BSMH wins at trial

Congratulations to Partner Thomas J. Mortati, Esq., who recently obtained a defendant’s verdict in Albany County, New York in a medical malpractice action involving the existence of an alleged foreign body in a wound.

The plaintiff in this medical malpractice action had undergone a total esophagogastrectomy (removal of the esophagus and part of the stomach) for treatment of esophageal cancer at the hospital. During the post-operative care at the hospital, the plaintiff experienced significant infection complications and the plaintiff’s chest wall wound below her breast was opened and later packed with large gauze. The left chest wall surgical wound was allowed to heal via secondary intention (from the inside out or bottom up). She remained hospitalized for about one month following the surgery. Upon the plaintiff’s discharge from the hospital, the Visiting Nurses Association provided wound care to plaintiff on five occasions within the first month involving dressing changes. Subsequently, plaintiff’s husband provided all care and dressing changes to the wound at home which involved multiple daily dressing changes.

A few months post-surgery, plaintiff’s surgeon retired but plaintiff continued to be followed with another surgeon, Mr. Mortati’s client, for care and treatment. Approximately one year after the plaintiff was discharged from the hospital following her surgery, the surgeon now following the plaintiff for follow up care, discovered and removed a piece of gauze from plaintiff’s chest wound.

Plaintiff claimed the gauze that was removed had been inadvertently left in by the Visiting Nurses within the first month of plaintiff’s discharge from the hospital and that the treating physician failed to discover its presence in subsequent examinations during follow up care. Plaintiff alleged that the presence of the gauze in the wound for approximately one year prevented the wound from properly healing, caused fluid to be discharged, caused plaintiff pain and emotional distress and caused her to have to undergo additional surgical proceedings to debride and excise her left chest wall fistula.

The defendant through Mr. Mortati’s effective advocacy maintained that the gauze discovered by the treating physician could not have been left in the wound for a year because it was not present six months post operatively when a surgical debridement of plaintiff’s chest wall was performed nor was it present eleven months post operatively when another debridement was done. Moreover, the physical description of the discovered gauze did not match what would have been expected to have been seen of a gauze left inside a wound for a year. Mr. Mortati also highlighted inconsistencies between plaintiff’s testimony, her journal, and the medical records. Defendant maintained that the gauze was most likely a remnant of a relatively recent prior packing of the wound.

A unanimous jury returned a no cause to all of the defendants.