New York Office Secures Defense Verdict for Major NYC Hospital in Medical Malpractice Case

New York, N.Y. (March 23, 2023) – New York Trial Partner Jennine A. Gerrard recently obtained a defense verdict on behalf of a major New York City hospital in a medical malpractice case in which the plaintiff claimed to suffer from constant and painful electrical shocks after the surgical implantation of a life-saving defibrillator device.

In this matter, the 61-year-old plaintiff filed suit in the Supreme Court of New York, New York County, alleging that the implantation of an automated implantable cardioverter defibrillator (AICD) device by a cardiac electrophysiologist was done improperly. The plaintiff claimed that he suffered from 500-600 electric shocks from the device that lasted for 20 days before he underwent a lead revision. Some of the shocks the plaintiff claimed to have received were allegedly sufficient to lift him into the air, despite the fact that the plaintiff's size and the laws of physics would make this impossible. 

The defense argued that plaintiff’s implantation was without complications, and in all respects was performed within the standard of care. Ms. Gerrard was able to show that the defibrillator never sent shocks to the patient, and further argued that the plaintiff’s testimony regarding electric shocks was probably caused by a simple fear of the device, as the plaintiff was avoiding electrical appliances, water, and magnets while at home. The plaintiff claimed that while suffering from the alleged shocks, he left telephone messages at the hospital for a week but did not call 911 or follow his discharge instructions to return to the emergency room if he had any issues.

Seven days after his surgery, the plaintiff called 911 and went to another hospital, where he made completely different complaints to both the paramedics and the attending physician, both of whom were subpoenaed as trial witnesses to attack the plaintiff's credibility as to what his actual complaints were (i.e., normal post-surgical chest pain).

On the eve of trial, the plaintiff attempted to change his alleged departure to a non-surgical claim. Ms. Gerrard defeated this attempt with a motion in limine, arguing that the case had been pending for six years, and the plaintiff had never put the defendant on notice of this new theory, thus causing irreparable prejudice.

Takeaway

The defense strategy was centered around what the plaintiff failed to show at trial. The plaintiff retained an expert who had no experience with surgery, despite that being the focus of their claim. Furthermore, there were numerous family members present in the courtroom who had supposedly witnessed the plaintiff's “shocks,” but not one took the stand or explained why they did not call 911 at any point after the plaintiff's surgery. Ms. Gerrard noted that the defense simply wanted the truth to come out and, for that reason, had served non-party subpoenas on witnesses who had no interest in the outcome, but nonetheless supported the defense's theory that the shocks were not something the plaintiff could have experienced.

Ms. Gerrard is a member of Lewis Brisbois’ National Trial Team and Healthcare Practice. She has more than 25 years of medical and dental malpractice defense experience and is the incoming Vice-President (presently Secretary) of ABOTA, a national trial lawyer association. Ms. Gerrard sits on the Board of DANY, as a co-chair of the medical malpractice group, and has been a member of the New York Medical Malpractice Defense Bar for her entire career.