Peluso v. C.R. Bard, Inc.

• Decision Date: 15 January 2015
• Citation: 124 A.D.3d 1027,1 N.Y.S.3d 500
• Parties: Andrew PELUSO et al., Appellants, v. C.R. BARD, INC., et al., Defendants, and Akbar F. Ahmed et al., Respondents.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1027

1 N.Y.S.3d 500

Andrew PELUSO et al., Appellants,

v. C.R. BARD, INC., et al., Defendants,andAkbar F. Ahmed et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 15, 2015.

Kenneth J. Gorman, New York City (Randolph D. Janis of Douglas & London, P.C., New York City, of counsel), for appellants.

Feldman, Kleidman & Coffey, LLP, Fishkill (Marsha S. Weiss of counsel), for respondents.

Before: PETERS, P.J., ROSE, EGAN JR. and LYNCH, JJ.

PETERS, P.J.

Appeals (1) from an order of the Supreme Court (Meddaugh, J.), entered September 16, 2013 in Sullivan County, which granted a motion by defendants Akbar F. Ahmed and Crystal Run, LLP for a directed verdict, and (2) from the judgment entered thereon.

In April 2006, plaintiff Andrew Peluso (hereinafter plaintiff), who suffered from diverticulitis

, underwent colon resection surgery performed by defendant Akbar F. Ahmed, a general surgeon employed by defendant Crystal Run, LLP at a facility operated by defendant Orange Regional Medical Center (hereinafter ORMC). After plaintiff developed an incisional hernia, Ahmed performed a surgical repair on July 17, 2006, by affixing a Kugel mesh patch to the abdominal wall, in a procedure known as an open repair of an incisional ventral hernia. Plaintiff developed a recurrent hernia at the incision site and, in April 2007, required further surgery to remove the patch and repair the recurring hernia, which was performed by another surgeon. Plaintiff and his wife, derivatively, thereafter commenced this action in 2008 alleging, as against Ahmed and Crystal Run (hereinafter collectively referred to as defendants), as relevant here, medical malpractice related to the July 2006 surgery.¹

At trial, plaintiffs testified and called as witnesses Ahmed and a general surgeon, David Befeler, who had examined plaintiff and reviewed his medical records. Defendants also called Ahmed as a witness, along with their own expert, Paul Reichman, a general surgeon who had reviewed plaintiff's medical records. At the close of proof, Supreme Court reserved decision on defendants' motion for a directed verdict, and the case went to the jury. After the jury deadlocked, the court declared a mistrial and, in a written decision and order, granted defendants' motion for a directed verdict, finding that plaintiffs had failed to present competent, nonspeculative evidence that Ahmed committed medical malpractice when he repaired plaintiff's incisional hernia

. The court thereafter issued a judgment dismissing the complaint as against defendants. Plaintiffs now appeal from both the order and the judgment.

Supreme Court properly granted defendants' motion for a directed verdict based upon plaintiffs' failure to establish a prima facie case of medical malpractice. "A directed verdict pursuant to CPLR 4401 is appropriate when, viewing the evidence in a light most favorable to the nonmoving part[ies] and affording such part[ies] the benefit of every inference, there is no rational process by which a jury could find in favor of the nonmovant[s]" ( Hytko v. Hennessey, 62 A.D.3d 1081, 1083, 879 N.Y.S.2d 595 [2009] [citations omitted]; see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 [1997] ; Dumas v. Adirondack Med. Ctr., 89 A.D.3d 1184, 1185, 932 N.Y.S.2d 230 [2011], lv. denied 18 N.Y.3d 807, 2012 WL 539357 [2012] ; Siegel, N.Y. Prac. § 408 at 715 [5th ed. 2014] ). To establish a prima facie case of medical malpractice, plaintiffs were required to submit "expert testimony that there was a deviation from accepted standards of medical care and that such deviation was the proximate cause of the injury" ( Hytko v. Hennessey, 62 A.D.3d at 1084, 879 N.Y.S.2d 595 ; see James v. Wormuth, 21 N.Y.3d 540, 545, 974 N.Y.S.2d 308, 997 N.E.2d 133 [2013] ; Dentes v. Mauser, 91 A.D.3d 1143, 1144, 937 N.Y.S.2d 409 [2012], lv. denied 19 N.Y.3d 811, 2012 WL 3930665 [2012] ; Caruso v. Northeast Emergency Med. Assoc., P.C., 85 A.D.3d 1502, 1504, 926 N.Y.S.2d 702 [2011] ). "Allegations of malpractice that are based upon speculation or unsupported by competent evidence are insufficient to establish a prima facie case" ( Dentes v. Mauser, 91 A.D.3d at 1144, 937 N.Y.S.2d 409 [internal quotation marks and citation omitted]; see DeLorenzo v. St. Clare's Hosp. of Schenectady, N.Y., 69 A.D.3d 1177, 1179, 892 N.Y.S.2d 678 [2010] ).

Plaintiffs' medical malpractice claim, as narrowed at trial, was that Ahmed failed to properly secure the patch to plaintiff's abdominal wall during the surgery to repair his incisional hernia

, causing plaintiff further injuries, including scars, adhesions and recurring hernias requiring additional surgeries. At trial, the testimony of the three medical witnesses regarding the accepted procedures for this surgery was consistent in all material respects. The disputed factual issue was whether Ahmed followed or deviated from those procedures and whether the subsequent recurrence of the incisional hernia and adhesions was attributable to the deviation. Ahmed testified that, after plaintiff developed an incisional hernia following the colon resection surgery, he performed open, rather than laporoscopic, surgery to repair the hernia by cutting through the incision site and removing defective tissue and adhesions. Both Befeler and Reichman agreed that this open procedure was appropriate. To protect the incision and keep the internal organs inside the abdomen and allow the incision to heal, Ahmed described how he affixed a two-sided Kugel mesh patch to the abdominal wall by tacking quadrant sutures in four places. By design, one side of the patch was smooth and nonadherent and faced the intestines and internal organs, while the other side was mesh and rough and designed to adhere to and promote growth to the inner abdominal wall, which was expected to grow and attach to the mesh patch. Both Behler and Reichman agreed that this was the correct patch to use for this repair and that it was designed to be affixed in this manner. The surgeons all agreed that the patch should be affixed using two rows of tacks about one centimeter apart along the edge, and that the patch must be checked after the tacks are inserted to be sure that there are no gaps allowing...