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In a case of first impression in New York state, a Brooklyn judge has ruled that evidence of the filing of multiple malpractice claims against a doctor does not establish that his hospital was negligent for renewing his credentials. “This Court is forced to conclude that the evidence adduced of malpractice claims without more did not sustain this jury’s verdict,” Justice Herbert Kramer held in setting aside a jury’s finding of negligence on the part of Brooklyn’s Lutheran Medical Center, in Ortiz v. Jaber, 9595/97. “Even had the jury been permitted to hear that a given claim was ‘settled’ or ‘closed with no payments made,’ the jury would not have been able to draw any inferences from this information because a settlement is not probative of any matter sought to be established by the underlying claim.” In 1997, plaintiff Elba Ortiz went to her obstetrician-gynecologist, Dr. Ahmad Jaber, for pain resulting from ovarian cysts. Ortiz consented to undergo an operative laparoscopy to remove the cysts, typically an outpatient procedure. After initiating the laparoscopy, Jaber encountered scar tissue from earlier operations, which required him to perform a more invasive laparotomy, which entailed incising the abdominal wall. During the operation, Jaber obstructed Ortiz’s ureter, the long, narrow duct that conveys urine from the kidney to the bladder, according to her attorney, Jeffrey Block. The occlusion of the ureter resulted in urinary continence and multiple corrective surgeries, none of which stemmed the problem. Ortiz suffered from resulting depression, for which she has received psychiatric medication and treatment, including electric compulsive therapy. “She’s totally disabled,” said Block, a partner at Block & O’Toole. Ortiz and her co-plaintiff husband, Brooklyn state Assemblyman Felix Ortiz, filed a malpractice against the doctor and a negligence claim against the hospital. The couple settled the malpractice action against Dr. Jaber for $1 million, the amount of his insurance coverage. The claim against the hospital initially proceeded before Brooklyn Supreme Court Justice David Schmidt. Holding that a hospital could not be liable for the negligence of a doctor in the treatment of his private patient, Schmidt dismissed all claims against Lutheran Medical Center except one, according to Andrew Garson, the medical center’s attorney. The remaining cause of action alleged negligence on the part of the hospital for “failing to appropriately review an attending physician’s credentials before renewing his staff privileges,” according to Kramer’s decision. Either 17 (according to Garson) or 21 (according to Block) malpractice actions had been initiated against Jaber at the time of his application for recertification in April 1997, approximately five months before Ortiz’s operation. The plaintiffs contended, among other things, that the hospital failed to use reasonable care in reviewing the application, both violating the state’s Public Health Law and failing to follow its own procedures. “The primary evidence produced by the plaintiffs in support of these claims was the fact that there were a certain number of malpractice cases filed against Dr. Jaber,” wrote Kramer. “They argued that the hospital should have known about and investigated every claim as required in its by-laws and that the gross number of cases” — either 17 or 21 — “without more, demonstrated that the hospital was derelict in its duty.” The chairman of the hospital’s obstetrics/gynecology department, who was responsible for evaluating Jaber’s application, did not know of as many as eight of the malpractice claims, Block said. Because the “vast majority” of the cases were “settled, discontinued, withdrawn, dismissed or closed,” Kramer held a hearing to determine the evidential value of claims that “never ripened.” “[S]ince a complaint in a malpractice action does not — as the jury was told more than once — signify that the doctor was negligent, there is no evidence linking that so-called negative health care outcome to any act or omission of the physician,” the judge concluded. “Thus there was no testimony in this case to sustain the claim that it was unreasonable for the hospital to conclude that Dr. Jaber was incompetent based upon the fact that malpractice claims were made against him.” Kramer set aside the jury’s finding of liability on the hospital’s behalf, and dismissed the complaint. Block said his client intends to appeal. Joshua Cohen, Garson’s partner at Garson, Gerspach, DeCorato & Cohen, oversaw the drafting of the post-trial motion. “The only two things that were presented in court were that [Dr. Jaber] had a number of claims brought against him and that the hospital wasn’t aware of a number of [those] claims,” Cohen said. After establishing that the hospital was indeed aware, the only remaining evidence of liability was the sheer number of claims. “The mere commencement of a malpractice action is proof of nothing,” Cohen added. “It is a mere allegation.”

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