appellate Court agreed and affirmed the dismissal finding the plaintiff’s expert’s opinions to be speculative and conclusory in nature. Plaintiff’s Motion for Leave to Appeal to the Court of Appeals was denied.

Garson & Jakub LLP successfully defeated the plaintiff’s appeal of the lower Court’s granting of the defendant surgeon’s motion for renewal of summary judgment based upon a change in the law of the case. The case alleged a delay in diagnosing liver abscesses following a cholecystectomy, which ultimately resulted in death. The plaintiff submitted amended and new expert affirmations in opposition to the renewal motion for summary judgment by the surgeon. The trial court did not consider plaintiff’s “newly discovered” evidence and granted summary judgment. The Appellate Court agreed with our argument that the trial court properly disregarded plaintiff’s renewal arguments, since they were based on evidence previously known at the time of the original summary judgment motion and that the “new” evidence was nothing more than affirmations from newly retained experts.

Noteworthy Verdicts

Fentanyl Intoxication Wrongful Death Trial

Andrew Garson continued his record of successful trial results, obtaining a directed verdict and dismissal of a complex medical malpractice-wrongful death case before Justice Carmen St. George in Suffolk County Supreme Court on September 20, 2023.

Defense Verdict In Brooklyn Brain Damaged Baby Case

On August 2, 2023, Louis Jakub obtained a unanimous defense verdict on behalf of a maternal fetal medicine specialist who plaintiff claimed failed to properly interpret fetal heart tracings, failed to perform a biophysical profile and other testing, and failed to recommend or timely perform a cesarean section.

Defense Verdict in New York

Michael Morris obtained a defense verdict in New York County on June 9, 2023, on behalf of a dermatologist who performed MOHS micrographic surgery on a patient with a cancerous skin lesion on his leg.

Rockland County Verdict

In Rockland County, Michael Morris represented a plastic/reconstructive surgeon who performed a complex post mastectomy reconstruction procedure of a women’s breast. The procedure involved taking tissue from the abdomen to microsurgically reconstruct the breast. Post operatively the patient developed wound healing complications to her abdomen and breast resulting in several surgical procedures and unwanted scarring. On May 2, 2023 the jury found that our client adequately informed the patient of the accepted risks associated with the surgery and did not depart from good and accepted surgical practice.

Two Obstetricians Successfully Defended in a Maternal Death Case

Andrew Garson continued his string of courtroom achievements with a unanimous defense verdict on June 22, 2023, successfully defending two obstetricians and a local hospital center in a maternal death case.

The patient had undergone a Cesarean section due to labor difficulties. She died later that day, due to a cardiopulmonary arrest caused by a blood clot which developed in her legs, then traveled to her heart and lungs, leading to her death. The patient’s attorney contended that defendants had failed to properly evaluate and recognize she was at “extremely high risk’ for fatal clotting. Counsel maintained she was in extremely poor health due to morbid obesity, nutritional deficiencies, suspected cardiovascular problems, as well as the increased risk of clotting due to pregnancy, hormonal changes, and related conditions. Additionally, it was argued that the admission evaluation for clotting problems in pregnant patients was improperly performed, and that defendants violated the hospital’s protocol in this assessment. Plaintiffs’ highly credentialed obstetrical expert testified that the simple measure of prescribing a safe, effective blood thinner medication would have prevented this disastrous outcome. Instead, the patient experienced considerable suffering, comparing her collapse and death to slowly drowning at the bottom of a swimming pool. During closing argument, Counsel asked the jurors to return a minimum of 12 million dollars for the patient’s daughter in a wrongful death claim, and at least 2 million dollars for the patient’s pain and suffering as she recognized her death was imminent.

Surgeon Exonerated in Neurologic Injury Case

Mr. Jakub successfully defended an orthopedic surgeon before a Queens County jury against claims that he caused permanent paralysis and neurologic dysfunction while performing a total hip replacement surgery.

Mr. Jakub’s client performed a right total hip replacement surgery on his patient in July 2012, following which the patient was diagnosed with a “foot drop” and subsequent EMG and nerve conduction studies revealed damage to the popliteal and tibial branches of the patient’s sciatic nerve. The plaintiff, a 68 year old married female is required to ambulate with a brace and cane and her condition was conceded to be permanent.

The case was tried for two weeks before a Queens County jury which unanimously concluded, after only 20 minutes of deliberations, that the surgeon did not depart from accepted standards of practice in the surgery and determined that the nerve damage was in fact attributable to a known risk of properly performed surgery.

Mr. Jakub Presents Lecture to Annual ACOOG Conference

On March 27, 2017 Mr. Jakub presented “The Defendant Doctor and the Deposition: Pitfalls, Opportunities and Practical Advice” at The American College of Osteopathic Obstetricians & Gynecologists Annual Conference held in Palm Springs, California.

The lecture exposed physicians in a high risk medical specialty to the realities of litigation, the questioning of their decision making processes and provided real world insight into the methods in which claims against physicians are built and defended. Mr. Jakub delivered this presentation to several hundred obstetrician-gynecologists from all over the country an then presided over a lively question and answer session which allowed the physicians to gain a further understanding of the true nature of a malpractice deposition and the opportunities such a deposition presents to enhance the doctor’s defense.

Plastic Surgeon Exonerated In Complex Complications Trial

On April 18, 2016, a Manhattan jury returned a unanimous defense verdict in favor of a New York City physician defended by Louis E. Jakub. Mr. Jakub’s client, a renowned plastic surgeon, performed a mastopexy (breast lift) procedure and inserted implants in a 47-year-old female actress and television producer. Post operative breast asymmetry was identified and required two corrective surgeries. The patient then developed multiple infections and a wound breakdown which necessitated surgical removal of the infected implants during a lengthy hospitalization. The patient went on to develop significant pain and motion limitations in her arms due to the build up of scar tissue. Further surgery was performed by another plastic surgeon to relieve the pain and reduce the scarring. At trial, the plaintiff claimed the initial surgery was negligently performed and that a revision procedure was undertaken prematurely which resulted in an infection and wound breakdown. Plaintiff also argued at trial that the surgeon failed to properly advise her of the risks associated with the surgeries and failed to obtain an informed consent

Summary Judgment Motions

Maria Black defended a pain management physician who was alleged to have negligently administered joint injections to the right hip of a 60-year-old nursing assistant for treatment of leg and lower back pain. Plaintiff maintained that the improperly administered injections caused irreversible damage to the sciatic nerve resulting in right foot drop and leaving the patient wheelchair bound. Defendant physician explained that the plaintiff’s contention was an anatomical impossibility since the nerves in the area of the injections, even if injured, could not result in right foot drop. The judge presiding over the case, agreed with the defense position that the proper placement of the needle during the injections was evidenced by intra-operative images captured under fluoroscopic guidance, which eliminated the possibility of any mechanical damage to the nerves outside the region of the sacroiliac joint and granted summary judgment for the defendant physician. Subsequent nerve conduction studies revealed that the plaintiff’s right foot drop was caused by the affects and progression of the neurological disease, ALS (Lou Gehrig’s disease).

Defense Triumphs In Hip Dysplasia Claim Despite Compelling Damages

Andrew Garson successfully defended a local teaching hospital and its former employee, a pediatric resident, in the most compelling emotional circumstances. These claims were brought on behalf of a 4 year old child with hip dysplasia, a malformation of the hip joint, who had undergone multiple surgeries, extended rehabilitation and has a permanent limp and activity limitations. It was argued she would develop disabling arthritis in the joint, requiring multiple hip replacements beginning in early adulthood. Her attorney, one of the most prominent litigators in the nation with numerous multimillion dollar verdicts, argued that this condition should have been diagnosed at the time of the child’s birth. Plaintiff’s theory was that this abnormality developed in the womb, was present but unrecognized at birth, and if timely diagnosed, the child’s extensive injuries, future pain and ambulatory problems would have been averted. At trial, counsel aggressively attacked the credibility and knowledge of Garson’s client, attempting to demonstrate the resident was not adequately trained or competent to recognize this condition and failed to properly examine the infant assigned to her care. It was the defendants’ position that this condition was not in fact present at birth, but developed later as the infant matured. Therefore, there was no negligence attributable to his clients. As the trial progressed, these claims were dismissed. A rewarding outcome in light of the potential damages exposure and sympathetic nature of the case.