Free Legal Forms New York Medical Malpractice Complaint

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ______________

_____________________________________

KEVIN M____ & THERESA M______, Index No.

Plaintiffs,

-against- VERIFIED COMPLAINT

_____________ Health System, Inc.,

______________ HOSPITAL,

SAM SMITH, M.D., JOHN JONES, M.D.

Defendants.

_____________________________________

Plaintiffs, KEVIN M_______ and THERESA M_______, complaining of the defendants herein, by their attorney, SUSAN CHANA LASK, ESQ., respectfully allege the following upon information and belief.

THE PARTIES

1. Plaintiffs, KEVIN M______ and THERESA M________, reside at 20 Whatever Street, Tuxedo, New York.

2. Upon information and belief and at all times hereinafter mentioned, defendant HOSPITAL ("GSH"), located in the County of Rockland, City of Suffern and State of New York, was and still is a corporation duly organized and existing under and by virtue of the laws of the State of New York.

3. Upon information and belief, at all times referred to in this complaint, defendant Health System, Inc. ("HS") at 15 Whatever Road, Marriottsville, MD 21104, was and is owned, operated, managed and controlled GSH.

4. At all times mentioned herein, defendant GSH held itself out as a hospital duly qualified and capable of rendering adequate medical care, treatment and services to the public, and for such purposes hired doctors, nurses and attendants and other personnel.

5. At all times mentioned herein, defendant GSH represented that physicians, residents, interns, nurses, radiologists, technicians and other medical personnel in its employ or on its staff were qualified and capable of rendering emergency, medical, health care treatment, radiological, anesthesiology and surgical services in accordance with good and accepted standards of medical and hospital practice.

6. Upon information and belief, at all times referred to in this complaint, defendant, SAM SMITH,M.D., was a physician licensed to practice medicine in the State of New York.

7. Upon information and belief, at all times referred to in this complaint, defendant SMITH,M.D. held himself out to the general public and, more particularly to the plaintiffs herein, as a board certified specialist in the field of orthopedic surgery. Defendant SMITH was the orthopedic surgeon treating plaintiff on or about October 14, 2002.

8. Upon information and belief, at all times referred to in this complaint, defendant JOHN JONES, M.D. was a physician licensed to practice medicine in the State of New York, engaged in the practice of anesthesiology and was the anesthesiologist treating plaintiff on or about October 14, 2002 .

9. Upon information and belief, at all times herein, defendants SMITH and JONES were affiliated with, members of and employed by defendant GSH as part of its medical staff with privileges to use its facilities.

FACTS

10. On or about October 14, 2002, plaintiff KEVIN M----------- presented himself to defendant SMITH at defendant GSH for rotator cuff shoulder surgery.

11. Defendant JONES was the attending anesthesiologist.

12. During surgery defendants SMITH and JONES were responsible for monitoring Plaintiff's vital signs and ensuring the surgery proceeded without complications.

13. Plaintiff entered the surgery without complications of any kind other than the shoulder problem. Defendants' Pre Admission testing report notes normal breathing and no cough. Defendants' Perioperative Nursing Assesment and Care Plan dated October 14, 2002 at 0940 hours, immediately prior to the surgery, indicate normal vital signs for Plaintiff and no complaints of breathing difficulty or other medical problems. There was no tooth embedded in plaintiff's lung when he entered surgery at defendant GSH.

14. While Plaintiff was under anesthesia and during the surgery, his capped tooth was knocked out with an anesthesia tube that was in his throat.

15. The tooth fell down plaintiff's throat and lodged itself in his lung.

16. According to defendant SMITHS's information to Plaintiff prior to the surgery, the surgery was to take about an hour.

17. The surgery actually lasted 2 hours, from about 9:45 a.m. when Plaintiff presented himself, until about 12:20 p.m.

18. Upon Plaintiff awakening from the anesthesia immediately after the surgery, he had difficulty breathing and was wheezing and gasping for air, had severe eye and head pain, was sweating profusely, had a fever and was vomiting. The Post-Anesthesia Care Unit Record, dated October 14, 2002, at "Anesthesiologists' Observations" notes complications and is signed by defendant JONES.

19. Plaintiff's complications were immediately made known to Defendants, including nurses on staff of defendant GSH, all acting within the scope of their employment and as agents of defendants HS and GSH.

20. Defendant SH'S nurses told plaintiff his complications were a natural result of the anesthesia and sent plaintiff home with instructions to take Advil, 600 mgs.

21. Plaintiff's condition worsened from October 14 to 17. He could not eat nor take his pain medication without vomiting, was sweating, had a fever and chills, could not sleep nor breathe without wheezing and suffered severe headache and eye pain.

22. On October 15, 2003, defendant SMITH called plaintiff and plaintiff's wife, plaintiff THERESA M______, described his symptoms. Defendant SMITH assured her that the symptoms were a result of the anesthesia and would subside in 48 hours.

23. On October 17, 2002, at about 9:55 a.m., Plaintiff returned to Defendant SH's emergency room complaining of lung problems, difficulty in breathing, fever, and cough.

24. Defendant SH's emergency room staff, acting within the scope of their employment and as agents for defendant SH, had Plaintiff wait 2 hours before examining him. At about 12:15 p.m., lung x-rays were taken. An hour later, defendant SH's emergency room staff failed to treat plaintiff; making it a full three hours he was waiting in the emergency room is a serious condition.

25. Defendant GSH's ER department records dated October 17, 2002 state at 12:15 p.m. the chest x-ray reveals a foreign body in the right bronchus, a tooth.

26. Because plaintiff's condition was acute, he left the emergency room at about 1:30 p.m. to visit defendant SMITH's office for medical attention. Defendant SMITH directed Plaintiff to visit his primary doctor, Dr. M____, who in turn called defendant SH and discovered a tooth was lodged in plaintiff's lung. Dr. Model placed plaintiff on a nebulizer and returned him to defendant SH's emergency room via ambulance.

27. Defendant SH admitted Plaintiff on October 17 and on October 18 performed a flex bronchoscopy through plaintiff's nostril; however, that attempt was futile and Plaintiff was scheduled for a rigid bronchoscopy under anesthesia.

28. Plaintiff was diagnosed with aspiration pneumonia as a result of the tooth embedded in his right middle lobe of his bronchus.

29. While admitted at defendant SH, Plaintiff was prescribed Tylenol with codeine, #3 for pain and placed on a nebulizer to assist his breathing. Plaintiff suffered blood shooting from his nose, fever, sweats, chills and difficulty breathing.

30. On October 19, 2002, plaintiff underwent thoracic surgery/rigid bronchoscopy with steroids administered during surgery to remove the tooth from his lung at defendant SH. He was prescribed various pain medications, including ambien 5 mg after the surgery.

31. From October 19 through about October 31, Plaintiff had difficulty breathing, difficulty sleeping, was nauseous, had mood swings from the steroids prescribed after surgery, suffered headaches, stomach pain and was vomiting blood.

AS AND FOR A FIRST CAUSE OF ACTION: MEDICAL MALPRACTICE

32. Plaintiffs repeat and reallege each and every allegation in paragraphs "1" through "31" with the same force and effect as though fully set forth herein.

33. Defendants, their agents, servants or employees represented themselves to be competent to perform or render all professional work, labor, services, treatments and tests that were to be rendered to Plaintiff.

34. Defendants, their agents, servants or employees represented that they had the skill, knowledge and ability generally possessed by persons specializing in such type of treatment and practicing their profession in and about Suffern, New York in the performance of tests and all diagnosis, preoperative, operative and postoperative procedures.

35. On or about October 14, 2002, Plaintiff employed Defendants, for compensation to render surgical and anesthesia services at defendant GSH for shoulder arthoscopy.

36. On or about October 17, 2002, Plaintiff employed Defendants, for compensation to render emergency room treatment at defendant GSH for complications after the shoulder arthoscopy.

37. On both dates, Defendants by their agents, servants or employees examined and undertook medical care of the Plaintiff.

38. During the course of Plaintiff's treatment by Defendants, their agents, servants or employees on both dates, Defendants failed to discover a tooth lodged in Plaintiff's lung that remained there after the initial surgical procedure despite Plaintiff's post-surgery complications complained of herein above.

39. Defendants, their agents, servants or employees carelessly and negligently failed to diagnose Plaintiff's injury and complaints, failed to discover the tooth in his lung and allowed it to remain within his lung.

40. The tooth remained within Plaintiff's lung without the knowledge or consent of Plaintiff, and without any negligence or lack of care on his part.

41. That in rendering services to Plaintiff, Defendants violated their duty to him and were negligent in among other things, in carelessly, negligently, wrongfully and improperly failing to examine Plaintiff during and after the surgical procedure; in failing to properly diagnose the proper course of treatment for his post-surgical injury he complained of immediately after waking up from anesthesia; in failing to use reasonable care in performing the customary and necessary techniques for the surgery of Plaintiff and administering anesthesia; in failing to properly x-ray Plaintiff's chest when he initially and subsequently complained of complications; in failing to extract and discover the foreign and infectious body from Plaintiff's lung on October 14, 2002; in failing to attend to Plaintiff's needs in a timely manner, specifically after the surgery when he complained, on October 15, 2002 when defendant SHUREN was again made aware of the complications and in the Emergency Room on October 18, 2002; in failing to take all medically recommended precautions; in not performing all necessary tests; in negligently recording the data during surgery; and in otherwise being careless and negligent.

42. That as a result of the violation of duty, negligence, wrongful acts or omissions of the Defendants in the scope of their authority, Plaintiff became sick, sore, lame and disabled and further sustained severe, serious and permanent injuries.

43. That Defendants' negligence was the proximate and foreseeable cause of Plaintiff's injury.

44. That the doctrine of res ipsa loquitor is applicable in this action in that at all times hereinafter mentioned, Plaintiff was under the medical supervision of the Defendants and a patient's tooth is not ordinarily knocked out during shoulder surgery in the absence of someone's negligence; the injury must have been caused by an agency or instrumentality in the operating room which was within exclusive control of Defendants.

45. Plaintiff was under general anesthesia and could not have contributed to the injury, and evidence of cause of injury is more readily available to Defendants than to Plaintiff.

46. If Defendants had used reasonable care in the performance of their treatment, Plaintiff would not have sustained serious and permanent injury.

47. That Plaintiff was free from contributory negligence.

48. By reason of the carelessness and negligence of Defendants, Plaintiff for a period from October 14, 2002, to October 19, 2002, was allowed to and did remain in ignorance of the carelessness and negligence of Defendant. From October 14 through about October 31, 2002, Plaintiff suffered two painful surgical procedures in attempts to remove the tooth and sickness as complained of herein above.

49. By reason of the wrongful, negligent and careless acts of the defendants in failing to properly diagnose and treat the plaintiff and knocking out and leaving a tooth in the plaintiff's lung, the plaintiff was rendered sick, sore and disabled and was caused great pain, inconvenience, mental and physical agony, suffered and still suffers and will continue to suffer great physical pain, inconvenience, mental and physical agony, and has suffered and sustained serious and permanent injuries.

50. By reason of the foregoing, Plaintiff was obliged to and did spend sums of money in endeavoring to cure and regain his health.

AS AND FOR A SECOND CAUSE OF ACTION: LOSS OF CONSORTIUM

51. Plaintiffs repeat and reallege each and every allegation in paragraphs "1" through "50" with the same force and effect as though fully set forth herein.

52. At all times herein, the plaintiffs were husband and wife, and as a spouse, the plaintiff, THERESA MCDEVITT, was entitled to the services and society of the injured Plaintiff and was responsible for the care, maintenance and medical expenses of the injured Plaintiff.

53. By reason of the foregoing, the injured plaintiff's spouse was deprived of the services and society of a spouse and did expend money for expenses.

54. As a result of the foregoing, this plaintiff has been damaged in a sum in excess of the jurisdictional limits of all lower courts which would otherwise have jurisdiction.

WHEREFORE, Plaintiffs demand judgment for compensatory and punitive damages against the Defendants on the first cause of action in an amount of $500,000.00 and the second cause of action in an amount of $200,000.00, together with costs and disbursements of this action.

Dated: New York, New York

February 4, 2003 __________________________________

SUSAN CHANA LASK, ESQ.

LAW OFFICES OF SUSAN CHANA LASK

853 Broadway, Suite 1516

New York, NY 10003

( 212) 358-5762

CERTIFICATE OF MERIT

SUSAN CHANA LASK, ESQ., the undersigned, an attorney admitted to practice in the Supreme Court of the State of New York, County of Suffern, states that I am the attorney for the plaintiffs in the within action. I have reviewed the facts of this case and have consulted with at least one physician who is licensed to practice in this State or any other state and who I reasonably believe is knowledgeable in the relevant issues involved in this action, and I have concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of this action.

Dated: New York, New York

February 4, 2003 __________________________________

SUSAN CHANA LASK, ESQ.