Wednesday, February 13, 2013

Today At The Court Of Appeals: Orsi v. Haralabatos

Orsi  v. Haralabatos:

In this medical malpractice action, a
4-year-old plaintiff claims that he developed chronic osteomyelitis at some point after surgery to treat a fractured elbow.  At issue, the Second Department reversed and dismissed the claim, concluding that the plaintiff failed to raise a triable issue of fact about whether the defendant’s conduct was a proximate cause of the injuries alleged.

The plaintiff claimed that days after surgery, on March 20, he returned to the hospital with signs of an infection.  He was admitted to the hospital, treated with intravenous antibiotics and released two days later.  At a March 25 follow-up visit with the surgeon, the plaintiff showed no signs of infection.  Nevertheless, the surgeon prescribed a topical antibiotic for use around the pins protruding from the surgical site.  

On April 15, the plaintiff again saw the surgeon and had the pins and cast removed.  At that visit, plaintiff had a blood test, which showed that infection had cleared and X-rays similarly showed no signs of osteomyelitis.  The surgeon did note pus at the site of the wires, but attributed it to irritation from movement and did not prescribe another antibiotic at that visit.  On April 19, the next visit, the surgeon did prescribe further topical antibiotics, but no x-ray was taken and no blood was drawn for re-testing.  The plaintiff then missed three scheduled appointments and next returned on May 4, where an x-ray and biopsy later confirmed that plaintiff had developed osteomyelitis.

The defense argues that the plaintiff was told to return twice a week after the April 19 visit for close monitoring and treatment of the condition.  But, as plaintiff missed the appointments during this critical time, the surgeon was prevented from monitoring and treating the condition, which they claim broke the chain of causation.  By contrast, the plaintiff argues that the surgeons malpractice occurred at the last two visits in April and before the missed appointments, making the missed appointments irrelevant.

Oral argument will be later today, Wednesday, February 13, 2013. The Court streams oral arguments online. To watch them live, you can visit the New York Court of Appeals website on Wednesday after 2:00 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the page.

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