FILED: QUEENS COUNTY CLERK 07/16/2018 02:13 PM
`NYSCEF DOC. NO. 117
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`INDEX NO. 705294/2015
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`RECEIVED NYSCEF: 07/16/2018
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`Short Form Order
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`NEW YORK SUPREME COURT - QUEENS COUNTY
`
`Present: HONORABLE KEVIN J. KERRIGAN (cid:9)
`Justice
`
`Part 10
`
`Graciela Terra, (cid:9)
`
`- against -
`
`Plaintiff,
`
`George J. Tsioulias, M.D.,
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`X
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`Index
`Number: 705294/15
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`Motion
`Date: 6/11/18
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`Defendants.
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`X
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`Motion Seq. No.: 3
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`The following papers numbered 1 to 7 read on this motion by
`defendant to set aside the verdict.
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`Notice of Motion-Affirmation-Exhibits (cid:9)
`Affirmation in Opposition (cid:9)
`Reply (cid:9)
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`Papers
`Numbered
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` 1-4
` 5-6
` 7
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`Upon the foregoing papers it is ordered that the motion is
`decided as follows:
`
`Motion by defendant, pursuant to CPLR 4404(a), to set aside
`the jury's verdict on liability against him as being against the
`weight of the evidence and to direct that judgment be entered in
`favor of defendant dismissing the action is granted.
`
`In this medical malpractice action, plaintiff alleges that she
`sustained left femoral neuropathy as a result of the improper use
`of a retractor by defendant Dr. Tsioulias during a laparoscopic-
`assisted colectomy performed by him on December 11, 2012 at Mt.
`Sinai Hospital in Queens County.
`
`It is undisputed that plaintiff was diagnosed with left
`femoral neuropathy - damage to her femoral nerve - following her
`surgery. Plaintiff's sole theory of malpractice is that the injury
`was a compression, or crush, injury caused by the application of
`excessive and prolonged pressure on the femoral nerve by a Balfour
`retractor that Dr. Tsoulias improperly pressed down upon or leaned
`upon during the surgery.
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`Dr. Tsoulias explained, on direct examination, the surgical
`procedure that was performed. The surgery involved the removal of
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`FILED: QUEENS COUNTY CLERK 07/16/2018 02:13 PM
`NYSCEF DOC. NO. 117
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`INDEX NO. 705294/2015
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`RECEIVED NYSCEF: 07/16/2018
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`a portion of plaintiff's colon, which first required raising the
`colon to skin level. In order to do so, the colon had to first be
`mobilized, i.e., freed, from the omentum, which is a blanket of fat
`on the transverse colon, by removing the omentum from the
`transverse colon. This portion of the procedure was done
`laparoscopically. The colon could now be brought to the surface of
`the skin. At that point, Dr. Tsoulias made an abdominal incision in
`the left lower quadrant to access the peritoneum, the abdominal
`cavity, and expose the contents of the abdominal cavity. To allow
`clear access to and visualization of the abdominal contents, Dr.
`Tsoulias used a Balfour retractor, which was placed in the
`incision, opened and locked in the open position to hold the
`incision open. He explained that the retractor he used had blades
`2.5 inches deep and that the retractor would rest on the surface of
`the skin. The colon would then be brought to the surface and
`transected, i.e., cut off from the bowel, with a stapler. Once the
`portion of colon to be sent to pathology was removed, the remaining
`colon was replaced and reconnected to plaintiff's bowel and the
`incision closed. This reconnection is termed an anastomosis.
`
`Dr. Tsoulias explained that in order to perform the
`anastomosis, plaintiff had to be placed into the lithotomy
`position, i.e., with her legs raised onto stirrups so he could
`access her peritoneum, which is the bottom area where the anus and
`buttocks are. Even though the anastomosis is the final phase of the
`procedure, the patient is placed in the lithotomy position prior to
`the start of the surgery.
`
`The laparoscopic portion of the surgery, up to the point when
`the abdominal incision is made for the removal of the colon, could
`take over an hour. The abdominal incision then takes 1-5 minutes to
`perform. When asked how long it takes, in a straightforward
`procedure where no unexpected obstacles are encountered, from the
`time the Balfour retractor is placed, the colon lifted and
`transected, the anastomosis performed and the surgical instrument
`(i.e., the retractor) removed, Tsoulias answered, "It should take
`approximately 15 to 20 minutes. If the colon is mobilized and comes
`easily to the surface, that's approximately what it takes." When
`thereupon asked whether, in this case, the colon easily mobilized
`and came to the surface, he replied, "Yes, it did."
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`None of the foregoing testimony was disputed.
`
`Plaintiff's expert, Dr. David C. Levine, testified that the
`only way plaintiff's femoral nerve could have been damaged was if
`the Balfour retractor were pushed down causing its blades to
`contact and put extreme pressure on the nerve. He opined, "The only
`way this could have happened in this operation was from the
`retractors being pushed down too deeply and too hard during the
`procedure causing extreme pressure on the femoral nerve in the
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`FILED: QUEENS COUNTY CLERK 07/16/2018 02:13 PM
`NYSCEF DOC. NO. 117
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`INDEX NO. 705294/2015
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`RECEIVED NYSCEF: 07/16/2018
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`abdomen where it gives off its branches to the iliopsoas muscle,
`there is no other explanation for it." He came to this conclusion
`based upon his opinion that the femoral nerve runs underneath where
`the incision was made. He stated, "Rlight under the surgical site
`is the iliopsoas muscle, and underneath that muscle runs the
`femoral nerve, and that is exactly where the incision is made,
`where the retractor is made, that's exactly what is deep to the
`area and there is no other cause, no other possible cause." He
`reiterated, "The only way it could have - could be explained by
`normal human anatomy is the Balfour retractor was used in an
`inappropriate manner, it was not kept in proper positioning and it
`caused excessive pressure on the femoral nerve in the abdomen".
`When, therefore, asked what his opinion was "as to whether Dr.
`Tsoulias deviated from the standard of care by allowing the
`retractor blades to come in contact with Miss Terra's femoral
`nerve", Dr. Levine replied that his opinion was that "he did
`deviate from the standard of care with the inappropriate use of the
`retractor which came into contact with the pressure on the left
`femoral nerve" (sic).
`
`However, when asked, "Doctor, can you describe the degree of
`compression necessary to Miss Terra's femoral nerve with the
`retractor that Dr. Tsoulias was using for him to have deviated from
`the standard of care?", Dr. Levine replied, "Yes. The simple act of
`a retractor touching the nerve isn't going to cause damage. It has
`to be a sustained pressure so that the blood supply is cut off. And
`nerves, peripheral nerves after two hours there will be permanent
`damage. So it's a sustained ongoing pressure cutting off the blood
`supply and the cells of the nerve die over a short period of time."
`When thereupon asked the follow-up question, "Now, how long would
`- how long would pressure need to be necessary to sustain the
`damage of this nature?", he answered, "At least one to two hours
`usually, unless it's a massive sudden injury to the thing, but a
`steady pressure from a retractor blade can take an hour or two." No
`massive, sudden injury is propounded. Rather, plaintiff's expert's
`only explanation for plaintiff's injury was that excessive downward
`pressure was placed on the retractor causing the retractor blades
`to contact the femoral nerve with heavy sustained pressure of a
`minimum of one to two hours. However, the unrebutted testimony was
`also that the retractor was only in place for a maximum of 20
`minutes. This unrebutted testimony, combined with Dr. Levine's own
`admission that plaintiff's injury could only have occurred if the
`retractor blades had been pressed down onto the femoral nerve for
`at least 1-2 hours absolutely refutes plaintiff's theory of
`malpractice. Moreover, defendant's counsel, in his closing
`statement, emphasized to the jury that it was undisputed that the
`retractor was only in place for 15-20 minutes whereas plaintiff's
`own expert stated that plaintiff's injury could only have occurred
`if there were sustained pressure on the femoral nerve from the
`Balfour retractor for at least 1-2 hours, thus ruling out
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`FILED: QUEENS COUNTY CLERK 07/16/2018 02:13 PM
`NYSCEF DOC. NO. 117
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`INDEX NO. 705294/2015
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`RECEIVED NYSCEF: 07/16/2018
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`plaintiff's sole departure.
`
`At the close of plaintiff's case, after plaintiff rested,
`defendant moved orally for a directed verdict to dismiss
`plaintiff's malpractice cause of action premised upon the sole
`departure elicited by Dr. Levine. This Court reserved decision on
`the motion. This Court notes, parenthetically, that it reserved
`decision, not because it was undecided on the issue at that time,
`but in recognition of the established common practice of courts to
`do so as being the preferred practice, for reason of judicial
`economy (see, Siegel, NY Practice, 5th ed., §405, Post-Trial Motion
`for Judgment).
`
`The verdict sheet contained one departure question as agreed
`upon by respective counsel for the parties. Question 1 of the
`verdict sheet asked, "Did defendant Dr. George J. Tsoulias depart
`from good and accepted medical practice during the abdominal
`surgery he performed on December 11, 2012 by allowing the retractor
`blades on the Balfour retractor to come into contact with
`plaintiff's femoral nerve?" Question 2 of the verdict sheet asked
`whether this departure was a substantial factor in causing injury
`to plaintiff. The jury was instructed to proceed to Question 2 only
`if it answered "yes" to Question 1, but to proceed no further and
`report to the Court if its answer to Question 1 was "no". The jury
`answered "yes", by a verdict of 5-1, to Question 1, and "yes" to
`Question 2, by the same 5-1 verdict. The jury then went on to award
`$100,000 for past pain and suffering, $402,500 for future pain and
`suffering, $14,710 for past medical expenses, $2,350 for future
`medical expenses, $100,000 for past lost earnings and $50,000 for
`future lost earnings.
`
`CPLR 4404(a) provides that a trial court "may set aside a
`verdict or any judgment entered thereon and direct that judgment be
`entered in favor of a party entitled to judgment as a matter of
`law...where the verdict is contrary to the weight of the evidence".
`Here, the jury's finding that Dr. Tsoulias departed from good and
`accepted medical practice by allowing the retractor blades on the
`Balfour retractor to come into contact with plaintiff's femoral
`nerve, and that such departure was a substantial factor in causing
`injury to plaintiff was clearly against the weight of the evidence,
`and could not have been reached by any fair interpretation of the
`evidence (Taino v. City of Yonkers, 43 AD 3d 401 [2'd Dept 2007];
`Evers v. Caroll, 17 AD 3d 629, [2nd Dept 2005]; Schiskie v. Fernan,
`277 AD 2d 441 [2'd Dept 2000]).
`
`Accordingly, the jury's verdict is set aside and judgment
`shall be entered in favor of defendant dismissing the action.
`Defendant may enter judgment accordingly. Consequently, that branch
`of the motion for a directed verdict pursuant to CPLR 4401, upon
`which this Court originally reserved decision, is moot, having been
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`FILED: QUEENS COUNTY CLERK 07/16/2018 02:13 PM
`NYSCEF DOC. NO. 117
`
`INDEX NO. 705294/2015
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`RECEIVED NYSCEF: 07/16/2018
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`subsumed into defendant's motion pursuant to CPLR 4404.
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`This Court thus need not reach, and will not determine, the
`remaining arguments of defendant to set aside the verdict.
`
`Dated: June 6, 2018
`
`KEVIN J. KERRIGAN, J.S.C.
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`FILED
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`JUL 16 2018
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`COUNTY CLERK
`QUEENS COUNTY
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