Doctors Denied Summary Judgment In Wrongful Death Case Involving the Improper Administration of Anesthesia

Plaintiff’s decedent, a registered nurse, died after undergoing an anesthesia-assisted rapid opiate detoxification (AROD) procedure. The defendants used the drug propofol during the procedure. After the death, a combined action for conscious pain and suffering and wrongful death was filed.

Defendants moved for summary judgment as to the claim for conscious pain and suffering. Defendants submitted an expert affidavit contending that “conscious pain and suffering is not feasible,” as decedent was anesthetized and unconscious for the entire procedure. The court found that the expert’s opinion was “conclusory and speculative” and therefore should be accorded no probative value. Accordingly, the Court found it unnecessary to review the sufficiency of Plaintiff’s opposition.

WIth respect to the claim for loss of earnings, the Court determined that although Defendants established Plaintiff had been disabled from employment from 1997 through the time of the alleged medical malpractice, Plaintiff raised a triable issue of fact as to whether decedent would have returned to work in the future. As such, the case will proceed.

Dmytryszyn v. Herschman, 2012 NY Slip Op 06061 (8/29/12).

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