GIANCARLO v. Aaron B. Hoffman, M.D., University at Buffalo Surgeons, Inc., Nathan Johnson, M.D., University at Buffalo Otolaryngology, Inc., and Kaleida Health, doing business as Buffalo General Hospital, Defendants–Respondents. (2018)

MEMORANDUM AND ORDER

In this medical malpractice action, Carlos J. Kurek, M.D., Wendy P. Ouellette, C.R.N.A., and Maple–Gate Anesthesiologists, P.C. (defendants) appeal from an order that, inter alia, denied their motion for summary judgment dismissing the complaint and cross claims against them.  We affirm.  Plaintiff commenced this action seeking damages for injuries that he allegedly sustained as a result of, among other things, defendants' negligent care and treatment, including, inter alia, ordering and/or administering Toradol to plaintiff after he underwent a laparoscopic sleeve gastrectomy.  After that surgery, plaintiff developed complications, including internal bleeding and a perforation in his stomach lining near the surgical staple line, which led to two additional surgeries and an extended hospital stay.

We reject defendants' contention that Supreme Court erred in denying their motion.  In support of their motion, defendants submitted, among other things, the deposition of plaintiff's surgeon, defendant Aaron B. Hoffman, M.D., who testified that Toradol was contraindicated in laparoscopic sleeve gastrectomies because it can lead to complications including bleeding and gastrointestinal perforation.  Hoffman opined that the timing and location of plaintiff's complications supported the conclusion that Toradol contributed to plaintiff's bleeding and perforation.  Thus, we conclude that defendants failed to meet their initial burden of establishing that the use of Toradol was within the applicable standard of care “or that any alleged departure [from the applicable standard of care] did not proximately cause the plaintiff's injuries” (Bagley v. Rochester Gen. Hosp., 124 A.D.3d 1272, 1273, 1 N.Y.S.3d 635 [4th Dept. 2015] ), inasmuch as their own submissions raise issues of fact whether they deviated from the applicable standard of care and whether that deviation was a proximate cause of plaintiff's injuries (see Reading v. Fabiano, 137 A.D.3d 1686, 1687, 28 N.Y.S.3d 194 [4th Dept. 2016];  see generally Wilk v. James, 107 A.D.3d 1480, 1484, 967 N.Y.S.2d 259 [4th Dept. 2013] ).  Defendants' submissions also raise issues of fact whether Toradol was not intended by the manufacturer for use in major abdominal surgeries (see generally Abrams v. Bute, 138 A.D.3d 179, 186, 27 N.Y.S.3d 58 [2d Dept. 2016], lv denied 28 N.Y.3d 910, 2016 WL 7364618 [2016] ), and whether, prior to plaintiff's laparoscopic sleeve gastrectomy, defendants were aware of Hoffman's concerns about the use of Toradol during that procedure.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: