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The court said no to dismissing the case. The defense had expert opinions saying there was no error. But the plaintiffs had their own expert, Dr. Schwab, who said using the cage without extra hardware was below the standard of care. When experts disagree like this, the case must go to trial, not be decided early. The court also allowed the new informed consent claim. The issue had already come up in the initial complaint and during discovery, so adding it caused no unfair surprise.
In April 2015, Vickie Petrolito-McCort had neck surgery called an ACDF. Her surgeon, Dr. Ahmad Latefi, used a device called an ROI-C cervical cage instead of traditional plates and screws. In 2016, she saw a new doctor, Frank Schwab, for ongoing neck and arm pain. Schwab said her vertebrae had not properly fused. He performed a second surgery using plates and screws. In 2017, Petrolito-McCort and her husband sued Dr. Latefi and his medical group for malpractice. The defendants asked the court to dismiss the case. The plaintiffs asked to add a new claim about lack of informed consent.
Two questions came up. First, could the defendants win the case immediately, or did the medical opinions conflict too much for a judge to decide without a trial? Second, should the plaintiffs be allowed to add a new legal claim about informed consent, since the case had already been going on for years?
This case shows that medical malpractice claims often turn on dueling expert opinions. When experts disagree about whether a treatment was proper, courts generally let a jury decide, rather than ending the case early. It also shows that courts may allow new claims to be added later if the other side already knew about the issue.
Talk to a licensed medical malpractice lawyer in New York.