Prediletto v. Syed

• Decision Date: 29 November 2018
• Docket Number: 526729
• Citation: 89 N.Y.S.3d 359,166 A.D.3d 1456
• Parties: Francis A. PREDILETTO et al., Appellants, v. Iftikhar Ali SYED, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1456

89 N.Y.S.3d 359

Francis A. PREDILETTO et al., Appellants,

v.Iftikhar Ali SYED, Respondent, et al., Defendants.

526729

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

Calendar Date: October 10, 2018

Decided and Entered: November 29, 2018

The Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of counsel), for appellants.

Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for respondent.

Before: Garry, P.J., Devine, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from an order of the Supreme Court (Buchanan, J.), entered September 26, 2017 in Schenectady County, which denied plaintiffs' motion to set aside the verdict in favor of defendant Iftikhar Ali Syed.

In February 2012, defendant Iftikhar Ali Syed (hereinafter defendant) performed a laparoscopic sigmoid resection on plaintiff Francis A. Prediletto to alleviate his chronic recurrent diverticulitis

. During the surgery, defendant removed a damaged portion of the sigmoid colon and performed a procedure known as an anastomosis to reconnect the healthy portions of the colon. Thereafter, a leak developed at the site of the anastomosis. As a result, Prediletto suffered abdominal and pelvic sepsis, fecal peritonitis and early renal failure. He required multiple additional surgeries and sustained serious injuries. Prediletto and his wife, derivatively, commenced this action asserting, among other things, medical malpractice. Following a two-week trial, the jury rendered a verdict in favor of defendant. Plaintiffs then moved to set aside the verdict. Following oral argument, Supreme Court denied the motion and dismissed plaintiffs' complaint. Plaintiffs appeal.

Plaintiffs first contend that Supreme Court should have granted their motion to set aside the verdict as it was contrary to the weight of the evidence. A verdict may not be set aside on this basis "unless the evidence so preponderated in favor of the moving party that it could not have been reached on any fair interpretation of the evidence" ( Killon v. Parrotta, 28 N.Y.3d 101, 107–108, 42 N.Y.S.3d 70, 65 N.E.3d 41 [2016] [internal quotation marks, brackets and citation omitted]; accord Blanchard v. Chambers, 160 A.D.3d 1314, 1315, 75 N.Y.S.3d 652 [2018] ). In this medical malpractice action, it was plaintiffs' burden to prove that "defendant deviated from acceptable medical practice, and that such deviation was a proximate cause of [Prediletto's] injury" ( Mazella v. Beals, 27 N.Y.3d 694, 705, 37 N.Y.S.3d 46, 57 N.E.3d 1083 [2016] ; accord Gallagher v. Cayuga Med. Ctr., 151 A.D.3d 1349, 1351, 57 N.Y.S.3d 544 [2017] ).

As a preliminary explanatory note, the trial evidence established that two forms of anastomosis may be used in colon resection procedures, depending on anatomical and other considerations. Here, defendant used a side-to-end anastomosis, in which the end of one section is connected to an opening created by the surgeon in the side of the other section, and the "free end," or remaining open end of the second section, is closed off separately. The parties' dispute centered upon whether defendant deviated from accepted standards of practice in testing the anastomosis for leaks during this surgery.¹

Plaintiff's expert, Michael Leitman, a physician and surgeon, testified that the applicable standard of care required the use of both saline solution and pressurized air to test a colon anastomosis for leaks. He stated that air testing should be carried out by using a proctoscope

to inject pressurized air into the colon while the colon is submerged in saline, which would cause air bubbles to appear in the saline if leaks were present. Leitman noted that defendant's surgical notes indicated that defendant had conducted saline testing, but failed to mention any air testing. He further noted that defendant had testified during his deposition that his surgical notes were incomplete and that he had, in fact, conducted air testing by using a syringe to introduce pressurized air into the anastomosis area through the free end of the colon before that end was separately closed. Leitman opined that this method did not comply with the applicable standard of care, and that defendant had deviated from the standards by failing to test the anastomosis with pressurized air, by failing to use a proctoscope for this testing, and by failing to pressurize the bowel under saline during testing to ascertain that the surgical area was leak free. He opined that these deviations were a substantial factor in causing Prediletto's injuries.²

On cross-examination, Leitman stated that the use of a syringe to inject air into the colon was not in itself a departure from the standard of care, but that to do so in a side-to-end anastomosis when the free end of the colon had not yet been closed was inadequate because that closure, too, needed to be tested for leaks. He conceded that defendant had testified that he had separately tested this portion of the colon after closing the opening by squeezing the colon to force air against the closure, and he acknowledged that this method would "theoretically" put pressure on the closure. However, Leitman testified that it would not generate the same type of air pressure available from the use of a proctoscope

. Finally, he acknowledged that anastomosis leaks are a common risk of colon resection surgery and can occur in the absence of malpractice.

Defendant testified that, after creating the anastomosis, he tested it for leaks using an irrigating syringe

. He described the testing procedure that he had followed in detail, stating that, before removing the diseased section of colon and closing the free end where it had been removed, he used a syringe to introduce saline into the bowel through an opening that he had created in the part of the colon that he intended to remove, while watching for leaks in the distended area around the anastomosis.³ He likewise used the syringe to conduct air pressure testing by filling the abdominal cavity with saline, submerging the anastomosis area under the saline and then using the syringe to introduce pressurized air into that area while watching for air bubbles. He testified that he saw no sign of leaks or air bubbles during this process. He further testified that, after completing the testing and closing off the free end of the colon, he tested the new closure for leaks by submerging that part of the bowel in saline, forcing air that remained in the colon against the closure by squeezing with his hands, and watching the closure for air bubbles.

Defendant disagreed with Leitman's testimony that the applicable standard of care required using a proctoscope

, stating that the procedure he followed complied with the standard of care and that a proctoscope did not have the length or the appropriate connection to push air to the location in this surgery. He testified that a sigmoidoscope could be used for this purpose, that he sometimes used one when he was not satisfied with the results of syringe testing, and that his choice as to the manner of testing depended on the location of the anastomosis and other circumstances. In Prediletto's case, defendant said that he chose to use a syringe based upon the location of the anastomosis, which permitted him to see and examine the area during the testing. He did not then conduct additional testing with a sigmoidoscope because he was satisfied with the results of his syringe testing.

Defendant acknowledged that his surgical notes did not indicate that he had used air to test the anastomosis, but stated that this omission was an error. He testified that he remembered carrying out the procedure and was "a hundred percent certain" that he had used both air and saline to test for leaks. He further testified that Prediletto did not show symptoms consistent with an anastomotic leak during the first few days following his surgery. Finally, he stated that anastomotic leaks are a common risk of colon resection procedures and can occur without malpractice, that he regularly performed this procedure, and that he had above average clinical results.

Barbara Brazis, a physician and general surgeon, gave expert testimony on defendant's behalf. She stated that various methods may be used to conduct air testing of a side-to-end anastomosis, depending on such circumstances as anatomical considerations and the preferences of the surgeon. She stated that the standard of care did not require the use of a proctoscope

or a sigmoidoscope in every instance, opining that the location of a patient's anastomosis could limit the available forms of testing as it might not always be feasible to push air upwards from the anus for this purpose. Brazis opined that this anastomosis was located too far from the rectum for use of a sigmoidoscope, and that the method used by defendant – introducing air and saline from above, through the free end of the resected colon, rather than from below – would be the method chosen by many surgeons under those circumstances. Brazis opined that the testing method used by defendant complied with the applicable standard of care. She further opined that defendant's failure to include air testing in the operative note was not a violation of the standard of care, as such notes need not include every detail of the procedure. Brazis testified that an anastomotic leak can develop gradually after surgery even when testing during surgery indicated that there was no leak. She described potential causes for a leak other than malpractice and stated that the existence of a leak does not, without more, indicate that surgery or testing was improperly performed. She opined that the applicable standard of care was to test the anastomosis to the surgeon's satisfaction and did not necessarily require the use of both saline and air.

Plaintiffs question the credentials of defendant's expert and assert that their expert was more highly qualified to render an opinion about the...