| Mirabella v Mount Sinai Hosp. |
| 2007 NY Slip Op 06916 [43 AD3d 751] |
| September 25, 2007 |
| Appellate Division, First Department |
| Grace Mirabella et al., Appellants, v The Mount SinaiHospital et al., Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Richard E. Lerner ofcounsel), for respondents.
Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered October 24,2006, which, in an action for medical malpractice, insofar as appealed from as limited by thebriefs, granted defendants' motion for summary judgment to the extent of finding that nomalpractice was committed during the bariatric surgery performed on April 3, 2001, unanimouslyreversed, on the law, without costs, and such finding vacated.
After the April 3 operation, plaintiff suffered a leak of bowel contents into her abdomen,causing infection and pain and requiring a second operation to repair the leak, which wasperformed on April 5. Defendant surgeon testified at deposition that during the April 3 operation,he did not seem to have any problems with the disposable surgical staplers he used, that hevisually observed that the staples were in place, and that he also performed a leak test usingsaline irrigation with blue dye that confirmed no leaking. The surgeon also testified that duringthe April 5 procedure, he observed that the staples were "closed and firm" on the antimesentericside of the bowel, but that there were no staples at all on the mesenteric side, as there shouldhave been. This caused the surgeon to conclude that there was a "misfiring of the stapler."Indeed, the surgeon also testified, such misfirings, while not common, were known to occur andwere a matter of concern. The motion court, rejecting plaintiffs' argument that the surgeoneffectively admitted that he did not check to make sure that the stapler had fired, and thusviolated the standard of care, found that the visual inspection and blue-dye test satisfied thestandard of care, and that there was no evidence that the staples were not fired, only that they didnot properly close, an unavoidable risk of the surgery. This was error. Notwithstanding evidenceof a history of misfirings and plaintiffs' allegation that defendants used defective surgicalinstruments, nowhere does defendants' expert's affirmation submitted in support of the motiondiscuss the responsibility of either defendant hospital or defendant surgeon to ensure against thepossibility of stapler misfirings. Thus, defendants failed to satisfy their initial burden to make a[*2]prima facie showing of entitlement to judgment as a matter oflaw (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Concur—Lippman,P.J., Mazzarelli, Sullivan, Nardelli and Sweeny, JJ.