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In a rare successful motion for summary judgment by a plaintiff in a medical malpractice action, a Manhattan judge held a surgeon liable for leaving behind a needle, which remains lodged between the plaintiff’s liver and right kidney. Christopher Faas “has submitted expert medical evidence conclusively establishing that Dr. [Douglas] Heymann departed from accepted standards of medical care in losing the needle, and that Dr. Heymann’s negligence proximately caused Mr. Faas to have a needle lodged in his liver,” Supreme Court Justice Eileen Bransten held in Faas v. Heymann, 102971/03. The judge added that Faas could not have been contributorily negligent, given that he was under anesthesia at the time the needle was lost. Though Bransten granted Faas’ motion for summary judgment in his claim against Heymann, she dismissed competing summary judgment motions filed by and against Heymann’s co-defendants, fellow surgeon Joseph Iraci and Manhattan’s Lenox Hill Hospital, where the operation took place. Heymann first operated on Faas in March 2001, when he removed stones from Faas’ bile duct. A few months later, Faas began to experience discomfort, and, in October 2001, Heymann performed laparoscopic surgery to repair an incisional hernia. That’s when things went wrong. Towards the end of the operation, a needle detached from its suture and fell into Faas’ abdomen. Heymann called another surgeon, co-defendant Iraci, to help look for it. Six hours after the operation began, and four-and-one-half hours after the needle was lost, the doctors gave up and closed the incision, according to Faas’ attorney, Manhattan-based solo practitioner Anthony T. DiPietro. “While they were searching the needle had migrated up to the upper part of his abdominal cavity,” said DiPietro. The needle lodged behind Faas’ liver, where it remains. Doctors have determined that removing it presents more risks than letting it remain. “In order to remove it, they’d have to perform a laparotomy and remove his intestine and search every inch of [it] for this needle,” said DiPietro. “Every time he feels a pinch in his belly, he’s wondering whether this needle is perforating one of his organs,” DiPietro added. The attorneys for the defense, Michael E. Gallay, John L. A. Lyddane and Tomachukwu N. Acholonu of Martin Clearwater & Bell, could not be reached for comment. Faas initiated a medical malpractice claim, alleging that the defendants failed to appropriately safeguard against the loss of instruments and negligently delayed finding the missing needle. The hospital and Iraci moved for summary judgment, though Heymann did not. Faas cross-moved for summary judgment against all three defendants. (By stipulation, the parties agreed to discontinue the action against a third physician, Ginger Isom-Batz.) After finding that Faas satisfied his burden of presenting a prima facie case, Justice Bransten ruled that Heymann failed to present sufficient evidence to warrant a trial. EXPERT’S AFFIDAVIT Faas based his motion on an affidavit submitted by an internist. Citing the plaintiff’s medical records, the doctor opined that “Dr. Heymann undeniably departed from accepted standards of medical care by losing a needle in Mr. Faas,” according to the decision. Heymann claimed that the physician, because he was not a surgeon, was not qualified to be an expert. Furthermore, the defense claimed, the affidavit was insufficient to establish the plaintiff’s case. Bransten disagreed on both counts. “Case law is clear,” she wrote. “A physician need not practice in the same field as defendants to offer medical evidence.” She added that the doctor made specific reference to the medical records and explained precisely how the defendants “departed from accepted standards of medical care.” Faas’ prognosis is unclear, according to DiPietro. “It’s actually, thankfully, very uncommon that needles are lost in patients,” he said. “But because of that, we really don’t know what effect this will have in the future.” There have been only six reported decisions in New York of cases involving surgical needles left behind in patients, according to a New York Law Journal search. A trial is scheduled to commence on Aug. 2 to determine damages in the case of Heynman and liability in the case of the other defendants.

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