Davis v. Taneja
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf appeared as counsel of record in this matter.
What this case was about
John Davis and his spouse sued his doctors for medical malpractice, claiming he was strapped to the operating table before it was bent into position for kidney (partial nephrectomy) surgery, which they said injured him. The defense showed through his medical records and an expert urologist that his skin would have torn if that had happened, and it had not. Because the plaintiffs could not rebut that showing, the trial court dismissed the case and the Appellate Division affirmed.
Gair’s role
The firm represented the plaintiffs, John Davis and his spouse, as appellants in this medical malpractice action. The Appellate Division unanimously affirmed the dismissal of the complaint on summary judgment, so the appeal was not successful for the plaintiffs.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York (Christopher J. Donadio of counsel), for appellants.
Attorneys on this matter
Full opinion
Reproduced from the public court record.
John Davis et al., Appellants, v Samir Taneja et al., Respondents.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York (Christopher J. Donadio of counsel), for appellants.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliot J. Zucker of counsel), for respondents.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered November 20, 2018, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiffs' theory of liability in this action alleging medical malpractice relies on the assertion that plaintiff John Davis was affixed to the operating table before the table was flexed into position in preparation for a partial nephrectomy. Defendants made a prima facie showing that Davis was affixed to the table after the table was flexed, through plaintiff's medical records, which noted that his skin was intact after the nephrectomy. Defendants' expert urologist agreed with defendant doctors' testimonies that the patient's skin would have torn if the table was flexed after the patient was affixed to it (see Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]).
In opposition, plaintiffs failed to raise a triable issue of fact. Plaintiffs' expert did not deny that plaintiff's skin would have been torn if he were affixed to the table before it was flexed, and plaintiffs did not submit evidence addressing the condition of Davis's skin after the surgery. Nor did plaintiffs identify any note in his medical records that indicated that his skin had been damaged. The operative report by Dr. Taneja is insufficient to raise an issue of fact, in light of the testimony that the report only listed the actions that occurred, not necessarily in chronological order, and the fact that the report clearly lists the placement of the Foley catheter out of order (see DeFilippo v New York Downtown Hosp., 10 AD3d 521, 523 [1st Dept 2004]).
We have considered plaintiffs' remaining arguments and find them unavailing. Concur—Friedman, J.P., Webber, Kern, Oing, JJ.