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It could be argued that Dr. William Sonstein saved the life of Joseph Salvatore. It could also be argued that while saving the then-16-year-old’s life, Sonstein committed malpractice. But Sonstein, a neurosurgeon, threw away what might have been dispositive evidence and with it, the chance to defend himself against the malpractice claim in court. Calling the lost piece of proof “paramount,” Justice Robert Roberto of Nassau County Supreme Court ruled recently that the neurosurgeon committed spoliation of evidence. As a consequence of that act — whether intentional or not — the judge granted summary judgment for Salvatore. On Feb. 8, the parties are expected to certify the case, Salvatore v. Winthrop University Medical Center, No. 13262-2002, as ready for trial on damages alone. The teen’s lawyers say they are seeking about $5 million. Salvatore has a broken catheter tip permanently lodged in his brain. It was intentionally left there by the doctor after an attempt to relieve swelling inside Salvatore’s skull went awry. “He’s only 20,” said Meta S. Goldman of Manhattan, one of Salvatore’s attorneys. “He’ll be walking around with this for the rest of his life.” Salvatore is also represented by Goldman’s partner, Peter A. Frankel. Sonstein’s lawyer, Rosemary Martinson of Smithtown, N.Y.’s Vardaro & Helwig, declined to talk about Roberto’s decision, which was signed Dec. 23. Lisa K. Lazarus of Manhattan’s Bower Sanger & Lawrence represented Winthrop University Medical Center. She did not return a call for comment. CRANIAL PRESSURE Nearly four years ago, Salvatore suffered a severe head injury when he was hit by a truck while bicycle riding. Brought to Mineola’s Winthrop University Medical Center, he was treated by Sonstein and others. After arriving, it was determined that Salvatore was suffering from a fractured skull, subdural hematoma and swelling on the brain. To relieve the pressure on the brain, the doctor — who was not employed by the hospital but had privileges there — drilled a small hole above the ear in the left side of Salvatore’s skull and inserted a metal bolt. Then, through the bolt, he inserted a catheter to draw off fluid, Roberto wrote. With the bolt, the doctor could control the flow of fluid through the catheter. New catheters typically have the consistence of cooked spaghetti, are extremely pliable and do not break under ordinary usage, one of the doctor’s expert witnesses told the court in an affidavit. At an examination before trial, Sonstein testified that the tip of the catheter broke off while it was inside Salvatore’s skull. An attempt to remove it failed and the medical team decided that because it was lodged in otherwise healthy brain matter, further efforts to retrieve it could injure the teen. Critically, the doctor concedes that he threw away the broken catheter after the operation, meaning neither side could examine it to determine why it broke. Salvatore is seeking about $5 million in damages, Frankel said, mostly for pain and suffering. He emphasized that there is a “very large psychological competent” to his client’s injury. Because of where the small piece of plastic is located, it is capable of migrating under the skull, Frankel said, with the potential of causing an infection or brain damage. Consequently, the teen lives in constant fear that a wrong head movement could be fatal. Goldman added that Salvatore suffers from an impaired memory and cannot hold a job. Both lawyers said there is no way to distinguish Salvatore’s bike collision injuries from those that could be caused by a free-floating piece of plastic inside the skull. DISPOSITIVE MOTIONS In Salvatore’s medical malpractice suit against Sonstein and the hospital, he alleged the doctor failed to properly examine the catheter before using it and/or negligently manipulated it, causing it to break. He also claimed a lack of informed consent. With the case ready for trial, the medical center and the doctor both moved for summary judgment. Claiming spoliation, the plaintiff cross-moved for the same relief. The medical center’s motion was premised on the notion that the doctor was a private practitioner with hospital privileges. Thus, the center itself should not be held liable for malpractice. Roberto denied that application, holding that in a situation like this, where an independent doctor is provided by the hospital or is otherwise apparently acting on the hospital’s behalf, that institution may be vicariously liable for the doctor’s negligence. The judge granted Sonstein’s motion disposing of the informed consent issue. He noted that although Salvatore’s mother testified during discovery that she had never been told of the risks associated with Sonstein’s procedure, she never said she would have withheld consent had she known about those risks. At that same examination before trial, Sonstein said the catheter, which was supplied by the hospital, came in a sterile kit and was apparently in good condition when he unwrapped it and set out to operate on Salvatore. But, the judge noted, in a post-operative report written four days after the procedure, Sonstein had said that after the catheter broke, he looked at it and “it appeared rotted and crumbly, not particularly new in appearance and certainly abnormal.” One expert witness for the prosecution, Dr. Lawrence B. Schlachter, also a neurosurgeon, said during his deposition that if there was nothing obviously wrong with the catheter, as Sonstein said during his own examination before trial, than it must have broken because of improper technique, a departure from good and accepted medical practice. THROWN AWAY Regardless of why it broke, Roberto focused the crux of his ruling on why the doctor disposed of the evidence. Sonstein’s lawyers argued that his efforts, which were performed at the teen’s bedside in the intensive care ward and not in an operating room, saved the boy’s life. One expert noted that in that situation, it is not unusual for a doctor to dispose of broken tubing. A plaintiff’s expert countered that in light of the unusual circumstance, good and accepted medical practice would have been to preserve the remaining part of the catheter for analysis by the hospital, the manufacturer and even the federal Food and Drug Administration. This obligation would have existed, he said, no matter where the surgery was performed. Citing established precedent, the judge wrote, “Where a crucial item is lost, either intentionally or negligently, the party responsible should be precluded from offering evidence as to its condition.” If the evidence was key, he added, the proper sanction is to strike the pleading of the responsible party.

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