When a patient is injured by medical negligence, it can often be difficult to identify exactly who is responsible for the injury before a lawsuit is filed. Often, multiple health care professionals are involved in a patient’s care. Even after the case is filed, the health care providers may disagree about who is responsible for the plaintiff’s injury. In Elbaum v. Afridi, the New York County Supreme Court recently decided a motion to dismiss a medical malpractice action against an assisting surgeon. Both the plaintiff and the other surgeon involved opposed the motion.
This case arose from plastic surgery the plaintiff received from the defendants. The defendants performed a face lift, a neck lift, and fat grafting on the plaintiff. Dr. Nadia S. Afridi had been the plaintiff’s doctor for about four years and performed other procedures on the plaintiff, including abdominoplasty and liposuction.
Dr. Afridi performed the actual surgery, but she was assisted by another plastic surgeon, Dr. Jeffrey R. Fischman. The plaintiff returned to the office on the day after her surgery without function in some of the nerves on the left side of her face. Dr. Fischman led a repair procedure on the following day, but the plaintiff claimed that there was a permanent injury. She filed suit against both doctors.
Dr. Fischman moved to dismiss the medical malpractice claims against him. He had the support of a board certified plastic surgeon, who argued that Dr. Fischman’s role in the first surgery was limited and that Dr. Fischman had performed within accepted practices. He argued that Dr. Afridi had made both the incisions and the decisions.
Dr. Fischman’s official role was to deliver the anesthesia, but his actual function was much broader than that. He was to show Dr. Afridi how to do certain things. He stated that he made suggestions during the surgery and also made marks with a sharpie. Dr. Afridi had always used a head light, but Dr. Fischman set up transillumination with a light coming from above. He advised Dr. Afridi during the surgery and said he felt free to tell her if he believed she was doing something wrong.
The doctors observed buccal fat during the surgery. They stopped the procedure, and each looked for the ends of severed nerves. They did not see any and proceeded with the surgery. At one point, Dr. Afridi switched back to the head light while working on the left side. Dr. Fischman asked Dr. Afridi to stop when he thought she was going too deep, and she would start the flap again in the right spot.
Dr. Fischman’s expert testified that in his opinion, Dr. Fischman did not depart from accepted plastic surgery standards. Furthermore, it was his opinion that Dr. Fischman’s actions were not sufficient to make him jointly responsible, since he did not supervise, control, or direct Dr. Afridi’s surgery. He did not make any incisions or direct the incisions.
Dr. Afridi offered the affirmation of a different board certified plastic surgeon in support of her opposition. He opined that both doctors were responsible for the results of the procedure, but he also stated that he was not addressing the issue of malpractice as to either defendant. This doctor stated that both defendants “performed the surgery, assisting each other.” In addition to setting forth all of the actions Dr. Fischman took during the procedure, the plaintiff’s expert stated that Dr. Fishchman had acted as a mentor to Dr. Afridi, answering questions and advising her on techniques and where to dissect. He concluded that both doctors had joint responsibility for the results.
The trial court, however, rejected the arguments set forth by Dr. Afridi and the plaintiff. The plaintiff’s submission was supported only by the deposition testimony of the plaintiff and Dr. Fischman. The plaintiff had expressed concerns about Dr. Afridi’s lack of experience with face lifts and asked that Dr. Fischman would supervise and be present for the whole procedure. She was informed he would, and the court found that is what happened.
Dr. Fischman argued that it was undisputed that Dr. Alfridi was acting alone when she created the skin flap on the left side of the plaintiff’s face and identified the buccal fat, which is where the facial nerves are located. No one disputed the opinion of Dr. Fischman’s expert that Dr. Fischman had not departed from the accepted standards of care. Furthermore, Dr. Afridi switched from the transillumination Dr. Fischman had suggested while working on the left side. Although the court noted that using direct visualization was not a departure from accepted standards, it required reliance on the doctor feeling the skin rather than seeing the varying thickness. With this method, only the surgeon who was dissecting could see and feel what she was cutting. These facts, the court found, showed that Dr. Afridi alone “was calling the shots…”
The court found that Dr. Afridi was the primary surgeon in the procedure. Dr. Fischman acted as an anesthetist and assistant. The court found that Dr. Fischman may have made suggestions, but Dr. Afridi made the decisions, one of which likely caused the plaintiff’s injury. The court granted Dr. Fischman’s motion and dismissed the malpractice cause of action against him with prejudice.
In a case like this one, it is reasonable to name both doctors as defendants. While the court found that the facts of this case supported dismissing the claim against the assisting surgeon, slightly different facts could have led to a different result. Although the plaintiff’s claim against one defendant was dismissed, her claim against the other defendant survives, and she still has the potential to recover compensation.
If you have been injured by someone else’s negligence, a skilled New York medical malpractice attorney can identify the appropriate defendants and help you seek the compensation you deserve. Call 1-877-313-7673 to schedule a free consultation with The Law Offices of Nicholas Rose, PLLC.
Elbaum v. Afridi, May 10, 2016, Supreme Court of the State of New York, County of New York
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