2nd Dept.: Clavicle Fracture During Arthroscopy Gets Res Ipsa Treatment

Plaintiff had an arthroscopic subcromial decompression of the right shoulder. She said she thought her post-op pain was normal, but after four days returned to the surgeon. On the 16th post-op day, an x-ray showed a fractured clavicle. Summary judgment motions were made in the ensuing medical malpractice case. The Appellate Division ruled that there were triable issues of fact regarding liability under the doctrine of res ipsa loquitor. 

Swoboda v Fontanetta (September 16, 2015)

AZ Div. 1: Plaintiff Can Cross Standard of Care Expert on Personal Practice

The med-mal plaintiff claimed that the defendant colorectal surgeon should have called her referring gynecologist to discuss the result of a repeat ultrasound, instead of just faxing the report. The surgeon’s standard-of- care- expert testified that the call was not required. At deposition, he conceded it was his personal practice to make the call if there were significant changes in the lesion. At trial, the court ruled that testimony about the expert’s personal practice was irrelevant.

The Court of Appeals disagreed and ordered a new trial. The court noted that the evidence was relevant to assist the jury in its “factually intensive determination” and to assess the expert’s credibility.


Jaynes v McConnell (Sept. 15, 2015)

2nd Circuit: Medicaid Prosecutor Owes Dentist Millions for Using Misleading Spreadsheet

A Brooklyn dentist was investigated for Medicaid fraud. When they presented the case to the grand jury, the prosecutor and investigator presented a spreadsheet summary of billings. The spreadsheet made it look like the dentist billed the same procedure multiple times on a single patient. But they left out the tooth number associated with each procedure. Had they included the tooth numbers, it would have been apparent that the procedure was performed on multiple teeth and the billing was per tooth.

By the time the dentist was acquitted, his professional life lay in ruins. He sued the prosecutor and investigator for violating his constitutional rights by knowing use of false evidence. The jury found in favor of the dentist, and the U.S. District Court awarded $4,624,946 compensatory and $100,000 punitive damages.

The Second Circuit held that there was no qualified immunity for the prosecutor because it was settled that the knowing use of false evidence was an actionable deprivation of constitutional rights. The court also upheld the District Court’s finding that that the knowing omission of the tooth numbers, so as to make the spreadsheet misleading, could qualify as false or fraudulently altered evidence.

Morse v Fusto (September 11, 2015)