Contact Us for a Free Consultation 914-371-3600

Blog

Medical Malpractice in Action

Posted by Andrew J. Barovick | Oct 21, 2008 | 0 Comments

An all to frequent scenario was played out in New York's Appellate Division, Fourth Department earlier this month, in the case of Bell v. Agarwal , 2008 NY Slip Op 07349 (4th Dept. 2008).  A surgeon peforming abdominal surgery on Ms. Bell, the plaintiff, left a surgical sponge behind, inside the plaintiff, before closing her up and concluding the surgery.  No matter what the other strengths or weaknesses of the case, when it comes to liability, most medical malpractice lawyers would conclude that there is a strong case against the surgeon/defendant Dr. Agarwal, based on these facts.

Dr. Agarwal, however, attempted to extricate herself from the case by claiming, in a motion to dismiss, that: the operating room nurses were responsible for the sponge count during the surgery;  she, Dr. Agarwal, had relied upon their count; the nurses' count must have been mistaken; and therefore, she, Dr. Agarwal, was not at fault.

In declining to dismiss the claims against Dr. Agarwal, the Court found that the plaintiff had raised a sufficient challenge to Dr. Agarwal's moving papers by submitting an affidavit from a medical expert who opined that Dr. Agarwal had been negligent by failing to thorougly check the operative field before closing plaintiff's incision, and had been additionally negligent by failing to notice the sponge, which should have been readily observable to a careful physician.  Dr. Agarwal's motion to dismiss was denied, and the claims against her will proceed, toward trial or a settlement.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

REPRESENTATIVE VERDICTS & SETTLEMENTS:

$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

Menu